Laura Quilter and Jennifer
Urban, Director of the Intellectual Property Clinic at the University of
Southern California, have released a summary report of findings from a study of
takedown notices sent pursuant to Section 512 of the Digital Millennium
Copyright Act, and submitted by the recipients to the
Chilling Effects clearinghouse. The
report, titled "Efficient Process or 'Chilling Effects'? Takedown Notices Under
Section 512 of the Digital Millennium Copyright Act," traces the use of the
Section 512 takedown process.
According to the report nearly
one-third of takedown notices submitted to online service providers under the
DMCA are for claims that may not justify takedown. One of 11 notices had
significant statutory flaws (failure to properly identify the allegedly
infringing work, failure to provide contact information, failure to provide a
way to locate the allegedly infringing work etc.), that render them invalid.
Another result of the study:
Businesses targeting apparent competitors accounted for 57 % of the takedown
notices submitted to Google Inc. seeking removal of links from the index.
2. National Arbitration
Forum: Yahoo! v. Bill Skipton
Complainant Yahoo! Inc.
commenced an action against Respondent, Bill Skipton, asserting that
Respondent’s "yprog.com" domain name was confusingly similar to Complainant’s Y!
mark. Respondent was using the disputed domain name to sell software designed to
hack into Complainant’s Yahoo! Messenger software. The Panel noted that the only
similarity between Complainant’s Y! mark and the "yprog.com" domain name was the
letter “y,” which was insufficient to satisfy the first element of the Policy.
"...Thus reduced, this proceeding presents what appears to be a novel
proposition, which is that a single letter of the English alphabet, in this
instance the letter Y, may ground a claim of confusing similarity within the
meaning of Policy... Complainant argues, in essence, that Y can only stand for
Y!. But Y is not Y!. It is no more than a literal truth that the expressive
punctuation for which Complainant is well known is fully half its mark. And, as
was noted in Entrepreneur Media, supra, small differences matter. Indeed,
without the exclamation mark, Y is just Y. It could as easily stand for the
chemical element yttrium, or instead for YMCA, or, particularly aptly here, an
3. National Arbitration
Forum: Link to lawsuit site against mark holder shows bad faith
The complainent owned a
registered trademark for "Champion Mortgage". The respondent used the disputed
domain name "championsmortgageclassaction.com" to redirect users to a commercial
website for respondants gain. This was not a bona fide offering of goods or
services, the panalist said. Although the respondant also provided consumers
with information and services regarding a lawsuit against the Complainant, the
National Arbitration Forum held that the use of a domain to link to a lawsuit
site against the mark holder showes bad faith: "... However, the Panel is not
aware that one suing another who holds a protected trademark acquires some right
to use the targeted litigant’s protected mark in ways that benefit the user and
not the holder of the mark."
24, 2005, Click Defense, a company which provides software to keep track of
Pay-Per-Click advertising, sued Google Inc. in the US District Court in San
Jose, claiming that the search engine has failed to protect users of its
advertising program from "click fraud," costing them at least $5 million.
In December 2005, the company
said in a statement it wanted to withdraw as the lead plaintiff named in the
lawsuit in order to focus on its own business. "We remain a member of the class
and our click fraud claims against Google will still be litigated when and if
the class is certified." Scott Boyenger, Click Defense's Chief Executive Officer
is quoted. AIT, a $34 million-a-year Internet service provider serving customers
in the mid-Atlantic states and the Carolinas, said it plans to take over as
A hearing on the motion for
class certification in the Google click fraud case has been scheduled for May of
December 9, 2005:
Click fraud suit changes hand, The Register:
"Click Defense, a web analytics firm that intiated proceedings against
Google in June, alleging that the search engine was failing to stop click
fraud, is to be replaced as lead plaintiff in the suit by web hosting firm
Advanced Internet Technology (AIT)"
December 9, 2005:
Google zieht sich zurück, intern.de:
"Im Juni sorgte das US-Unternehmen Click Defense für Schlagzeilen, als es
ein als Sammelklage angelegtes Verfahren gegen Google beantragte..."
The Plaintiff (Salu) had
obtained a high ranking in search results generated from searches for products
sold through its website Skinstore.com. As one example, his website achieved a
ranking in or about fourth place for a search of the product name “Hylexin”.
Then the defendants started operating a website called Newskinspa.com. The
complaint alleges that defendants knowingly have copied Salu’s web content to
take over Salu’s high position in search rankings. Since then skinstore.com no
longer maintained its high ranking when a search for the product “hylexin” is
conducted using the Google.com search engine. Instead, the website
“newskinspa.com” appeared in exactly the same place in the search rankings that
skinstore.com should appear. Upon information and belief of the plaintiff, the
Google search engine has identified the www.newskinspa.com website as a
substitute or update of the www.skinstore.com website, and substituted the
former in the latter’s place in search rankings for this product. Salu claims he
faces a significant loss of its economic advantage and significant loss of sales,
as fewer prospective customers are able to find its website through the
operation of common search engines like Google.com.
6. Google receives Notice
to Sue for Libel from dotWorlds
According to a press release
Google's refusal to take decisive measures to remove what dotWORLDS claims is
libelous content from its search engine has caused the Domain Names Registrar to
serve notice of its intention to commence an action for defamation and slander.
The press release
can be found here!
Updates on some older cases
France Press v. Google Inc.: The French news agency AFP (Agence France-Presse)
sued Google Inc. before the U.S. District Court in Washington, D.C., for
pulling together photos and story excerpts from thousands of news Web sites (see
In its brief filed Oct. 12 Google argued that news headlines that are purely
factual and merely ten words long lack sufficient orginality to preclude others
from copying them. Google also seeks dismissal of the lawsuit on the ground that
Agence France has failed to identify the allegedly infringed works with
10, Inc. v. Google, Inc.: The U.S. District Court for the Central District
of California consolidated a pair of copyright infringement lawsuits brought by
publisher Perfect 10 against Amazon.com and Google. Perfect 10 claims that the
A9 and Google search engines help users locate infringing thumbnails of Perfect
10's copyrighted photos (also see
8. Protection of the
trademark "Mèridien" in France
The company Société des Hôtels
Mèridien is the owner of the trademark "Mèridien" and was already involved in an
Adword related lawsuit against Google (see
AdWord lawsuits in France). The company also brought a lawsuit against Mr.
H, who had registrated the domain name "hotel-meridien.fr", and the company SEDO,
through which Mr. H put up the domain for sale at the price of 10.000 Euros. Not
very surprisingly, the Tribunal de Grande Instance de Paris held in its
judgement issued on September 23, 2005, that the registration of the domain name
constitutes an unjustified use of the notorious "Mèridien" trademark. But SEDO
was also held liable for the trademark infringement. The court considered that
SEDO offers an expertise to help determining the price of a domain name. The
analysis requested by Mr. H. stated: "...hotel-meridien is not a real term
but the name of a hotel chain known by all, so the domain name will be easy to
remember by anyone ... the purchase of the domain name "hotel-meridien.fr"
appears very likely and risky at the same time ... the expression "very likely"
simply means that the domain name is for sale on SEDO (even
though at an unreasonable price in my opinion) and "risky" translates into the
fact that acquiring this domain name can be viewed as an act of cyber-squatting
of the notorious hotel chain".
9. International Conference on Legal, Security and
Privacy Issues in IT
From April 30 to May 3, 2006
the first international conference
on legal, security and privacy issues in IT (LSPI) will take place in Hamburg,
Germany. With speakers from many different countries, it seems to be a very
interesting event. More information can be found at
http://www.kierkegaard.co.uk/. It is
very likely I will also attend, but I wont register before the final program of
the event is released. Everyone who also plans to attend, please inform me. I
would very much welcome the opportunity to meet some of the people who
regularily visit my website. Maybe I can organize a "Links & Law dinner".
New in Legal
Gabel, Detlev, Die Haftung für Hyperlinks im Lichte
des neuen UWG, WRP 2005, 1102-1118
Köcher, Jan, Anmerkung zu LG Stuttgart, Urteil vom
15.6.2005, 38 Ns 2 Js 21471/02, MMR 2005, 717-718