Online Publishing Law

In Venture Tape Corp. v. McGills Glass Warehouse, 540 F.3d 56 (1st Cir. 2008), a case where a company embedded a competitor’s trademarks in its website via metatags and invisible white-on-white text, the First Circuit held that the company infringed its competitor’s marks and upheld the district court’s award of $230,339, representing the defendant’s estimated net profits during the period of infringement, and $188,583 in attorneys fees to the plaintiff.

Metatags are invisible terms embedded into the code of websites, and once upon a time, circa 1995 and 1996, keyword metatags were used by search engines to help them rank sites in search results. Google and most other search engines ignore metatags for search engine ranking purposes, and although the white on white text may have had a nominal effect, the defendant basically wasted about half a million dollars for an activity that may have diverted no customers. It is also critical to note that the Venture Tape court held that, although there was no evidence of actual confusion, actual confusion is not a necessary prerequisite of finding a Lanham Act violation. While formulaically correct in its legal analysis, let’s look at the practical result of the court’s holding. Basically, this holding means that a business entity may be ordered to turn over profits (in fact, all of the profits – 3 years worth) made during a period of embedding a competitor’s trademarks in its metatags and hidden text, even if there are no diverted customers and no customers are even aware of such use, let alone confused, at least in the First Circuit.

The federal courts are, in fact, divided on the issue of whether embedding a competitor’s trademark into metatags of one’s website constitutes a trademark violation. For example, in FragranceNet.com, Inc. v. FragranceX.com, Inc., 493 F.Supp.2d 545 (E.D.N.Y. 2007), the Eastern District of New York held that embedding a competitor’s trademark into the metatags of one’s website is not a “use in commerce” under the Lanham Act. However, in J.G. Wentworth, S.S.C. Ltd. Partnership v. Settlement Funding LLC, No. 06-0597, 2007 WL 30115 (E.D.Pa. January 4, 2007), the Eastern District of Pennsylvania held that such use was a “use in commerce” under the Lanham Act, but the court found that there was no likelihood of confusion arising out of such use. “Due to the separate and distinct nature of the links created on any of the search results pages in question, potential consumers have no opportunity to confuse defendant’s services, goods, advertisements, links or websites for those of plaintiff.” Id. at 8. However, as noted above, some courts, such as the Venture Tape court, will punish you sorely for using a competitor’s trademark in your website’s metatags.

Anonymous blog posting is now the easy way to say how you really feel without any repercussions—or at least you may think. The First Amendment protects one’s right to speak, whether it be openly or anonymously, but it doesn’t give anyone, known or anonymous, a free pass to defame others. But, how does the injured party pursue someone who has defamed them in an online anonymous blog? This is the emerging legal issue discussed in In re: Ottinger v. The Journal News, Index No. 08-03892 (July, 1, 2008).

Petitioners Richard and June Ottinger alleged that defamatory statements were made about them regarding their house-building plans by three anonymous bloggers on a blog hosted by the New York Journal News. Petitioners served The Journal News with a subpoena to ascertain the names of the bloggers, and the News moved to quash.

Turning to persuasive authority from the Superior Court of New Jersey, Appellate Division in Dendrite International v. Doe, 775 A.2d 756 (2001) and the Delaware Supreme Court in Doe v. Cahill, 884 A.2d 451 (2005), the New York court established a standard to determine when expedited discovery should occur and when an internet service provider must disclose the identity of an anonymous blogger who has made allegedly defamatory statements.

Four guidelines were established in Dendrite that the Supreme Court of New York applied to the case at hand.

1. Plaintiffs should take all efforts to notify the anonymous blogger “that they are the subject of a subpoena or application for an order of disclosure, and [the court should] withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application”—i.e., plaintiffs need to post a message on the blog to let the bloggers know they are being subpoenaed.

2. Plaintiffs must identify the exact postings they allege are defamatory.

3. All information must be evaluated to determine whether plaintiffs have a prima facie cause of action. Plaintiffs must produce sufficient evidence supporting all elements of the cause of action.

4. Defendant’s right of free speech must be balanced against the strength of the prima facie case and the necessity for disclosure.

Cahill elaborated on the third step. Evidence of “actual malice” may be required in a defamation suit. However, it is an almost impossible element for the plaintiff to produce evidence for, because it is not within the plaintiff’s control; therefore, the plaintiff is not required to produce evidence on this element.

The court applied each of the four steps to the complaint alleged by the Ottingers and denied the New York Journal News’ motion, ordering the newspaper to disclose all pertinent information on the anonymous bloggers within five days.

In other words, do not automatically assume the Internet is a free-for-all forum where you can remain in the shadow of your words—light may be shed on your identity at the other end of the tunnel.

Rachel Gauchman is a second year law student at New York Law School interning at Jacobs deBrauwere this summer. sony pcg-z1, samsung digital camera lg 26lc2r
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In what many see as yet another victory for Google and defeat for trademark advocates, American Airlines has settled its action against Google on undisclosed terms, with both sides paying their own legal fees.

In a lawsuit filed in August 2007, American Airlines claimed that Google violated its trademark rights by allowing competitors to bid on keyword search text containing its brand name in order to generate “sponsored links” on search result pages. Google claimed that this “invisible use,” which did not generate any advertisements using American Airlines’ name, did not violate any trademark.

While the precise impact of the settlement on use of the term “American Airlines” as a keyword search term is not known, Google may have agreed to halt bidding on “American Airlines” as a keyword. In several searches conducted by our office, no sponsored link (other than those sponsored by American Airlines itself) appeared when a Google search was conducted using “American Airlines.” In contrast, Google searches on other airlines generated numerous sponsored links by discount airfare vendors.

Whatever its agreement with American Airlines, however, it is clear that, at least for the moment, Google remains free to allow competitors to bid on keyword search text for other trademarks.

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