Laws of .com

Volume VII, Issue 18: December 3, 2009

Lawsuit Alleges Use of Search-Engine Keywords Violates Privacy Laws

Facebook Photos Lead to Loss of Sick-Leave Benefits

Chinese Court Orders Microsoft to Cease Sales of Chinese Windows

Klausner Sues Motorola and RIM for Visual Voicemail Patents

Apple Sues Vendor over Infringing Power Adapters

Domain Name Dispute Decided for ontariocollege.ca

Mininova Removes Links to Copyrighted Material

Business Fined for Copyright Infringement through WiFi Hotspot

Lawsuit Alleges Use of Search-Engine Keywords Violates Privacy Laws

Habush Habush & Rottier, a Wisconsin personal injury law firm ("Habush & Rottier"), has sued Cannon & Dunphy Attorneys, another Wisconsin personal injury law firm ("Cannon & Dunphy").  The claim alleges that Cannon & Dunphy violated Wisconsin's privacy laws by paying Google Inc. for the keywords, "Habush" and "Rottier", such that a Google search using those terms would not only display the website of Habush & Rottier, but a sponsored link of Cannon and Dunphy as well. 

Specifically, Wisconsin's privacy laws prohibit the use of any living person's name for advertising purposes unless consent is provided.  Some legal experts, however, suggest that Habush & Rottier's privacy argument is unlikely to succeed since the purpose of such a law is really to prevent the misuse of peoples’ names and images in false endorsements.  The use of "Habush" and "Rottier" as keywords, in this case, does not appear to involve such misuse. 

The more common approach to challenging online keyword use is to allege trade-mark infringement.  It was on this basis that American Airlines had sued both Google and Yahoo Inc. for infringing its trade-mark, "AAdvantage", which was purchased and used as a keyword by competitors of American Airlines.  The lawsuit against Google was, however, dismissed last year, while the suit against Yahoo continues.

For additional information, visit:
http://tinyurl.com/ycpubk9

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Facebook Photos Lead to Loss of Sick-Leave Benefits

A woman diagnosed with clinical depression recently had her sick-leave benefits terminated after her employer’s insurance company found photos of her on Facebook. Nathalie Blanchard of Bromont, Québec has been on long-term sick-leave for more than 18 months, battling severe chronic depression. This fall Manulife, her insurance provider, terminated her benefits. Ms. Blanchard alleges that Manulife stated it terminated her benefits due to photos she posted on Facebook that showed she was able to work. These photos showed her at a Chippendales bar show, at her birthday party and on a beach vacation. Ms. Blanchard has stated that she took trips based on her psychiatrist’s advice.

Ms. Blanchard has filed a lawsuit against Manulife to have her benefits reinstated. According to her lawyer, while Manulife has a right to investigate beneficiaries suspected of cheating and to use Facebook as a trigger for the investigation, the company cannot terminate Ms. Blanchard’s benefits solely based upon Facebook photos. While Manulife has refused to comment specifically on Ms. Blanchard’s case, it has said: “We would not deny or terminate a valid claim solely based on information published on websites such as Facebook.”

Ms. Blanchard’s case will be heard before the Quebec Superior Court on December 8, 2009.

For additional information, visit:
http://tinyurl.com/yhyrwzc

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Chinese Court Orders Microsoft to Cease Sales of Chinese Windows

Zhongyi Electronic has obtained a court order in a licensing dispute over fonts with Microsoft Corp. The order prohibits the sales of certain versions of Windows that incorporate the Chinese technology company’s Chinese font designs. Zhongyi claims the license covered the Windows95 version but not more. The ruling affects XP and earlier versions and is likely to be appealed by Microsoft.

Chinese companies are increasingly relying upon their own IP in disputes with Chinese and foreign companies. However, despite the strides made by domestic companies and Chinese courts, piracy remains a major concern for software companies.

For additional information, visit:
http://www.reuters.com/article/technologyNews/idUSTRE5AH0M020091118
http://www.smartmoney.com/news/ON/?story=ON-20091119-000418

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Klausner Sues Motorola and RIM for Visual Voicemail Patents

On November 23, 2009, Klausner Technologies Inc., which holds 25 patents for visual voicemail technology, commenced actions against Motorola Inc. and Research In Motion, in the U.S. District Court for the Eastern District of Texas, alleging that the cell phone manufacturers’ new models infringe its patents. Klausner has sued various mobile operators and manufacturers in the past, and apparently has negotiated patent licenses with many of them. The latest foray into Texas court is interesting in that prior models of Motorola and Blackberry devices with visual voicemail are licensed under the patents, but not the latest ones.

For additional information, visit:
http://www.reuters.com/article/CMPSRV/idUSN2326251620091123
http://tinyurl.com/ylbpvw3

For a synopsis of prior Klausner visual voicemail litigation, visit:
http://tinyurl.com/yld7549

For a copy of the suit, visit:
http://www.heydary.com/internet-laws/klausner.pdf

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Apple Sues Vendor over Infringing Power Adapters

Apple is suing Media Solutions Holdings in the California Central District Court for infringing Apple’s patent in the design of its power adapters. The power adapters in question are packaged with Apple's MacBook and MacBook Pro notebooks, and are sold separately in Apple online and retail stores. Media Solutions Holdings sells a variety of its own electronic accessories for brand name products through several websites, and until recently, sold a cheaper Apple-compatible adapter under the name “Apple MacBook Pro Adapter (100% OEM Compatible)”.

For additional information, visit:
http://tinyurl.com/ybnxxg9

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Domain Name Dispute Decided for ontariocollege.ca

In OCAS Application Services Inc. v. iREx Corp., the Canadian Internet Registration Authority (“CIRA”) held that although OCAS, the complainant, had an honest but mistaken belief that it had common law trade-mark rights to its registered domain name, ONTARIOCOLLEGES.CA, it had “not discharged the burden to establish that it had rights in a mark upon which the registered domain name might infringe, and therefore that the ‘confusingly similar’ inquiry was not justiciable.”

The Ontario College Application Service (“OCAS”) is an Ontario corporation established in 2001 in order to provide a centralized system for college applications in Ontario. It claimed common law rights in the mark ONTARIOCOLLEGES.CA and had registered it as a domain name on March 5, 2002. iREx, the Registrant, is an Ontario company that is in the business of obtaining generic domain names and providing for their use by advertisers. It registered ONTARIOCOLLEGE.CA on February 14, 2003. The Complainant alleges that the Registrant’s domain name is confusingly similar to its mark.

The 3-member CIRA panel reasoned that, “mere registration of a domain name will not secure trademark rights in a domain name.” The registrant has to provide evidence that they have actually used the domain name in association with the goods and services. Although OCAS started using the ONTARIOCOLLEGES.CA website in 2002, it was revealed that the website in fact merely contained a message stating that the website was down. OCAS also filed insufficient evidence of its print publications containing its domain name in 2002. The Panel did not order the disputed domain name transferred to OCAS.

For additional information, visit:
http://www.cira.ca/assets/Uploads/00130-ontariocollege.ca.pdf

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Mininova Removes Links to Copyrighted Material

In response to pressure from a Dutch anti-piracy group “BREIN”, Mininova, one of the largest torrent file-sharing websites in the world has removed links to all copyrighted material. Founded in 2005 by five Dutch students, Mininova grew to become one of the largest “free” file sharing websites while boasting advertising revenues in excess of one million euros in 2007. The recent concession stemmed from a ruling handed down in August wherein a judge ordered that the links be removed within three months or face a penalty of up to five million euros.

For additional information, visit:
http://tinyurl.com/yayq9nm
http://www.cbc.ca/technology/story/2009/11/26/mininova-removes-torrents.html

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Business Fined for Copyright Infringement through WiFi Hotspot

A pub owner in the UK has been ordered to pay £8,000 because a customer used its WiFi Internet access to illegally download copyrighted material. This case was the first of its kind. However, in light of pending legislation these types of actions may become impossible, as hotspot owners would appear to be exempt from liability in respect of the misconduct of members of the public using their services under the proposed Digital Economy Bill.

For additional information, visit:
http://tinyurl.com/yz5mjo3

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