e-Commerce Docket Sheet

“Internet initial interest confusion,” which occurs when a consumer seeks a trademark owner's Web site with the assistance of a search engine and is directed to a Web site with a similar address, is actionable only with a showing of intentional deception by the defendant. Savin Corp. v. The Savin Group, 2004 U.S. App. LEXIS 25479 (2d Cir. Dec. 10, 2004). The circuit court commented that a showing of intentional deception is required to show actionable confusion in such cases, “because consumers diverted on the Internet can more readily get back on track than those in actual space.” The court upheld the trial court's evaluation of the “Polaroid factors” in dismissing a Lanham Act infringement claim brought by the senior user of a mark against a junior user, including its conclusion that the junior user did not act in bad faith in registering domain names that included the plaintiff's trademark. The court remanded, however, for reevaluation of the plaintiff's federal and state trademark dilution claims, including an analysis of whether the senior and junior marks were identical.

Modifications to terms of service (TOS) that by the terms of the TOS apply only to the use of the service after the date of the modifications are not binding on a user if there is no evidence 1) that the user used the service after the date of the modifications; and 2) that the user's claims related to use before the modifications. BellSouth Communications System, LLC v. West, 2004 Ala. LEXIS 326 (Dec. 3, 2004). The court noted that the service agreement provided that posted modifications to the agreement would apply “as to service used by [the subscriber] after the date of such changes.” Because the subscriber's claims concerned alleged overcharges that occurred after the date the modifications were posted, but there was no evidence that the subscriber had used the service after that date, the court ruled that the arbitration clause contained in the modified agreement did not apply to the dispute.

The user of an online service who logs on using another subscriber's account is bound by the subscriber's terms of service, even if the user did not read or assent to those terms. Motise v. America Online Inc., 2004 U.S. Dist. LEXIS 24194 (S.D.N.Y. Nov. 30, 2004). Acknowledging a lack of supporting case law directly on point, the court held that the forum-selection clause in the terms of service to which the subscriber assented is enforceable against the subsequent user as a “sublicensee” of the subscriber's account. Any other conclusion regarding the applicability of the terms of service, the court commented, would give the subsequent user greater rights than the subscriber whose account was being used. The court rejected the argument that the enforceability of the clause depended on whether the user had received constructive notice of the terms of service, although the court noted that those terms were readily available to the user while online via hyperlinks.

Issues of material fact preclude a grant of summary judgment dismissing claims that a game company breached its obligations to a licensee of its online game engine. The Upper Deck Company, LLC v. Breakey International, 2004 U.S. Dist. LEXIS 25679 (S.D.N.Y. Dec. 23, 2004). The court noted that the defendant alleged that the agreement obligated it only to supply source code and “digitized assets” necessary to enable the licensee to create a Web site that would enable the playing of an online game in a manner similar to the defendant's existing Dutch-language Web site. The plaintiff claimed that the defendant breached its obligation by failing to provide materials that would enable creation of an online game Web site that would simultaneously support thousands of multilingual players. The court concluded that the language at issue was susceptible of more than one reasonable interpretation, including those proffered by the plaintiff and the defendant, and thus summary judgment could not be granted and parole evidence might be admissible.

Internet Initial Interest Confusion
Requires Intentional Deception

“Internet initial interest confusion,” which occurs when a consumer seeks a trademark owner's Web site with the assistance of a search engine and is directed to a Web site with a similar address, is actionable only with a showing of intentional deception by the defendant. Savin Corp. v. The Savin Group, 2004 U.S. App. LEXIS 25479 (2d Cir. Dec. 10, 2004). The circuit court commented that a showing of intentional deception is required to show actionable confusion in such cases, “because consumers diverted on the Internet can more readily get back on track than those in actual space.” The court upheld the trial court's evaluation of the “Polaroid factors” in dismissing a Lanham Act infringement claim brought by the senior user of a mark against a junior user, including its conclusion that the junior user did not act in bad faith in registering domain names that included the plaintiff's trademark. The court remanded, however, for reevaluation of the plaintiff's federal and state trademark dilution claims, including an analysis of whether the senior and junior marks were identical.

Modifications to terms of service (TOS) that by the terms of the TOS apply only to the use of the service after the date of the modifications are not binding on a user if there is no evidence 1) that the user used the service after the date of the modifications; and 2) that the user's claims related to use before the modifications. BellSouth Communications System, LLC v. West, 2004 Ala. LEXIS 326 (Dec. 3, 2004). The court noted that the service agreement provided that posted modifications to the agreement would apply “as to service used by [the subscriber] after the date of such changes.” Because the subscriber's claims concerned alleged overcharges that occurred after the date the modifications were posted, but there was no evidence that the subscriber had used the service after that date, the court ruled that the arbitration clause contained in the modified agreement did not apply to the dispute.

The user of an online service who logs on using another subscriber's account is bound by the subscriber's terms of service, even if the user did not read or assent to those terms. Motise v. America Online Inc., 2004 U.S. Dist. LEXIS 24194 (S.D.N.Y. Nov. 30, 2004). Acknowledging a lack of supporting case law directly on point, the court held that the forum-selection clause in the terms of service to which the subscriber assented is enforceable against the subsequent user as a “sublicensee” of the subscriber's account. Any other conclusion regarding the applicability of the terms of service, the court commented, would give the subsequent user greater rights than the subscriber whose account was being used. The court rejected the argument that the enforceability of the clause depended on whether the user had received constructive notice of the terms of service, although the court noted that those terms were readily available to the user while online via hyperlinks.

Issues of material fact preclude a grant of summary judgment dismissing claims that a game company breached its obligations to a licensee of its online game engine. The Upper Deck Company, LLC v. Breakey International, 2004 U.S. Dist. LEXIS 25679 (S.D.N.Y. Dec. 23, 2004). The court noted that the defendant alleged that the agreement obligated it only to supply source code and “digitized assets” necessary to enable the licensee to create a Web site that would enable the playing of an online game in a manner similar to the defendant's existing Dutch-language Web site. The plaintiff claimed that the defendant breached its obligation by failing to provide materials that would enable creation of an online game Web site that would simultaneously support thousands of multilingual players. The court concluded that the language at issue was susceptible of more than one reasonable interpretation, including those proffered by the plaintiff and the defendant, and thus summary judgment could not be granted and parole evidence might be admissible.