Two big Internet law decisions, affecting copyright and trademark law, were launched into the legal stratosphere yesterday: the U.S. Supreme Courtís MGM v. Grokster decision and the Second Circuitís 1-800 Contacts v. WhenU.com decision.
The Grokster decision stole the headlines, holding that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement."
The end of file swapping?
Under the radar so far is the Second Circuit's WhenU.com decision. Here, the court held:
"WhenU does not Ďuseí 1-800ís trademarks within the meaning of the Lanham Act . . . when it (1) includes 1-800ís website address, which is almost identical to 1-800ís trademark, in an unpublished directory of terms that trigger delivery of WhenUís contextually relevant advertising to C-users; or (2) causes separate, branded pop-up ads to appear on a C-userís computer screen either above, below, or along the bottom edge of the 1-800 website window."
Aside: The Second Circuit likes to refer to "computer users" as "C-users." At first glance, I thought this was drug slang.
Generally, the court did a great job of explaining the issues and analyzing the use in commerce requirement.
As Eric Goldman points out, however, the court passed on the opportunity to clarify the initial interest confusion doctrine and to draw more significant analogies to trademark keying.
Advertisement: Want Larger Analysis? A Better Title? More Beautiful Content? All for Free!! An article examining these 2 cases is in the works for Findlawís Modern Practice. Check the website after the Fourth. http://practice.findlaw.com/Posted by jason allen cody at June 28, 2005 10:18 AM | TrackBack