Latest News 
 
INTELLECTUAL PROPERTY
 
Absent Intent to Divert Customers or Tarnish Mark, Domain Registrations OK Under ACPA 
 
An individual who registered multiple domain names to support an as-yet-undeveloped business idea, without knowledge that another company also used the mark, did not register the domains in bad faith, the U.S. District Court for the Southern District of Texas held Sept. 2.  Because Healix Infusion Therapy (HIT), a trademark holder asserting a cybersquatting claim, failed to show that the registrant, Steven Murphy, knew of HIT's use of the mark when he registered multiple domain names containing the term, intended to divert HIT customers to his websites, or sought to profit from goodwill associated with the mark, Judge Sim Lake granted Murphy's motion for summary judgment.  Healix Infusion Therapy, Inc. v. Murphy, 2008 ILRWeb (P&F) 2605.  Subscribers read more ...

Other Intellectual Property news:
 
·  Mark Use in Metatags, Keyword Ads as Diversion Mechanism Violates Lanham Act
·  Bill Letting DOJ Bring Civil Actions, Creating IP Czar, Clears Senate Panel
·  Litigation May Increase, Calculus May Shift for Those Filing DMCA Take-Downs Post-Lenz
·  Increase in Online Trademark Abuse Brings Host of New Consumer Concerns
·  Website Offering TV Recording Services Violates French Intellectual Property Rights
·  Appeal Mooted by UDRP Winner's Waiver of Rights
 
Subscribers may search ILR's Intellectual Property database

INTERNET COMMERCE 
 
Negative Effects Seen in New Plan to Expand Generic Top-Level Domains 
 
Implementation of new procedures for awarding generic top-level domains (gTLDs) "will bring about the biggest change in the Internet since its inception nearly 40 years ago," a German attorney told a conference on intellectual property here Sept. 8.  But the new system scheduled for launch in the second quarter of 2009 by the Internet Corporation for Assigned Names and Numbers (ICANN) has potential negative effects for intellectual property owners, said Thorsten Bettinger of Bettinger Schneider Schramm in Munich.  Subscribers read more ...
 
Other Internet Commerce news: 
 
·  In Absence of Software License, Parties' Actions Created Implied, Unlimited Use Right
·  Website Feigning State Affiliation Enjoined; Must Disclose Private Status
·  Internet Governance Forum Appoints Seventeen New Multistakeholder Advisors
·  Lost Opportunities Claims Barred by Special Damages Limitation in PayPal Terms of Use
·  European Union Antitrust Unit Launches Investigation of Google-Yahoo Agreement
 
Subscribers may search ILR's Internet Commerce database

FREEDOM OF SPEECH
 
State Ban on False Transmission Data in Bulk E-Mail Violates Right to Anonymous Speech 
 
A Virginia statute that makes it a crime to falsify the transmission information in unsolicited bulk e-mail messages unconstitutionally burdens the First Amendment right to engage in anonymous speech, the Virginia Supreme Court held Sept. 12.  The only way that a person can send an anonymous e-mail message is by employing false routing information such as the sender's IP address or domain name, the court asserted.  Because the Virginia anti-spam statute, Va. Code. §18.2-152.3:1, makes it a crime to disseminate any e-mail with false routing information, the law unconstitutionally burdens e-mail speech by anyone who has a First Amendment right to engage in anonymous speech, Justice G. Steven Agee concluded for a unanimous court.  Jaynes v. Commonwealth of Virginia, 2008 ILRWeb (P&F) 2617.  Subscribers read more ...
 
Subscribers may search ILR's Freedom of Speech database 

TELECOMMUNICATIONS 
 
Battle Intensifies on Both Sides of Free Broadband Network Debate 
 
A coalition of 56 large and small carriers Sept. 10 wrote a letter to the Federal Communications Commission urging it not to impose a free broadband network requirement on the next auction of advanced wireless services spectrum.  In response, an official from M2Z Networks, Inc., which initially proposed the idea of a free broadband network, fired back at the coalition's arguments.  In late August, the FCC's Office of Engineering and Technology announced that it would conduct testing for interference from advanced wireless services operations in the 2155-2180 MHz band.  Subscribers read more ...
 
Other Telecommunications news: 
 
·  FCC Asks Questions, Seeks Comment on Universal Service Fund Management
 
Subscribers may search ILR's Telecommunications database

PRIVACY & SECURITY 
 
Art. 29 Party Cites 'Strong Disagreements' with Recent Google Data Retention Changes 
 
Top European Union data protection officials, known as the Article 29 Working Party, Sept. 16 voiced "strong disagreements" with Google, Inc. over protecting the privacy of Internet users, despite the web search giant's recent decision to scale back the length of time it retains user search data and to make other data protection changes.  Google said in a Sept. 8 letter to the Art. 29 Working Party that it would begin anonymizing Internet protocol addresses associated with search requests after nine months, instead of its previous 18-month retention period.  Subscribers read more ...
 
Other Privacy & Security news: 
 
·  German Data Protection Officials Launch Probe of New Google Web Browser Chrome
·  SCA No Bar to City Worker Text Disclosure, Court Rules, Distinguishing Quon Decision
·  Missouri AG Obtains Injunctions Against Personal Data Seller, No-Call Law Violators
·  EU Welcomes Google Data Retention Changes, but 'Major Disagreements' Remain
·  Panelists Advise Employers to Be Consistent, Fair in Monitoring Employee Online Activities
·  Art. 29 Party, EC, Commerce Team Up for October Global Data Transfers Workshop
·  U.S. Agencies, Vendors Seek Deviations from Some OMB Certification Standards
·  BCRs, Bioethics, Kids on Art. 29 Party's October Agenda
 
Subscribers may search ILR's Privacy & Security database 

TAXATION
 
New York Examines Out-of-State Firm Selling In-State Via Internet, Television 
 
Advertising on satellite and cable television stations, or contractual relationships for the purchase of airtime or advertising in the state alone, will not give an out-of-state seller the physical presence in New York to create nexus with the state, the New York Department of Taxation and Finance advised.  A retailer of gemstone jewelry that sold directly to customers via television and the Internet questioned whether its relationships with a satellite television provider, a television airtime procurer, and various cable television operators required it to be registered for sales tax purposes in New York State and collect the New York State and local sales tax on its sales of tangible personal property within the State.  New York Office of Tax Policy Analysis Advisory Opinion TSB-A-08(36)S, 2008 ILRWeb (P&F) 2491.  Subscribers read more ...

Other Taxation news: 
 
·  Virginia Determines Taxpayer Qualifies for Internet Service Provider Exemption
 
Subscribers may search ILR's Taxation database 

JURISDICTION & PROCEDURE 
 
Website, Plus More, Generates General Jurisdiction 
 
A Nebraska company's highly commercial website, plus its extensive customer base and marketing campaign in Arkansas, provided sufficient contacts for the exercise of general personal jurisdiction over the company in Arkansas, the U.S. District Court for the Western District of Arkansas held Sept. 8.  The company's website, which Judge Harry F. Barnes found was "highly commercial" because it provided pricing information, schedules, and booking information for hunting tours the company offered, may not have, in and of itself, established "continuous and systematic" contacts with the state to form the basis for general personal jurisdiction over the company there, the court held.  Canadian Trophy Quest, Ltd. v. Cabela's, Inc., 2008 ILRWeb (P&F) 2621.  Subscribers read more ...
 
Other Jurisdiction & Procedure news: 
 
·  Website Hosting Links to Others Is Not 'Interactive'
 
Subscribers may search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY 
 
Court Rules Government Must Show Probable Cause to Obtain Cell Phone Historical Location Data 
 
The government may not rely on a mere assertion of reasonable relevance to an ongoing criminal investigation to force a cell phone service provider to reveal stored phone location tracking data, but instead must meet the Fourth Amendment probable cause standard, the U.S. District Court for the Western District of Pennsylvania held Sept. 10.  In what appears to be the first ruling by a court to extend the warrant requirement to stored cell phone tracking data, Judge Terrence F. McVerry affirmed the Feb. 22 ruling of Magistrate Judge Lisa Pupo Lenihan.  In re Application of the United States of America for an Order Directing Provider of Electronic Communication Service to Disclose Records to the Government, 2008 ILRWeb (P&F) 2619.  Subscribers read more ...
 
Other Criminal Liability news: 
 
·  House Approves Computer Crime Legislation to Increase ID Theft Prosecution, Aid Victims
·  Warrant Authority of §2703 Not Limited by Rule 41
 
Subscribers may search ILR's Criminal Liability database 

Latest Cases 
 
·  Application of the United States of America for an Order Directing Provider of Electronic Communication Service to Disclose Records to the Government, In re, 2008 ILRWeb (P&F) 2619 [WD Pa] (Court rules government must show probable cause to obtain cell phone historical location data)
·  Asset Marketing Systems, Inc. v. Gagnon, 2008 ILRWeb (P&F) 2609 [9th Cir] (In absence of software license, parties' actions created implied, unlimited use right)
·  Canadian Trophy Quest, Ltd. v. Cabela's, Inc., 2008 ILRWeb (P&F) 2621 [WD Ark] (Nebraska company's highly commercial website, plus its extensive customer base and marketing campaign in Arkansas, provided sufficient contacts for the exercise of general personal jurisdiction)
·  Capital Corp. Merchant Banking, Inc. v. Corporate Colocation, Inc., 2008 ILRWeb (P&F) 2489 [MD Fla] (Defamation claims not barred by CDA)
·  Flagg v. City of Detroit, 2008 ILRWeb (P&F) 2483 [ED Mich] (Business-related text messages sent between city employees are discoverable, and the SCA does not override the city's obligation to disclose the messages for an in camera review)
·  Happy Chef, Inc. v. Dauben, 2008 ILRWeb (P&F) 2493 [D NJ] (Texas corporation's website, which contained hyperlinks to third party sites, was not "interactive" and could not form the basis for specific personal jurisdiction in N.J.)
·  Healix Infusion Therapy, Inc. v. Murphy, 2008 ILRWeb (P&F) 2605 [SD Tex] (Absent intent to divert customers or tarnish mark, domain registrations OK under ACPA)
·  Jaynes v. Commonwealth of Virginia, 2008 ILRWeb (P&F) 2617 [Va Sup Ct] (State ban on false transmission data in bulk e-mail violates right to anonymous speech)
·  Mailplanet.com, Inc. v. Lo Monaco Hogar, S.L., 2008 ILRWeb (P&F) 2499 [11th Cir] (Party who was dissatisfied with the outcome of a UDRP arbitration decision may not appeal if the winning party subsequently foregoes its interest in the disputed name)
·  Mehmet v. PayPal, Inc., 2008 ILRWeb (P&F) 2495 [ND Cal] (Consequential damages waiver contained in PayPal's terms of use precludes a loss of business opportunities claim arising from PayPal's blocking of a payment flagged by its fraud detection system)
·  M6 Web v. Wizzgo.com, 2008 ILRWeb (P&F) 2497 [TGI Paris (France)] (Website offering TV recording services violates French intellectual property rights)
·  New York Office of Tax Policy Analysis Advisory Opinion TSB-A-08(36)S, 2008 ILRWeb (P&F) 2491 [NY Dep't Tax Fin] (New York examines out-of-state firm selling in-state via Internet, television)
·  Online Divorce, In re (Assurance of Discontinuance), 2008 ILRWeb (P&F) 2615 [Wash Super Ct] (Company that advertised online divorce services agrees to stop providing legal advice to Washington residents)
·  Soilworks, LLC v. Midwest Industrial Supply, Inc., 2008 ILRWeb (P&F) 2485 [D Ariz] (Use of competitor's mark in website metatags and advertising keywords to divert customers generated "initial interest confusion")
·  TrafficSchool.com, Inc. v. eDriver, Inc. (Order Finding Defendants Liable for False Advertising), 2008 ILRWeb (P&F) 2109 [CD Cal] (Private company offering driver education services at dmv.org domain liable for false advertising under the Lanham Act because it capitalized on incorrect assumption that courses advertised on the site were state-sponsored)
·  TrafficSchool.com, Inc. v. eDriver, Inc. (Judgment and Permanent Injunction), 2008 ILRWeb (P&F) 2487 [CD Cal] (Private company offering driver education services at dmv.org domain must create an acknowledgement splash page to alert visitors that site is not affiliated with any state government agency)
·  UMG Recordings, Inc. v. Doe, 2008 ILRWeb (P&F) 2613 [ND Cal] (Record companies have leave to serve subpoena on university, but the return date must be reasonably calculated to permit the university to notify the student and the student's parents)
·  United States v. Berkos, 2008 ILRWeb (P&F) 2611 [7th Cir] (Government's authority to obtain electronic communications with an out-of-district warrant under 18 USC §2703(a) is not hindered by the substantive jurisdictional limitations of Fed. R. Crim. Pro. 41(b))
·  United States v. Joseph, 2008 ILRWeb (P&F) 2607 [2d Cir] (Conviction for violation of 18 USC §2422(b) cannot stand where jury was permitted to convict on an invalid legal basis)
·  Virginia Tax Commissioner Ruling PD 08-133, 2008 ILRWeb (P&F) 2357 [Va Tax Comm'r] (Virginia determines taxpayer qualifies for Internet service provider exemption)
 
Subscribers may search ILR's Cases database

Latest Pleadings, Motions, & Briefs 
 
·  Jones Day v. BlockShopper LLC (Amended Complaint), 2008 ILRWeb (P&F) 2420 [ND Ill] (Law firm sues residential real estate website for using Jones Day service marks and linking articles to the Jones Day website)
 
Subscribers may search ILR's Pleadings database 

Latest Research from Pike & Fischer

Broadband-enabled Gaming Environments - New! 
The level of quality, realism and interactivity of online games has improved considerably in recent years, resulting in richly detailed worlds that feature virtual communities. We believe the evolution of online gaming presents an opportunity for some broadband service providers to tailor packages toward a growing customer base and thus benefit from service premiums and the resulting boost in ARPU. We forecast that the online gaming market will generate annual revenues nearing $2 billion by the end of the decade. In this report, we provide a detailed overview of the online gaming industry and project revenues and global market share out to 2013. We also provide a case study of a popular online game, and detail the opportunities and risks such games create for service providers.  Learn More  Order Now

Cable Advanced Advertising Market Outlook - New!  
The cable industry hopes to increase its advertising revenue to as much as $15 billion a year once it has effectively deployed standardized advanced advertising technology capable of supporting addressable, interactive advertising on a wide scale.  A number of the largest cable MSOs have invested in Canoe Ventures, a joint venture focused on the development of advanced advertising capabilities to enable marketers to reach very specific subsets of viewers with their messages. But the ultimate value of theinvestments in these advertising technologies will be significantly less than the industry is hoping. In this detailed analysis we examine cable's new advertising initiatives, and provide a forecast of advertising revenue growth over the next five years.  Learn More  Order Now

Events & Conferences 
 
New Regs and Spam: Legal Nuances and Successful Litigation Tactics Under CAN-SPAM
October 28, 2008, 2:00 pm EST - Register Now!
Pike & Fischer has gathered top legal experts from the government and the private sector to address the implications of the latest CAN-SPAM regulations and their effect on marketing agreements with business partners.  Our exclusive webinar will also provide the latest in litigation strategies for lawyers representing marketers and ISPs.  Learn what to include in affiliate marketing contracts, which elements are necessary to withstand a motion to dismiss, what laws apply to text messages and mobile devices, and much more!  Register Now


Retransmission Consent Fees, Tying, and Bundling: A Pike & Fischer Webinar
September 23, 2008, 2:00 pm EST - Register Now!
With dollars at stake and the value of video programming under the microscope as the DTV transition unfolds, negotiations over carriage and programming have never been so uncertain and so critical.  As the FCC's October 1, 2008 must carry/retransmission consent election deadline looms, broadcasters' carriage negotiations with cable and satellite operators are heating up like never before.  At stake: the availability of local broadcast signals to the nation's cable and satellite subscribers, as well as millions of dollars in fees and ad revenues.  Join experts from the cable, satellite, and broadcasting sectors and take a front-row seat for a lively discussion of current business and legal issues in retransmission consent negotiations, the competitive marketplace for video distribution, and access to video programming.  Learn More  Register Now

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