Monthly Archives: December 2012

Microsoft Denied Intellectual Property Rights For KILLER INSTINCT

Womp-wah. The USPTO denied Microsoft a trademark. The technology company tried to register “KILLER INSTINCT” for a yet to be released gaming project, but the United States Patent and Trademark office refused their intellectual property application. Apparently, Fox Television Studios scooped up KILLER INSTINCT first, for a 2005 television program donning the same name.

The Patent & Trademark Office reasoned:

“Upon encountering KILLER INSTINCT for ‘video game software’ and ‘entertainment services, namely, providing online video games’ and KILLER INSTINCT for ‘entertainment services in the nature of a television series featuring drama,’ consumers are likely to be confused and mistakenly believe that the respective goods and services emanate from a common source.”

So what does that mean in plain English? Essentially, the Patent and Trademark office rationalized that since a video game and a fantasy television show operate in the same commercial sphere (entertainment), the trademarks are confusingly similar and therefore not allowable under United States intellectual property law.

Industry Plays An Important Role When It Comes To Intellectual Property

If Joe’s Chili Shop developed a new hot-sauce and tried to register the trademark KILLER INSTINCT for their product, Joe and co. would probably succeed in securing the trademark. Why? Because the likelihood of confusion is minimal; the two products are unrelated goods/services that use substantially different marketing channels.  After all, most people aren’t going to confuse hot sauce with a short-lived television show.

United States trademark laws are essentially designed to protect consumers from market confusion that leads to unfair business practices.  Since industry factors play a role in determining confusion, it’s possible to register the same company name as an entity in a different market if the other company is not nationally recognized. Otherwise, it’d be an unfair restraint on trade.  To illustrate, an applicant in Arizona who runs a furniture story may be granted a trademark for “Cat’s Corner” even though a publican in New York named Catherine already registered “Cat’s Corner” for her bar.

To read more about other copyright and trademark legal issues, visit the intellectual property section of our legal blog, here. If you’re embroiled in a trademark or copyright legal battle, and could benefit from the counsel of an experienced intellectual property attorney, get in touch!

Daily Internet Law News Brief: Patents, COPPA & Netflix

Ready for today’s Internet law news. Let’s get to it without further ado.

New Internet Law Bill Passed In House

The so-called “Netflix Bill” passed in the House of Representatives, which means the government is one step closer to changing provisions in the Video Privacy Protection Act. The proposed changes will make it easier for people – and let’s face it, social networking sites — to share video viewing histories. Like all political moves, this one has its detractors. Most notably, those who feel the e-mail privacy amendment to the Electronics Communications Privacy Act should also be changed at the same time aren’t thrilled.

Technology Intellectual Property News: Patent Talk

Interested in software patent issues? Jason Mick published a commentary on the nature of UI patents and how they could negatively affect the tech industry. Anyone who keeps abreast of intellectual property law should take the time to check it out.

In other IP-related news, Torrentfreak.com had an interesting article about a copyright troll company who is looking to patent an anti-piracy process. Basically, it’s a system that is able to sniff our illegal downloading and prompts users the ability to pay for the material on the spot. The system has other features and could significantly change the nature of anti-piracy efforts. And as TorrentFreak put it: the process may actually be a case of copyright trolls, trolling other copyright trolls.

Internet Law Update: FTC Makes COPPA Changes Official

As expected, the Federal Trade Commission announced today that the new Children’s Online Privacy Protection Act rules – which tighten online privacy rules for app developers, website operators and third-party advertisers – are in effect. Click here to catch up on the new COPPA standards.

Public Relations Plunder: Instagram

Instagram’s privacy policy snafu continued to make news today. Pundits are coming out of the digital forest to espouse their feelings about the popular social media company’s mess up.

Internet Law News Is Goin’ Fishing For Two Weeks

Well friends, the holiday season is officially upon us. News is slowing ever so slightly as many retreat to spend time with their families and friends. As such, we’ll be haulting publication of our daily news briefs until January 3, 2013! See ya then!

Daily Internet Law News Brief: FTC, Facebook, IBM & Instagram

Facebook to Germany: “Leggo Our Legal Rights!”

Lawmakers in a German state aren’t pleased with Facebook’s “no fake name” stance, so they’re demanding that the social networking company change their policies. The Facebook terms of service stipulates that users must use their government name; in the state of Schleswig-Holstein, however, the law books say that citizens are allowed to use pseudonyms “when it’s technically possible and reasonable.” Basically, it’s the same as Arizona petitioning a European company, with a state-side office in New York, to adopt all AZ state laws.

Currently, since Facebook’s European Head Quarters are in Ireland, they must adhere to Irish and European Union laws; company attorneys plan to argue that they’re not beholden to German law, especially state law.

Did IBM Make A Major Online Privacy Breakthrough? Stock Prices Indicate “Maybe”

Big Blue made a big announcement and their stock price rose. According to reports, IBM, in collaboration with the European Union and other digital security entities, have developed a product which only allows pertinent information to be released when required. For example: a bartender doesn’t need to know the addresses of their patrons, only that their 21. The technology is called an “identity mixer”, and if the clamor for increased online privacy continues, it could prove to be a huge moneymaker that will open a new market sector.

Another Day, Another Internet Law FTC Issue

The Federal Trade Commission made headlines today for three reasons: (1) Folks aren’t happy with the commission’s rumored antitrust settlement with mega-search company, Google; (2) They announced an intense investigation into several data brokers; and (3) Nickelodeon game, SpongeBob Diner Dash, was pulled from the iTunes App Store for violating COPPA rules.

Byte-Sized Internet Law News

U.K. Tory politician settled his defamation lawsuit against the BBC and ITV. The BBC owes the disgraced ex-treasurer 185,000 and ITV has to fork over 125,000.

AZ Central highlighted an obscure tax involving lease costs of which every limited liability company in the state should be aware.

The Audiovisual Anti-Piracy Alliance officially opened their doors in France. The new association plans to focus on issues affecting pay-TV providers.

Instagram had to deal with a major intellectual property snafu, when reports surfaced that the company was going to sell users’ photos. This has not been a good week for Kevin Systrom.

HR 2471: Proposed E-Mail Privacy Bill

email privacyIn a few months, it may be a little more difficult for law enforcement agents to get a hold of your e-mail and social media messages. Last week, the Senate Judiciary Committee approved a bill (HR 2471), sponsored by Sen. Patrick Leahy, which seeks to update the 1986 Electronics Communications Privacy Act. The bill will require officials to obtain a warrant if they want to read private e-mails or electronic messages.

What, exactly, is the Senate Judiciary Committee, you ask?One of the oldest government committees still in existence, the SJC was created in 1816. In addition to conducting Supreme Court nominee hearings, the judicial board also deals with federal criminal law, human rights, immigration, intellectual property, antitrust and online privacy.

How It Works Now

Issues surrounding e-privacy are largely governed by the Electronics Communications Privacy Act, which was passed in 1986. The statutes codified within the ECPA speak to a time when the World Wide Web was in its infancy and e-mail was considered a transitory form of communication. As such, the statute stipulated that law enforcement officials only needed to obtain a warrant to read emails that are less than six-months-old.

Currently, law enforcement agents are able to obtain old e-mails with less information than they would need to get a “probable cause” warrant. Additionally, four states already have laws rendering warrantless access to email unconstitutional; plus, other statutes exist which compel third parties to hand over information to officials when lives are at stake or children are at risk.

Lastly, government investigators and police officers can get “to” and “from” data from e-mails – via judicial order – in order to build a probable cause case to obtain a warrant. And believe it or not, officials can get e-mails turned over, with less than a warrant, if the message falls into the vaguely defined “electronic storage.”

The Murky Legal History Of “Electronic Storage”Since the Internet’s inception, lawmakers have been trying to lasso technology into legalese – but they haven’t had much luck wrangling a consensus on what constitutes “electronic storage.”The 9th Circuit Court of Appeals defined electronic storage as simply “anything kept in an inbox.” The Supreme Court of South Carolina, however, ruled that “read emails are not in electronic storage and can be read without a warrant.” The Department of Justice thinks that deleted, read and draft messages aren’t in storage. To top it off, in 2010, the 6th Circuit Court of Appeals ruled that warrantless e-mail reading violates the Fourth Amendment.

Who Is In Support Of The New E-mail Privacy Bill? Who Is Against It?

Support for the bill is divided, but oddly enough, not across party lines. While the sponsor of the bill is a Democrat, several co-sponsors are Republicans. Moreover, the American Civil Liberties Union, Grover Norquist’s Americans for Tax Reform, Google, Microsoft and Twitter all support the bill. However, the senate minority leader, Sen. Charles Grassley, has expressed concern that there hasn’t been sufficient debate on the topic; additionally, associate deputy attorney general, James Baker, urged officials last year not to pass the bill, suggesting it would hamper law enforcement efforts.

What’s The Next Step?

So, what’s next for HR 2471. In all likelihood, we won’t see any movement until next year. The e-mail privacy law must first be cleared by the Senate, at which point it will move on to the house.

Many legislators are also eager to add language that exempts law enforcement officers from having to obtain a warrant in instances of rape and kidnapping.

Experts estimate that cloud-computing will be a $240 billion a year industry by 2020. In other words, U.S. firms must gain the confidence of users, or they could lose out on all that juicy profit. Since the European Union has already passed strict online privacy laws, expect U.S. officials to follow suit, if not only to secure the nation’s competitive cloud-computing edge over the coming years.

Additional Source: http://www.mnn.com/green-tech/computers/stories/who-can-read-your-emails-now-online-privacy-act-explained

Can I Sue Someone Over A Bad Review on Yelp!?

yelp! defamation
Can you sue someone for defamation if they leave a bad review of your company on Yelp!?

Homeowner v. Contractor is a tale as old as time. Books have been written and movies made about the battles between people who build homes and the people who live in them. So, as you might imagine, home development lawsuits are a dime a dozen. One such case is currently being heard in Virginia. Contractor Christopher Dietz is suing one of his clients, Jane Perez of Fairfax, for defamation over a Yelp! review of his company.

According to reports, Perez and Dietz were high school classmates. When Perez bought a townhouse, she contracted Dietz to work on her home.

It didn’t go well.

Perez accused Dietz of ruining her house and generally not delivering on contract promises. Following the present-day playbook for airing discontent, Perez went to Yelp! After detailing her experience and opinions, Perez ended her missive thusly: “bottom line do not put yourself through this nightmare of a contractor.” She also intimated that Dietz “was the only one with a key” to her home during a time when some jewelry went missing; Perez also suggested Dietz trespassed. Dietz, however, was never brought up on theft or trespassing charges.

Long story short, Dietz filed a $750,000 defamation lawsuit against Perez, arguing he lost $300,000 worth of business as a result of her Yelp! reviews. He also asked for a preliminary injunction that will keep Perez from writing any more reviews about his business until the matter is resolved.

On Wednesday of last week, a judge agreed with Dietz and ordered Perez to take down any comments alleging theft or discussing the legal action at hand.

Why Isn’t Yelp! Responsible For Defamatory Reviews On Their Website?

You may be wondering: why isn’t Yelp! Liable for the reviews on their website? Answer: safe harbor protections outlined in Section 230 of the Communications Decency Act. Basically, Section 230 protects website operators from being held responsible for material posted on their site by third parties.

That said, if a website operator promotes defamatory material on their site, or raises its profile in some manner, they may be held liable for libel, because doing such is essentially creating new, possibly defamatory, material.

Review Backlash: How Leaving A Bad Review Can Hurt You Too

The urge to alert fellow consumers about a bad service or company is strong for many people, but it could end up backfiring – which is exactly what happened to Jane Perez. In her quest to air what she felt were Dietz’s wrong-doings, Perez ended up doing a little damage to her own online reputation. How? Well, since Dietz responded to her original diatribe on Yelp!, his reaction to her post was the first thing that showed up when you googled her name. As a result, she removed the original message.

If you want to sue someone for defaming you on an Internet review site, get in touch with Kelly / Warner today. Our legal practice focuses on Internet defamation and we’ve handled many slander and libel cases. Get in touch today to get your business back on track.

Defamation Law: Can You Be Kicked Out Of Your Apartment For Slandering The Landlord?

Victor Fiorillo’s article on Phillymag.com makes Philadelphia’s Landlord Tenant Court sound like the dreaded “Fourth Floor” in Pawnee’s City Hall – dank, drab and filled with agitated litigants lulled into a drone-like state thanks to the monotony of bureaucracy. But as Fiorillo explained, an unusual case recently perked the place up. Matthew and Michael Pestronk – two developer brothers who were publicly known, thanks to a “union-busting” campaign they launched earlier in the year – were suing one of their tenants, Marissa Damato, for defamation. While the court regularly heard cases involving rent, sub-par living conditions and lease disagreements, slander and libel was rarely on the docket.

In The Beginning: The Road To A Landlord Tenant Defamation Lawsuit

Despite acknowledging, presumably via signing the lease, that their new building – built by the Pestronks’ company, Post Brothers – was still under construction, Marissa Damato, her husband and kids moved into the Rittenhouse Hill apartment in West Mouth Airy, Pennsylvania. From the sounds of it, Damato and her family were not thrilled with their location. According to them, the elevators in their building constantly malfunctioned and piles of dirt made navigating the grounds difficult and dangerous (not to mention the open wires). Rodents running rampant also infuriated the new family, and presumably presented certain health risks.

Marissa, a concerned mom, decided to take her complaints to the Fifth Estate. She called Fiorillo in an attempt to expose the less than pristine conditions at Rittenhouse; Damato referred to her landlords, the Pestronk brothers, as “slumlords.” From the sounds of it, Fiorillo didn’t jump right on the story; but then the Pestronk brothers started to grouse about Damato loitering in the hallways and accosting prospective renters with tales of the buildings woes; they also believed she took her gripes online in the form of uncomplimentary, anonymous Internet epistles.

A lawsuit landed on Damato’s doorstep and Fiorillo decided to explore the case a little closer.

The Defamation Lawsuit: “Get Out Of Our Digs For Talking Trash!”

Presumably the Post Brothers were done with Damato’s demands and disses. Perhaps emboldened by their summer success fighting what they characterized as “bully unions,” Matt and Mike filed a lawsuit against Marissa and her family. In a creative legal maneuver, the brother developers decided to file a defamation lawsuit. Their ultimate goal was to evict Damato for “interfering with the landlord’s business.”

In their lawsuit, the Post Brothers supposedly detailed their displeasure with Damato’s behavior and her constant complaints about their building. They alleged that even though the online diatribes were penned anonymously, they were “just obviously her.”

So there the two parties found themselves, in the dank Landlord Tenant court – about to begin a defamation battle.

Speculation: Who Will Win This Landlord Tenant Defamation Case?

Without reading the actual filing, it’s impossible to say who will win this interesting defamation lawsuit; and unfortunately, I’ve not been able to get my hands on it. Nevertheless, based on the information gathered in Fiorillo’s article, two questions emerge that will most likely be central to the case.

Did The Damato’s Agree To The Conditions?

If Marissa and her family did sign a legal contract which outlined the types of disturbances they would encounter by living in the building while still under construction, the Post Brothers will probably have a pretty good shot at winning this case.

Was It Really Marissa Who Was Bad-Mouthing The Brothers Online?

It sounds like the Post Brothers are equally upset with Damato’s possible online grousing as they are with her alleged disparaging hallway warnings to prospective leasers. She, however, says it isn’t her doing the Internet griping. As such, the brothers will most likely have to get a subpoena to unearth the name of the anonymous malcontent. If they succeed in obtaining the subpoena, and the person isn’t her, there goes half their case. If it is her, she may be out of luck – but only if her online tirades contained provably false statements of fact. If the statements in question are merely Marissa’s opinions about the building and factual accounting, she most likely won’t be held liable for exercising her right to free speech.

Kelly / Warner will be keeping an eye on this defamation lawsuit – after all, it’s not every day that a slander or libel case lands in landlord tenant court. To keep up with other Internet and defamation law news, sign up for our newsletter. If you need to speak with a defamation attorney about a matter, get in touch!

SPEECH ACT: Can U.S. Citizens Be Sued If They Tweeted About The Lord McAlpine Scandal?

Twitter lawsuits against lord mcalpine tweeters
Can U.S. citizens be sued for tweeting about the Lord McAlpine scandal?

An accusation of a former orphan has resulted in the resignation of George Entwistle, former general director of the BBC, and high-dollar defamation legal settlements for the maligned. According to reports, more suits related to incident are still on the way.

The McAlpine Scandal Explained – Cliff’s Note Style

The melee began when a man claimed that he was molested years ago at an orphanage; he insinuated a current member of the British Parliament was his abuser. While the name of the official was not released in the original reports, clues pointed to Lord Alistair McAlpine. The public – and many members of the media – ran with the story.

The salacious bit of gossip, however, turned out to be false. The accuser reportedly realized his attacker was not McAlpine.

Since the revelation, McAlpine has sued and settled with both the BBC and ITV. Now, he’s going after people who tweeted about the incident; published estimates put the possible number of offending tweeters at 10,000. Even if a user re-tweeted a message, or didn’t use McAlpine’s name outright, under UK libel law, the act is considered defamatory.

In 21st century fashion, McAlpine’s legal team added a section to their website on which they invite Twitter-users, with fewer than 500 followers, to submit an apology, via an online form, to avoid prosecution. High-profile tweeters, however, can expect to be served any day now.

Can U.S. Citizens Be Sued For Libel In Another Country? It’s Tough Thanks To The SPEECH Act!

This scandal raises the question: can United States’ citizens be held liable for libel if they tweeted about the McAlpine incident? In a word, yes, U.S. citizens can be sued; but due to the SPEECH Act, if found liable, there’s a good chance the case won’t be recognized by U.S. courts — that is if the U.S. tweeter did not directly make a false statement of fact in their 140-word missive.

Signed into law in 2010, the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act aims to reduce the number of libel tourism lawsuits and safeguard free speech liberties for United States’ citizens. Essentially, the statute allows for declaratory relief for Americans who lose foreign libel cases; specifically, it’s a declaratory judgment is a legally binding declaration that is used to preempt a person from enforcing a judgment in the U.S. A SPEECH Act Declaratory judgment, however, would only be possible if the original claimant interfered with the U.S. citizen’s free speech rights.

Kelly / Warner Law focuses on Internet libel legal matters. Contact us today if you need an online defamation lawyer to assist with a matter.