Laws of .com

Volume VIII, Issue 1: January 7, 2010

Ontario Court Rules not to Allow Insurer Access to Plaintiff’s Facebook Account

Google Can’t Win Groovle.com in Domain Name Dispute

i4i and its $290M Award Survive Microsoft Appeal

Kodak, Samsung Agree to Settle Patent Lawsuit

Apple and Nokia Patent Battle Escalates

China Moves to Create List of Approved Websites

Apple Wins Ruling on Alleged iPod Hearing Loss Claim

Ontario Court Rules not to Allow Insurer Access to Plaintiff’s Facebook Account

In Schuster v. Royal & Sun Alliance Insurance Company of Canada, the Ontario Superior Court of Justice decided that a defendant insurer is not automatically allowed access to the private Facebook account of a plaintiff in a personal injury claim. The plaintiff had sued her insurer to obtain compensation for injuries she sustained in a motor vehicle collision. The insurer learned that the plaintiff had a Facebook account with a private designated area that only allowed access to those permitted by the plaintiff. The insurer sought: 1) “an interim order without prior notice to the plaintiff, preventing her from deleting any of the content from the account”; and 2) “an order requiring her to produce the content for the defendant’s inspection”, in the hopes of obtaining evidence regarding the plaintiff’s injuries.

In determining whether the insurer could have access to the private Facebook area, the Court clarified the precise nature of the order that the insurer was seeking as it was unclear whether the insurer wanted access to the Facebook website itself or to simply preserve the content of the webpage. The Court stated that access to the plaintiff’s website was invasive and it further observed that such a remedy has not yet been granted in similar cases. The Court stated that if the insurer was indeed seeking access to the private and restricted Facebook profile, it would refuse this request.

On the issue of an ex parte interim injunction, the Court found that although there was a serious issue to be tried, the remaining prongs of the test for an interlocutory injunction were not satisfied. There was no proof of irreparable harm because no evidence was presented that the plaintiff’s Facebook account did indeed contain relevant evidence. The insurer did not provide evidence that the plaintiff failed to disclose all of the relevant documents in her Affidavit of Documents. In addition, the balance of convenience test was not satisfied because the insurer was at liberty to cross-examine the plaintiff on her Affidavit of Documents and did not do so. As a result the Court granted the insurer leave to cross-examine the plaintiff on her Affidavit with conditions attached.

For a copy of the decision (Ontario Superior Court of Justice), visit:
http://tinyurl.com/yb9dnlc

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Google Can’t Win Groovle.com in Domain Name Dispute

Google Inc. failed to win its arbitrated domain name dispute against groovle.com registrant, 207 Media Inc., of Oakville, Ontario. The loss represents only the second failure by Google to obtain a domain name transfer or cancellation in over 60 similar proceedings.

207 Media operates groovle.com to provide custom search services in accordance with Google’s own custom search interface and pursuant to a contract to provide Google Pay Per Click (“PPC”) advertisements via customized start pages. Users of groovle.com services see advertisements provided by Google, and Google pays a small percentage of the PPC advertising revenues to 207 Media. Following earlier exchanges with Google, 207 Media removed references to Google on its site and entered a disclaimer of any association. Google was not satisfied.

In its complaint under the domain name Uniform Dispute Resolution Policy, (“UDRP”), specifically para. 4(a) thereof, Google alleged that the domain name was confusingly similar to its famous GOOGLE mark. Google further alleged that 207 Media had no legitimate interest in respect of the domain name and that current use of the groovle.com domain name, in association to a website that offers services that are connected to Google, constituted bad faith use and registration. The arbitration panel reviewing the matter dismissed the complaint for failing to satisfy the first requirement: it found that the inclusion of the letters “r” and “v” were sufficient to distinguish the domain name, clearly transforming the predominant word of the domain to “groove” or “groovy”, not GOOGLE. As such, it created an entirely new word and conveyed an entirely singular meaning from the mark, and it was not confusingly similar.

For additional information, visit:
http://news.bbc.co.uk/2/hi/technology/8435576.stm
http://tinyurl.com/GlobeMail-groovle

For a copy of the decision, visit:
http://domains.adrforum.com/domains/decisions/1293500.htm

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i4i and its $290M Award Survive Microsoft Appeal

In a decision widely publicized in Canada, on December 22, 2009, a 3 judge panel of the U.S. Court of Appeals for the Federal Circuit of Washington upheld the ruling from Texas that Microsoft “wilfully” infringed i4i’s U.S. patent 5,787,449 in its use of custom XML script in the ubiquitous Microsoft Word 2007 software, as well as some versions of Word 2003.

The injunction is set to take effect (only in the U.S.) on January 11, 2010. Microsoft has distributed its patch to design around the Word 2007 infringement for existing copies as well as a purportedly non-infringing Word 2007. The injunction does not apply to Word 2003, and there is currently no patch to render Word 2003 non-infringing. Microsoft may continue to appeal the judgment to the other 9 judges at the U.S. Court of Appeals level or to the U.S. Supreme Court.

It is expected that i4i will now pursue other suspected infringers on the strength of this verdict.

For a previous i4i Press Release in this matter, visit:
http://www.i4i.com/collateral/05-26-09-Release-Jury_orders_Microsoft_to_pay_i4i.pdf

For the December 22, 2009 Microsoft Press Release, visit:
http://www.microsoft.com/Presspass/press/2009/dec09/12-22statement.mspx

For additional information, visit:
http://tinyurl.com/yea9bgt
http://tinyurl.com/y8u2fnr
http://tinyurl.com/y8de6tj

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Kodak, Samsung Agree to Settle Patent Lawsuit

Eastman Kodak announced on December 22, 2009 that it has agreed to settle a patent infringement lawsuit over digital camera technology with Samsung Electronics. The announcement was made less than a week after an administrative judge at the U.S. International Trade Commission (ITC) initially ruled that the Korean electronics giant had infringed Kodak’s patents related to image capture, compression, data storage, and image preview. According to a complaint filed by Kodak in November 2008, Samsung infringed on Kodak’s patents by importing and selling in the U.S. mobile phones using such technology.

Once the settlement agreement is finalized, Kodak will move for the dismissal of the complaint against Samsung. According to Kodak, the settlement will include the two companies entering into a cross license agreement and Samsung making a non-refundable, one-time payment toward its future royalty obligations to Kodak. Any settlement between the two companies will also prevent the case from being elevated to the full six-member commission, which reviews initial rulings of ITC judges. Should the commission agree with the ITC judge that Samsung violated Kodak’s patents, the commission has the authority to ban the importation of Samsung’s infringing mobile phones.

For additional information, visit:
http://tinyurl.com/yb6sjru

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Apple and Nokia Patent Battle Escalates

Apple and Nokia are currently engaged in a high stakes patent dispute which is pending before the U.S. District Court of Delaware. In October, Nokia filed suit claiming Apple infringed ten of its patents relating to wireless technology. Apple counterclaimed that Nokia was infringing a number of its implementation patents dealing with human interface technologies. Products at stake include the iPhone and MacBook.

Nokia has also sought an Order from the United States International Trade Commission, which would prohibit Apple from importing many of its devices which are manufactured overseas. Much rides on this case for Apple, and a reasonable settlement figure would likely involve hundreds of millions of dollars.

For additional information, visit:
http://tinyurl.com/ycw55w3

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China Moves to Create List of Approved Websites

China has issued new Internet regulations in an effort to create a “whitelist” of approved websites, whereby Chinese Internet users would only be able to access the sites on the whitelist. Such regulations could have the effect of limiting a significant portion of the Internet to Chinese readers.

While the new rules did not specify whether the measure applies to foreign websites, it is most likely that foreign websites will also need to register in order not to be blocked. There is also concern that the registration requirement could be a barrier to trade, if Chinese citizens are prevented from accessing legitimate overseas businesses.

China has banned a number of popular websites and Internet services in 2009, including YouTube, Twitter, Flickr and Facebook, as well as Chinese content sharing sites.

For additional information, visit:
http://tinyurl.com/yezzl2x

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Apple Wins Ruling on Alleged iPod Hearing Loss Claim

A 2008 District Court ruling that Apple Computer Inc. is not responsible for noice-induced hearing loss among iPod users has been affirmed by a U.S. Federal Appeals Court. The Court rejected claims that iPod digital music players were not fit to be sold because the earbuds are to be placed deep inside the ear canal on the basis that it was not alleged by the Plaintiffs that iPods failed to perform the function they were designed for. The Plaintiffs also failed to prove that they or any other users had suffered, or that it was substantially evident they would suffer, hearing loss due to use of the devices. The Plaintiffs' plea of potential risk to themselves and other unidentified users lacked enough certainty to support the claim. Although iPods play music up to 115 decibels and the devices do not carry notices of the volume capacity, the user manuals includes a noise warning sufficient to meet safety and disclosure standards.

For additional information, visit:
http://www.cbc.ca/health/story/2009/12/30/ipod-hearing-class-action.html

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