e-Commerce Docket Sheet

A competing compiler of Web-based deals that copied another
Web site's selective, daily compilation of online shopping bargains may
be liable for infringement of the plaintiff's copyright in the selection
of those items, if the overlap is substantial. BensBargains.net, Inc. v. XPBargains.com, 2007 U.S. Dist. LEXIS 60544 (S.D. Cal. Aug. 16, 2007). The court ruled that there is a triable issue of fact with respect to those daily copyrighted compilations when the plaintiff demonstrates that the overlap of items is 70% or more. The court granted summary judgment in favor of the defendant on the claims of infringement with respect to the arrangement of the items, but reached a finding of no substantial similarity on a visual comparison of the compilations.

An allegation that payment-processing software installed unauthorized 'spyware' on the purchaser's server that diverted confidential customer data to the software developer makes out a claim under the federal and New Jersey computer-fraud statutes. Slim CD, Inc. v. Heartland Payment Systems, Inc., U.S. Dist. LEXIS 62536 (D. N.J. Aug. 24, 2007). The district court declined to dismiss the software purchaser's claims under the New Jersey statute, rejecting the developer's argument that the statute required a showing of how the developer had used the diverted information for its own benefit. The court also ruled that the purchaser had properly alleged damages in excess of $5,000 within one year under the federal computer-fraud statute.

The use of a domain name that is identical to the defendant's trademark to redirect Web traffic to a search engine in exchange for income from sponsored search results constitutes 'commercial use' under the Lanham Act. Lahoti v. Vericheck, Inc., 2007 U.S. Dist. LEXIS 64666 (W.D. Wash. Aug. 30, 2007). The court declined to grant summary judgment on the defendant's trademark-infringement counterclaims, finding material issues of fact concerning whether likelihood of confusion existed. The court did, however, rule that the plaintiff's use of an identical domain name to direct users to another Web site, coupled with the plaintiff's attempt to sell the domain name to the defendant, constituted commercial use under the Lanham Act

The Anticybersquatting Protection Act ('ACPA') does not prohibit a Web site owner's use of a another's trademark in a Web site file path. Gregerson v. Vilana Financial, Inc. 2007 U.S. Dist. LEXIS 64960 (D. Minn. Aug. 31, 2007). In dismissing the defendant's ACPA counterclaim, the court noted that the plaintiff's use of the defendant's trademark in a URL's file path is not actionable under the statute because the defendant failed to establish that the plaintiff used 'a domain name that is identical or confusingly similar' to the defendants' trademark. The court also dismissed the defendant's trademark-infringement claims based on the use of the defendant's trademark in metatags, rejecting the defendant's initial interest-confusion argument, since the parties were not competitors and the plaintiff's use of the trademark was for critical commentary.

An individual who placed digital copies of copyrighted sound recordings in a shared folder on his computer, and that were available via a peer-to-peer file-sharing system, is liable for direct copyright infringement. Atlantic Recording Corp., v. Howell, 2007 U.S. Dist. LEXIS 81268 (D. Ariz. Aug. 20, 2007). The court granted the recording companies' motion for summary judgment on the issue of infringement, holding that the individual violated the record companies' right of distribution by making the files available in the shared folder. The court rejected the individual's argument that his ownership of the compact discs that contained the disputed recordings was a defense to a charge of infringement, commenting that the individual's 'right to use for personal enjoyment copyrighted works on CDs he purchased does not confer a right to distribute those works to others without Plaintiffs' authorization.'

An online dating service is an 'interactive service provider' entitled to immunity under Section 230 of the Communications Decency Act ('CDA') from liability for false profiles posted by underage users of the service. Doe v. SexSearch.com, Inc., 2007 U.S. Dist. LEXIS 61776 (N.D. Ohio Aug. 22, 2007). The court granted the online dating service's motion to dismiss a user's claims related to his exposure to criminal liability as a result of his encounter with a minor who posted a false profile on the dating service claiming that she was 18 years old. The court also rejected the plaintiff's multiple claims of liability on the merits, concluding, among other things, that the provider's online terms and conditions, which contained a limitation-of-liability clause, were not substantively unconscionable. The court further concluded that the dating service did not have a duty to warn the user that the service might have users who were minors, because it was 'common knowledge that 'young children all over America use the Internet,” and that 'given the 'anonymity of the Internet,' the danger that a minor might enter an adult-only website was open and obvious, as persons wishing to gain access merely had to click a box stating they were above 18 years of age.'

Data Overlap in Online Bargains Buys Triable Copyright Issue

A competing compiler of Web-based deals that copied another
Web site's selective, daily compilation of online shopping bargains may
be liable for infringement of the plaintiff's copyright in the selection
of those items, if the overlap is substantial. BensBargains.net, Inc. v. XPBargains.com, 2007 U.S. Dist. LEXIS 60544 (S.D. Cal. Aug. 16, 2007). The court ruled that there is a triable issue of fact with respect to those daily copyrighted compilations when the plaintiff demonstrates that the overlap of items is 70% or more. The court granted summary judgment in favor of the defendant on the claims of infringement with respect to the arrangement of the items, but reached a finding of no substantial similarity on a visual comparison of the compilations.

An allegation that payment-processing software installed unauthorized 'spyware' on the purchaser's server that diverted confidential customer data to the software developer makes out a claim under the federal and New Jersey computer-fraud statutes. Slim CD, Inc. v. Heartland Payment Systems, Inc., U.S. Dist. LEXIS 62536 (D. N.J. Aug. 24, 2007). The district court declined to dismiss the software purchaser's claims under the New Jersey statute, rejecting the developer's argument that the statute required a showing of how the developer had used the diverted information for its own benefit. The court also ruled that the purchaser had properly alleged damages in excess of $5,000 within one year under the federal computer-fraud statute.

The use of a domain name that is identical to the defendant's trademark to redirect Web traffic to a search engine in exchange for income from sponsored search results constitutes 'commercial use' under the Lanham Act. Lahoti v. Vericheck, Inc., 2007 U.S. Dist. LEXIS 64666 (W.D. Wash. Aug. 30, 2007). The court declined to grant summary judgment on the defendant's trademark-infringement counterclaims, finding material issues of fact concerning whether likelihood of confusion existed. The court did, however, rule that the plaintiff's use of an identical domain name to direct users to another Web site, coupled with the plaintiff's attempt to sell the domain name to the defendant, constituted commercial use under the Lanham Act

The Anticybersquatting Protection Act ('ACPA') does not prohibit a Web site owner's use of a another's trademark in a Web site file path. Gregerson v. Vilana Financial, Inc. 2007 U.S. Dist. LEXIS 64960 (D. Minn. Aug. 31, 2007). In dismissing the defendant's ACPA counterclaim, the court noted that the plaintiff's use of the defendant's trademark in a URL's file path is not actionable under the statute because the defendant failed to establish that the plaintiff used 'a domain name that is identical or confusingly similar' to the defendants' trademark. The court also dismissed the defendant's trademark-infringement claims based on the use of the defendant's trademark in metatags, rejecting the defendant's initial interest-confusion argument, since the parties were not competitors and the plaintiff's use of the trademark was for critical commentary.

An individual who placed digital copies of copyrighted sound recordings in a shared folder on his computer, and that were available via a peer-to-peer file-sharing system, is liable for direct copyright infringement. Atlantic Recording Corp., v. Howell, 2007 U.S. Dist. LEXIS 81268 (D. Ariz. Aug. 20, 2007). The court granted the recording companies' motion for summary judgment on the issue of infringement, holding that the individual violated the record companies' right of distribution by making the files available in the shared folder. The court rejected the individual's argument that his ownership of the compact discs that contained the disputed recordings was a defense to a charge of infringement, commenting that the individual's 'right to use for personal enjoyment copyrighted works on CDs he purchased does not confer a right to distribute those works to others without Plaintiffs' authorization.'

An online dating service is an 'interactive service provider' entitled to immunity under Section 230 of the Communications Decency Act ('CDA') from liability for false profiles posted by underage users of the service. Doe v. SexSearch.com, Inc., 2007 U.S. Dist. LEXIS 61776 (N.D. Ohio Aug. 22, 2007). The court granted the online dating service's motion to dismiss a user's claims related to his exposure to criminal liability as a result of his encounter with a minor who posted a false profile on the dating service claiming that she was 18 years old. The court also rejected the plaintiff's multiple claims of liability on the merits, concluding, among other things, that the provider's online terms and conditions, which contained a limitation-of-liability clause, were not substantively unconscionable. The court further concluded that the dating service did not have a duty to warn the user that the service might have users who were minors, because it was 'common knowledge that 'young children all over America use the Internet,” and that 'given the 'anonymity of the Internet,' the danger that a minor might enter an adult-only website was open and obvious, as persons wishing to gain access merely had to click a box stating they were above 18 years of age.'