Alienware Corporation v. Online Gift Rewards, No. 08-1560, S.D.N.Y. (Filed February 14, 2008).

High-performance computer manufacturer Alienware has filed suit against an online marketer alleging trademark infringement, dilution, and other theories of unfair competition. Alienware claims that the defendant has “disseminated mass unsolicited electronic solicitations” and posted Web pages offering “free” Alienware laptops, when in reality, one has to perform some “onerous” tasks to get them.

According to Alienware, after accepting the offer, users must purchase a specified amount of goods from various other sites. And this obligation is not clearly communicated, but is “presented to the consumer, if at all, only after he or she expends significant time and effort in responding to inquiries and navigating the multiple prompts.”

One may be tempted to speculate that the defendant in this case could raise some kind of defense based on fair use of the trademark. (How could you let people know what you’re offering unless you tell them; and giving away actual Alienware computers also seems like it could be protected under the first sale doctrine.)

And Alienware may have anticipated this defense, by alleging that it’s only “Alienware” serving as the source identifier for the offer, and “[t]here is no other recognizable or identifiable indication of source.” The defendant is an entity called “Online Gift Rewards.” Alienware claims that the designation is “likely to be perceived as a generic description of the offering rather than a source indicator.”

[Download the complaint]

People v. Fernino, — N.Y.S.2d —-, 2008 WL 382348 (N.Y.City Crim.Ct. February 13, 2008)

An order of protection, issued by a New York family court, required that defendant Fernino have no contact with a certain Delgrosso. After Fernino added Delgrosso as a “friend” on MySpace, she was charged with contempt of court for allegedly violating the order of protection.

Fernino moved to dismiss the criminal complaint against her, arguing that even if the allegations were true, the purported “contact” through “friending” Degrosso would not support a conviction on the charges. The court denied the motion to dismiss.

Finding that adding Delgrosso as a friend in the social networking context was prohibited “contact,” the court cited to People v. Kochanowski, 186 Misc.2d 441, 442 (App Term, 2nd Dept 2000) and People v. Johnson, 208 A.D.2d 1051 (3rd Dept 1994). In Kochanowski, the appellate court affirmed the harassment conviction of a defendant who participated in building a bogus Web site containing, among other things, alluring pictures of his ex-girlfriend. In Johnson, the court held that the defendant committed aggravated harassment by responding to a personal ad in the victim’s name, causing the person placing the ad to contact the victim.

In this case, the court observed that even though Delgrosso could have simply denied the friend request, it was still a form of contact. It found that the form of communication was no different from the defendant having a third party say to Delgrosso, “Your former friend wants to communicate with you. Are you interested?”

It should also be noted that the court cited approvingly to Wikipedia for a description of MySpace and to Alexa for information about MySpace’s popularity.

Mark Fass of the New York Law Journal has more on this case here. The MyCrimeSpace blog has its take on the case here.  Also found on MyCrimeSpace is this article from last year about a poor chap in the UK who was found to have violated a restraining order for friending his ex-wife on Facebook.

A reminder to my Chicago-area readers — please consider attending tomorrow’s (2/19) meeting of the Chicago Bar Association’s Cyberlaw and Data Privacy Committee meeting. 12:15 p.m. at 321 South Plymouth Court in Chicago [map]. Dave Donoghue will be speaking about recent cyberlaw developments in the Northern District of Illinois. Satisfaction guaranteed or your money back. The event is free.

[Update: Thanks, Dad, for alerting me to the typo. It's a relief to know I'll always have at least one reader!] 

The Software Freedom Law Center, one of the leading influencers in the free and open source software movement, has released what appears to be a helpful guide on understanding the legal issues associated with the use and development of open source software. As anyone involved with open source (whether on the legal side or the technical side) knows, these kinds of issues are erudite at best, and incomprehensible at worst. Having a comprehensive review in one place provides a helpful tool. Thanks to my friend Alex Newson for pointing out this publication.

T.D.I. Intern., Inc. v. Golf Preservations, Inc., (Slip Op.) 2008 WL 294531 (E.D.Ky. January 31, 2008)

Plaintiffs T.D.I. International and XGD Systems sued their former employee Samson Bailey and his company Golf Preservations for, among other things, violation of the Lanham Act, 15 U.S.C. §1051 et seq. Plaintiffs alleged that defendants’ purchase of plaintiffs’ trademarks to trigger competitive advertising on Google and Yahoo was trademark infringement and unfair competition.

Defendants moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint, but the court denied the motion. It found that under the Twombly standard, plaintiffs had alleged facts sufficient to state a claim to relief that was plausible on its face.

Predictably, defendants had argued that the purchase of plaintiffs’ marks as keywords did not constitute a “use” of the marks as provided in the Lanham Act at 15 U.S.C. § 1127. They relied heavily on Interactive Products Corp. v. a2z Mobile Office Solutions, Inc., 326 F.3d 687, 695 (6th Cir.2003) (a case involving the appearance of a mark in the post-domain path of a URL), and 1-800 Contacts, Inc. v. When U.com, Inc., 414 F.3d 400 (2d Cir.2005) (involving pop-up advertisements triggered by page content and user activities).

Plaintiffs relied on a number of cases to argue that the purchase of keywords was a use as defined in the Lanham Act, and also (correctly) asserted that the scenario of buying keywords to trigger advertising is notably different from use in a post-domain URL (as in Interactive Products) and unseen triggering of pop-up advertisements (as in 1-800 Contacts). Given the split of authority and the corresponding “uncertain state of the law on the specific issue presented in [the] case,” the Court sided with plaintiffs and found that defendants’ arguments were not sufficient to warrant dismissal.

Doe v. Network Solutions, LLC, No. 07-5115, 2008 WL 191419 (N.D. Cal. January 22, 2008)

Plaintiff Doe alleged violations of the Electronic Communications Privacy Act and similar California statutes when he discovered that personal and financial information about him had allegedly been obtained from a webmail account he established with Network Solutions. Citing to the forum selection clause in the click-wrap agreement Doe had entered into several times, Network Solutions moved to dismiss the action under Fed. R. Civ. P. 12(b)(3) for improper venue.

The court granted the motion to dismiss, finding that the claims brought by plaintiff were within the scope of the clause, and that enforcement would not be unreasonable. The matter was dismissed without prejudice to refile in the Eastern District of Virginia.

The forum selection clause provided, in relevant part, that it governed “any disputes between [customer] and Network Solutions under, arising out of, or related in any way to this Agreement. . . .” In holding that the claims fell within the scope of the clause, the court observed that although there were no claims for breach of contract, the claims arose out of plaintiff’s status as a customer and related to the services, thus implicating the contractual relationship. Moreover, the language “under, arising out of, or related in any way to [the] agreement” led the court to conclude that the clause was to be construed broadly.

In determining that enforcement of the clause would not be unreasonable, the court rejected plaintiff’s argument that it would contravene public policy, as the choice of law provision (naming Virginia) would preclude recovery under various California statutes. The court noted that California law had not expressed any policy against enforcement of a forum selection clause in the context of the claims asserted, and that a clause providing a forum which permits different or less favorable remedies is not, alone, a basis for invalidating the clause.

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