Lawyers in Silicon Valley are dealing with a new wave of privacy class actions involving online advertising. Plaintiffs accuse companies of misdeeds ranging from improperly selling users' information to tracking consumers' online activity without their consent or knowledge. There's one thing defense and plaintiffs' attorneys can agree on: Current U.S. laws do not clearly define what online companies can and can't do, nor what remedies are available for violations.
In Part One of this article, in the December 2010 issue, the author detailed some recent online frauds and scams involving the use of a company's intellectual property. Part Two finishes that examination and provides some preventive measures that can be taken to avoid being the target of those scams.
In Tiffany v. eBay, the Second Circuit affirmed the District Court's ruling in favor of eBay on the key issue of contributory trademark infringement, as well as direct infringement and dilution, but remanded on the issue of false advertising. The upshot of the holding is that despite a general knowledge that a significant percentage of Tiffany goods sold on eBay were counterfeit, eBay did not have a duty to prevent any such sales unless and until a specific instance of fraud was brought to its attention.
All of our online social interaction has created mountains of personal information about users that, prior to the advent of social networking, would have been regarded as private and difficult to obtain. The potential usefulness of that data in litigation is obvious. With just a few mouse clicks, litigators can investigate the background and views of opposing parties and key witnesses ' as well as potential jurors. The prevalence of social networking data raises novel issues with respect to the use of this information in litigation.
Intellectual Property Review ' Updates and Changes from 2010," Portland, OR, Jan. 21, 2011.
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Last July, Muzak competitor DMX and its Weil, Gotshal & Manges lawyers won a licensing fee ruling against Broadcast Music Inc. that had the potential to revolutionize the background music industry. Now the revolution continues: U.S. District Judge Denise Cote of the Southern District of New York has ruled that DMX must pay ASCAP a fee of only $13.74 to license ASCAP music in each of the 95,000 stores, restaurants and other locations that DMX supplies with background music. ASCAP wanted DMX to pay almost $50 per location.
Billionaire Ronald Perelman has to pay $4.3 million to a film company he formed with his ex-wife, Ellen Barkin, despite Perelman's claim that the actress' breach of the couple's separation agreement relieved him of his financial obligations to the company, the New York Appellate Division, First Department ruled.
