Latest News 
 
INTELLECTUAL PROPERTY
 
Use of Trademarks in Keyword Ads Bars Assertion of First Sale, Fair Use Defenses 
 
A company may proceed with a trademark infringement claim against a company that allegedly resold its products online without authorization and purchased keyword advertisements containing its trademarked terms, the U.S. District Court for the Eastern District of Wisconsin held June 6.  The defendant's use of keyword ads containing the plaintiff's trademarks and descriptions of the products on its website using terms such as "we" and "our," could have misled potential customers and precluded its assertion of first sale or nominative fair use defenses, Judge J.P. Stadtmueller held.  Standard Process, Inc. v. Total Health Discount, Inc., 2008 ILRWeb (P&F) 2021.  Subscribers read more ...

Other Intellectual Property news: 
 
·  Copyright Infringement Damages Not Limited by Later Remedial Efforts
·  Use of Trademark in Domain Name, on Website Is Infringing 'Use in Commerce'
·  Employment, IP Issues Intertwine for Start-Ups, Attorneys Warn
·  WIPO Group Coordinators Back 'Legitimacy' of Director-General Selection
·  First Sale Exception Inapplicable to Domestic Internet Sale of Books Manufactured Abroad
·  Proposed Reforms to Update Canada's Copyright Act Draw Mixed Reactions from Industry, Users
·  No Liability Found in Infringement Case Involving Microsoft and Alcatel-Lucent
·  Images Created Using Digital Technology Not Creative If They Are Faithful Copies of Cars
·  Future of Music Licensing, Copyright Protection Debated at Law School Symposium
 
Subscribers may search ILR's Intellectual Property database

INTERNET COMMERCE 
 
Senate Considers Bill That Would Extend CAN-SPAM Coverage to Wireless Devices 
 
A bill introduced in the Senate June 17 would amend the CAN-SPAM Act and the Communications Act to prohibit the sending of unsolicited commercial e-mail advertisements to cellular phones.  Introduced by Sen. Gordon Smith (R-Ore.), S. 3138, the "Do-Not-Text Act of 2008," would also prohibit the sending of commercial messages to wireless numbers listed on the do-not-call registry.  Subscribers read more ...
 
Other Internet Commerce news: 
 
·  OECD Calls for Decentralized Governance of Internet to Widen Its Reach, Potential
·  MySpace Wins $6 Million in Damages, Fees from Colorado Spammer in Arbitration Award
·  Despite Shifting Terrain for ICANN, Entity Unlikely to Undergo Dramatic Change
·  ICANN Offers New Guide to Prospective Operators of New Generic Top-Level Domains
·  ICANN's .xxx Rejection Submitted for Review
 
Subscribers may search ILR's Internet Commerce database

FREEDOM OF SPEECH
 
Web-Posted Statements That Harass, but Do Not Cause Harm Are Not 'Stalking' 
 
Posting derogatory but nonthreatening statements about a person on a website is not "stalking," and will not support a no-contact order under North Carolina law, the North Carolina Court of Appeals held June 17.  To implicate statutory remedies for stalking, Web-published material must do more than harass its subjects, the court said.  Unless the material threatens or causes actual emotional harm, a no-contact order may not be issued.  Ramsey v. Harman, 2008 ILRWeb (P&F) 2045.  Subscribers read more ...
 
Subscribers may search ILR's Freedom of Speech database 

TELECOMMUNICATIONS 
 
House Approves VoIP E-911 Bill, Legislation Now Goes to President 
 
The House June 23 approved by unanimous consent a compromise bill (H.R. 3403) to allow Voice over Internet Protocol (VoIP) providers to offer their customers more reliable E-911 service, clearing the measure for President Bush to sign.  The Senate passed the bill by unanimous consent on June 16.  The bill, called the "New and Emerging Technologies 911 Improvement Act of 2008," was first introduced more than three years ago.  The bill would clarify the Federal Communications Commission's authority to require VoIP providers to offer E-911 service.  Subscribers read more ...
 
Other Telecommunications news: 
 
·  House Democratic Leaders Accept FISA Deal Allowing Telecom Immunity
·  Markey Lists Bills, Hearings Still Left on Subcommittee Agenda
·  FCC Seeks More Public Comment on Free Wireless Broadband Proposal
·  House Approves FISA Bill Allowing Dismissal of Lawsuits Against Carriers
·  Specter Says Courts Should Decide If Wiretap Program Was Constitutional
 
Subscribers may search ILR's Telecommunications database

PRIVACY & SECURITY 
 
SCA Bars Text Message Service from Divulging Stored Messages Without Consent 
 
A text messaging service provider may not, consistent with the Stored Communications Act, surrender transcripts of messages sent without the consent of either the sender or the recipient, the Court of Appeals for the Ninth Circuit held June 18.  The Ninth Circuit held that a text message provider, like an e-mail provider, is an "electronic communication service" under the SCA.  That act bars electronic communication services from disclosing the contents of messages without the consent of either the sender or the recipient.  A request from the account holder—in this case a municipality that distributed pagers to its employees—is not enough, the court said.  Quon v. Arch Wireless Operating Company, Inc., 2008 ILRWeb (P&F) 2027.  Subscribers read more ...
 
Other Privacy & Security news: 
 
·  Proposed Yahoo-Google Partnership Raises Privacy Concerns, Barton Says
·  ISPs Using Tracking Technology to Spy on Customers, Groups Say
·  EU Agency Warns Loss of USB Flash Drives Can Cost Companies $2 Million Per Incident
·  Spyware Bills Fail in Seven States in 2008, Still Alive in Five; Washington Amends Law
·  Connecticut Enacts Data Protection Law with $500,000 Fine for Willful Violations
·  Guidance for Bank Examiners on Identity Theft Rule Expected Early Fall
·  Ask.com Adds Privacy Link on Home Page
 
Subscribers may search ILR's Privacy & Security database 

TAXATION
 
Videos Downloaded, Watched on Web Not Subject to Sales Tax, New York Advises 
 
Movies downloaded via the Internet or viewed on the Internet with the ability to rewind and fast forward are intangible property not subject to sales and use tax, the New York Department of Taxation and Revenue advised May 2.  Google, Inc. asked the department whether the sale of videos delivered electronically over the Internet was subject to sales and use tax.  Subscribers read more ...

Other Taxation news: 
 
·  Businesses Rally for Bill to Eliminate Taxes in States Where They Lack Physical Presence
 
Subscribers may search ILR's Taxation database 

JURISDICTION & PROCEDURE 
 
Company Website Not Clearly Targeting Forum No Basis for General Jurisdiction 
 
A website featuring general company information as well as access to services for company customers cannot form the basis for general personal jurisdiction absent evidence that the site expressly targeted a forum, the U.S. District Court for the Western District of Pennsylvania held June 10.  Judge William L. Standish rejected the plaintiff's argument that the defendant's website should weigh heavily in the general jurisdiction analysis because it formed the "essence of [the defendant's] business."  Nationwide Contractor Audit Service, Inc. v. National Compliance Management Services, Inc., 2008 ILRWeb (P&F) 2035.  Subscribers read more ...
 
Subscribers may search ILR's Jurisdiction & Procedure database

Latest Cases 
 
·  Boston Duck Tours, LP v. Super Duck Tours, LLC, 2008 ILRWeb (P&F) 2039 [1st Cir] (Plaintiff failed to establish a likelihood of success on its claims of trademark infringement, so the district court should not have issued a preliminary injunction)
·  Citizens for Responsibility and Ethics in Washington v. Office of Administration, 2008 ILRWeb (P&F) 2031 [D DC] (Suit seeking disclosure of White House e-mails is dismissed because the Office of Administration is not an "agency" subject to FOIA)
·  Dominick v. MySpace, Inc. (Order to Voluntarily Withdraw Petition), 2008 ILRWeb (P&F) 2043 [Ill Cir Ct] (Elected official seeking to unmask anonymous Internet speaker voluntarily withdraws petition)
·  Federal Trade Commission v. Data Business Solutions, Inc. (Ex Parte Temporary Restraining Order), 2008 ILRWeb (P&F) 1913 [ND Ill] (Judge freezes assets of Canadian operators who deceptively posed as domain name registrars and sent bogus bills to thousands of U.S. small businesses and nonprofits)
·  General Conference Corporation of Seventh-Day Adventists v. McGill, 2008 ILRWeb (P&F) 2023 [WD Tenn] (Use of trademark in domain name, on website is infringing 'use in commerce')
·  Goldman v. Healthcare Management Systems, Inc., 2008 ILRWeb (P&F) 2025 [WD Mich] (Copyright infringement damages not limited by later remedial efforts)
·  It's Just Lunch International LLC v. Dialog Software, 2008 ILRWeb (P&F) 2041 [NAF] (Without evidence that substantially controverts respondent's claim that it had no knowledge of complainant's mark at the time of registration, panel cannot conclude that respondent acted in bad faith)
·  Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 2008 ILRWeb (P&F) 2037 [10th Cir] (Digital renderings whose intent and result was merely to reproduce faithfully the appearance of certain Toyota cars constituted copies of the already existing cars and not creative works)
·  MySpace, Inc. v. Richter, 2008 ILRWeb (P&F) 2029 [Amer Arbit Assn] (MySpace wins $6 million in damages, fees from Colorado spammer in arbitration award)
·  Nationwide Contractor Audit Service, Inc. v. National Compliance Management Services, Inc., 2008 ILRWeb (P&F) 2035 [WD Pa] (Website not targeted specifically to forum does not establish systematic contacts sufficient for court to exercise jurisdiction)
·  Nickolas v. Beshear (Settlement Agreement), 2008 ILRWeb (P&F) 2033 [ED Ky] (Kentucky settles lawsuit with political blogger, agrees to lift ban on blogs on state-owned computers)
·  Pearson Education, Inc. v. Liao, 2008 ILRWeb (P&F) 1909 [SD NY] (First sale exception inapplicable to domestic Internet sale of books manufactured abroad)
·  Quon v. Arch Wireless Operating Company, Inc., 2008 ILRWeb (P&F) 2027 [9th Cir] (Wireless provider liable under SCA for disclosing transcript of employee's text messages to employer)
·  Ramsey v. Harman, 2008 ILRWeb (P&F) 2045 [NC Ct App] (Web-posted statements that harass, but do not cause harm, are not 'stalking')
·  Standard Process, Inc. v. Total Health Discount, Inc., 2008 ILRWeb (P&F) 2021 [ED Wis] (Use of trademarks in keyword ads bars assertion of first sale, fair use defenses)
·  Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 ILRWeb (P&F) 1915 [D Md] (Attorney-client privilege and work-product protection waived by voluntary production of electronic documents; defendants failed to demonstrate that use of keyword search was reasonable)
·  Yahoo! Inc. v. Korshunov, 2008 ILRWeb (P&F) 1911 [NAF] (Domain name is confusingly similar to YAHOO!'s mark because it is comprised of a transliteration of its mark in Cyrillic and is phonetically similar to its mark)
 
Subscribers may search ILR's Cases database

Latest Pleadings, Motions, & Briefs 
 
·  Capitol Records, Inc. v. Thomas (Amici Curiae Brief of Copyright Law Professors in Support of Defendant), 2008 ILRWeb (P&F) 2006 [D Minn] (Amici law professors ask court in P2P infringement suit to reject the RIAA's "making available" theory of copyright infringement)
·  Capitol Records, Inc. v. Thomas (Amici Curiae Brief of Electronic Frontier Foundation, et al. in Support of Defendant), 2008 ILRWeb (P&F) 2004 [D Minn] (Amici ask court in P2P infringement suit to reject the RIAA's "making available" theory of copyright infringement)
·  Capitol Records, Inc. v. Thomas (Amicus Curiae Brief of Motion Picture Association of America, Inc.), 2008 ILRWeb (P&F) 2008 [D Minn] (Amicus MPAA asks court in P2P infringement suit to adopt the RIAA's "making available" theory of copyright infringement)
·  Capitol Records, Inc. v. Thomas (Amicus Curiae Brief of Thomas D. Sydnor of the Progress & Freedom Foundation Opposing Motion for New Trial), 2008 ILRWeb (P&F) 2010 [D Minn] (Amicus Progress & Freedom Foundation asks court in P2P infringement suit to accept the RIAA's "making available" theory of copyright infringement)
·  ICM Registry, LLC v. Internet Corporation for Assigned Names and Numbers (Request for Independent Review Process), 2008 ILRWeb (P&F) 2012 [Int'l Ctr Disp Res] (ICANN's .xxx rejection submitted for review)
·  United States v. Arnold (Brief for Amici Curiae Association of Corporate Travel Executives and Electronic Frontier Foundation in Support of Appellee's Petition for Rehearing En Banc), 2008 ILRWeb (P&F) 2002 [9th Cir] (Amici seek en banc rehearing of case involving suspicionless search of laptop at border)
 
Subscribers may search ILR's Pleadings database 

Latest Research from Pike & Fischer

Communications Industry Survey: Views on the U.S. Economic & Regulatory Climate - New!
Cable, satellite TV and now even telephone companies have been heavily promoting a variety of new video services, ranging from high-definition TV to movies on demand. But communications industry leaders believe the best way to attract and keep customers is by providing the fastest Internet speeds, according to this survey of executives, engineers, consultants, academics, and regulators. The study also discloses what communications executives are planning this year in terms of marketing and sales, capital expenditures, pricing and more. The survey also sheds light on the industry's biggest regulatory concerns as the Bush Administration winds down, and which of the presidential candidates is winning the most favor from the industry. The report includes 28 charts and graphs.

Residential VoIP Pricing Update - June 2008 - New!
This recurring report details the pricing and marketing strategies of residential VoIP services. Companies covered include Comcast, Time Warner Cable, Cox, Verizon, AT&T, Vonage, and Lingo.

Events & Conferences 
 
The Last Beachfront: What's Next for D Block?
A Pike & Fischer Audioconference, June 25, 2008 - Today at 2 pm!
More than six years after 9/11, first responders still lack a nationwide interoperable communications network. And the latest attempt at modernization--the FCC's first attempt to auction the so-called "D Block" of the 700 MHz spectrum band to a public safety-private provider partnership--fell flat. What remains is a superior quality block of spectrum waiting to be dispensed, under rules not yet contrived. Michael Calabrese, Vice President and Director of the Wireless Future Program at the New America Foundation, joins Rini Coran's Robert Rini and Richard Rowlenson, former General Counsel at D Block pioneer Frontline Wireless, for a thoughtful and insight-laden discussion of the issues, challenges, and opportunities still unfolding in the 700 MHz saga.  Learn More  Register Now 


Legal Risk Management Forum: Overcoming Obstacles in the Web 2.0 World
September 16 - 17, 2008 - AED Conference Center - Washington, D.C.
Join us for our second annual legal forum on existing and potential liabilities facing Web 2.0 businesses.  We've expanded our program to include a half-day workshop on Web 2.0 essentials, and we've included panels addressing best practices for monetizing applications tied to personal information, legal remedies for victims of online gossip and rumor, proactive steps for avoiding Attorney General subpoenas, plus a whole lot more!  View the entire program.  Interested in participating in or sponsoring this legal symposium?  Contact Meg Hargreaves at 301-562-1530 x 229.

View all Events & Conferences

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