Spamming Case

Plaintiff Hotmail, a provider of free e‑mail addresses and owner of the mark HOTMAIL and the domain name “hotmail.com,” sued defendants for false designation of origin, trademark infringement, and trademark dilution arising from defendants’ use of plaintiff’s “hotmail.com” domain name in falsified return e‑mail addresses. Specifically, the defendants sent spam e‑mail messages advertising pornographic material, each containing return addresses bearing Hotmail account return addresses, when in fact the messages did not originate from Hotmail or a Hotmail account.  Hotmail’s service-provider agreement specifically prohibited the sending of spam mail.  Finding Hotmail likely to succeed on the merits of its claims, the court granted its motion for preliminary injunction and prohibited defendants from engaging in spamming activities and from using plaintiff’s HOTMAIL mark and “hotmail.com” domain name in any manner.

Online Defamation- Faster than You can Imagine!

If you hate somebody, what would you do? Or you are a person who likes to say negative things about people who you don't like, what is the most you can do? Offline, you can have a long conversation, or in a worser condition, there might be some audience watching it. But how far and how fast will the rumors go? Well, that is offline situation. Think about online. What will you do, if you are an internet freak, or a frequent blogger, or a website host, what will you do to the people you don't like? You can just type a wrongful message and send it to all of the people in your friends list. And imagine if your friends forward it to others.. You shall do the mathematics yourself on how many people might have viewed your message about the person you are defaming with. I have read few cases on this issue.

One was Cullen Vs White. Dr Trevor Cullen, an Australian academic sued Bill White, a resident of the US for defamatory statements in over 60 “hate sites” hosted outside Australia. The statements included implying Cullen was a paedophile and a fraud. The court found for the Plaintiff and ordered the Defendant to pay damages. Note that the Plaintiff was based in Australia and the Defendant was based in the United States. The websites were outside of US. Yet because millions of people can have access to the websites, the Court stated that the act of defamation has become wide-spread.

Online defamation is not a child-play thing. We should be careful on what we are saying/typing/posting/commenting on anything on the Internet.

Never Give Up!

I have came across a case of Bihari Vs Gross. This case seems to be interesting because Gross doesn't seem to get enough or give up. the story goes like this. 

Plaintiff, a New York interior designer, was engaged in a business dispute with defendant, a former client of plaintiff.  While a state lawsuit regarding that dispute was pending, defendant registered the domain names “bihari.com” and “bihariinteriors.com,” and posted websites critical of plaintiff.  Plaintiff then filed suit in federal court asserting various trademark claims, including violation of the ACPA. When served with the federal court complaint, defendant deleted the offending domain-name registrations.  Plaintiff later discovered that defendant registered the domain names “designscam.com” and “manhattaninteriordesign.com,” and posted the same critical websites at those names.  Defendant’s sites also contained “Bihari Interiors” as metatags.  Plaintiff then sought a preliminary injunction.  Because defendant already deleted its “bihari”-formative domain names, plaintiff’s request for a preliminary injunction on its ACPA claim was rendered moot.  In addition, the court held that the use of “BIHARI” in the metatags of defendant’s websites was not prohibited by the ACPA.  On plaintiff’s claim for trademark infringement, even though the content of defendant’s website was not commercial in nature, links on those sites to competitors of plaintiff transformed “otherwise protected speech into a commercial use to satisfy Section 43(a)’s commercial use requirement.”  But the court held that confusion was unlikely.  Because defendant’s websites disparaged the plaintiff, no reasonable Internet user would believe plaintiff endorsed them.  The doctrine of initial-interest confusion did not apply because defendant’s websites did not compete with plaintiff’s services and defendant did not use plaintiff’s mark “to trick Internet users into visiting defendant’s website.”  The court also held that defendant’s use of plaintiff’s marks as metatags was a descriptive fair use, as they were used to identify the content of defendant’s sites–plaintiff and her business. Accordingly, the court denied plaintiff’s motion.

Tarnishment Issue

I have read on a case which involved Kraft Foods Holdings, Inc. v. Stuart Helm a/k/a “King Velveeda”

Plaintiff, the manufacturer of VELVEETA brand cheese products and owner of the federally registered mark VELVEETA, sued defendant for trademark infringement and dilution.  Defendant, who refers to himself as “King Velveeda,” used Velveeda as a metatag on his website at “cheesygraphics.com” and used the site name “King Velveeda” on “www.courtofporn.com,” a site defendant built and for which he supplied content. Both sites featured adult content, and defendant’s site also depicted drug use and paraphernalia. The court granted plaintiff’s motion for preliminary injunction and enjoined defendant from using the “Velveeda” moniker in any “commercial” manner or activity. The court also ordered defendant to remove Velveeda from all metatags, metanames, or keywords on his websites or any sites on which he is authorized to post or rate web pages. The court found that defendant’s use of “Velveeda” in conjunction with graphic sexuality and nudity likely tarnishes plaintiff’s mark. The court dismissed defendant’s commercial free speech and parody defenses on the grounds that the noncommercial elements of his site were not inextricably bound to the commercial parts, and that he admitted that his site was not a parody. The court also dismissed defendant’s laches defense. Even though defendant asserted he had been using the name “King Velveeda” for 17 years, he could not prove that plaintiff had knowledge of his use of the mark.

Nissan Vs Nissan..???

While I was doing a research for my class exercise on the cybersquatting issues, I have come across an article which interests me. It was the case on Nissan Vs Nissan. At first I thought there was a civil war going on in the Nissan company. But it turned out to be something else.

The story goes like this. There is a guy named Uzi Nissan and he was born in Jarusalem. He mentioned that Nissan is his family’s name. His father’s last name was Nissan and so was his grandfathers and great great….. grandfathers. In his statement, he also mentioned that what does Nissan means in biblical terms. Back to the story, he came to U.S in 1976 and he has used his surname for years to identify a number of business enterprises. The first one was “Nissan Foreign Car” in 1980. He serviced varieties makes and models of foreign cars, inclusing cars manufactured by Nissan Motor. As everyone might probably know this, Nissan Motor was known back then as Datsun. Therefore, in 1980, Uzi did not choose to use his last name “Nissan” because it was contrary with Nissan Motor.

In 1987, he started an import and export business, known as “Nissan International”. Still at that time, Nissan Motor was known as Datsun. In 1991, “Nissan Computer Corp” was incorporated. He has used Nissan as part as his trade name in connection with the sale of computer hardware, computer maintenance, networking, computer training and other consulting services related to computers. Due to that, in 1994, he then registered the domain name “nissan.com” and has created a website to promote computer related products and services on the Internet. Later after that, in 1995, he received a service mark registration for Nissan and his logo from the State of North Carolina.

He then continued his journey in 1996 by registering “nissan.net” and began offering Internet services, including dial-up connections and direct data connections to business. In December 1999, after five years of registering “nissan.com”, legal action was instituted by Nissan Motor seeking $10 million dollars in damages and Nissan Motor tries to restrain him for using his family name for business purposes on the net.

At the end of the day, the district court has issued a final judgement, allowing Nissan Computer to retain its Nissan.com and Nissan.net domain names. However, they are restricted to:

While I was doing a research for my class exercise on the cybersquatting issues, I have come across an article which interests me. It was the case on Nissan Vs Nissan. At first I thought there was a civil war going on in the Nissan company. But it turned out to be something else.

The story goes like this. There is a guy named Uzi Nissan and he was born in Jarusalem. He mentioned that Nissan is his family’s name. His father’s last name was Nissan and so was his grandfathers and great great….. grandfathers. In his statement, he also mentioned that what does Nissan means in biblical terms. Back to the story, he came to U.S in 1976 and he has used his surname for years to identify a number of business enterprises. The first one was “Nissan Foreign Car” in 1980. He serviced varieties makes and models of foreign cars, inclusing cars manufactured by Nissan Motor. As everyone might probably know this, Nissan Motor was known back then as Datsun. Therefore, in 1980, Uzi did not choose to use his last name “Nissan” because it was contrary with Nissan Motor.

In 1987, he started an import and export business, known as “Nissan International”. Still at that time, Nissan Motor was known as Datsun. In 1991, “Nissan Computer Corp” was incorporated. He has used Nissan as part as his trade name in connection with the sale of computer hardware, computer maintenance, networking, computer training and other consulting services related to computers. Due to that, in 1994, he then registered the domain name “nissan.com” and has created a website to promote computer related products and services on the Internet. Later after that, in 1995, he received a service mark registration for Nissan and his logo from the State of North Carolina.

He then continued his journey in 1996 by registering “nissan.net” and began offering Internet services, including dial-up connections and direct data connections to business. In December 1999, after five years of registering “nissan.com”, legal action was instituted by Nissan Motor seeking $10 million dollars in damages and Nissan Motor tries to restrain him for using his family name for business purposes on the net.

At the end of the day, the district court has issued a final judgement, allowing Nissan Computer to retain its Nissan.com and Nissan.net domain names. However, they are restricted to:

1. Posting Commercial content at nissan.com and nissan.net;
2. Posting advertising or permitting advertising to be posted by third parties at
    nissan.com and nissan.net;
3. Posting disparaging remarks or negative commentary regarding Nissan Motor
    Co., Ltd. or Nissan North America, Inc. at nissan.com and nissan.net;
4. Placing, on nissan.com or nissan.net, links to other websites containing
    commercial content, including advertising; and
5. Placing, on nissan.com or nissan.net, links to other websites containing
    disparaging remarks or negative commentary regarding Nissan Motor Co., Ltd.
    or Nissan North America.

Another Issue on Cybersquatting!

During my Cyberlaw class, my lecturer was telling us the story of Julia Fiona Roberts (a.k.a Julia Roberts, the actress) Vs Russell Boyd. In this domain name conflict case, Boyd has simply registered the domain name “juliaroberts.com” and placed the domain name up for auction on E-Bay. Boyd was then found guilty because he has created a domain name which is confusing for the users, he has no legitimate interest in using the domain name and he has used the domain name in bad faith.

Recalling to that story, I have found a quite similar story on the same case. This time, it was the Washington Speakers Bureau Inc Vs Leading Authorities Inc. It was known that Leading Authorities was a direct competitor of Washington Speakers Bureau (WSB) and they have registered variety of domain names incorporating parts the WSB trademark. The court then has found out that the registration and use of these domain names has constituted trademark infringement and the court has ordered Leading Authorities to release ownership of the registered domain names.

However, Leading Authorities has got something on their mind. They have requested a stay of the order pending appeal. This is because, the domain names could be registered to a third party stranger if released. On the other hand, if the stay was not granted, the registered domain names will be returned to the registrar and will be available for any interested takers on the first-come-first-serve basis.

Initially, the court granted the stay, but then they have reconsidered and denied the stay. In the end, Leading Authorities was ordered to let go the ownership of the domain names plus they have to notify WSB the correct and precise date on which it released the domain names to provide WSB the good chance of registering these names if they want.

Hasbro Vs Clue Computing

Hasbro. A big and famous name in the toy industry for years. I have heard and read about some law cases on Hasbro. I recalled the case on Hasbro’s product Candyland and another website which has got the same domain (but the website contains adult element in it). The case favours on Hasbro as the other website might tarnish Hasbro’s good name or create confusion among the Internet users.

I have come across another story on Hasbro. This time, Hasbro has brought suit against Clue Computing for trademark infringement and dilution of Clue trademark (p/s: Clue is Hasbro’s famous mystery-solving board game). On the other hand, the defendant, Clue Computing has registered “clue.com” in June 1994 and their website is use to advertise its business including Internet consulting, training, system administration, and network design. Hasbro has also attempted to argue that the two companies are providing competing services.

However, the court has rejected Hasbro’s argument though.  Later, following the traditional trademark infringement analysis, the court was determined that Hasbro has failed to demonstrate that there was any likelihood of confusion.

What has NAPSTER Done..?

NAPSTER, as we all know, is a very famous online music store. They are known for being the pioneer of peer-to-peer file sharing internet service that specialized sharing audio files with MP3 format. They were one of the company which ran into legal difficulties over copyright infringement, besides website such as Gnutella, Freenet and many others. Therefore, the federal judge has ordered Napster to stop the trading of copyrighted materials. Napster was said to have created a monster. However, the judge's order does not directly affect the estimated 20 million people who have used Napster's website to download a lot of MP3 encoded songs since last year because it is unlikely for the recording industry to to file separate lawsuits against individuals. I'm attaching a useful link for your further reading on what has been discussed during the case.
http://news.cnet.com/2100-1023-243698.html

In my opinion, in this case of file sharing, especially audio file sharing and downloading, we can't just blame these websites for providing this kind of services. Although these website hosts are guilty, awareness of copyright infringement issue should come from everybody. They should know how does it feels when their piece of work is being widely spread in illegal way. Internet is like a very big playground that allows everybody to come and 'play' with it. These Internet users are like kids who enters the playground. Its very hard to control them when they are at the playground. Only when they are given a sufficient knowledge and a good ethical teaching, maybe these 'kids' can behave better and they will know what are the limits in everything they do in their daily live.

Exclusion Clause

This weblog is created for the purposes of assignment for the subject BYL 2024, Cyberlaw by Faculty of Management, Multimedia University, Malaysia. The materials posted on this weblog are for the purposes of the assignment as well as study and non-profit research only. Appropriate acknowledgements to the materials that do not belong to the weblog owner have been publicly made. If you are the author or a copyright or a trademark owner of any of the articles or images or graphics or pictures or any material posted in this weblog herein and you object to such posting on any grounds, including copyright or trademark infringement, please contact me and I will take your material down. I state herein that I am relying on the doctrine of fair use. “

Counterfeiting!!!

This was the case of Ford Motor Co. Vs Cross:

Defendants sold restoration parts for Ford automobiles using Ford's trademark FoMoCo in the domain name “fomoco.com” and the business name “FoMoCo Obsolete.” Plaintiff sued for cybersquatting, trademark dilution, trademark infringement, false designation of origin, and false advertising.  Neither defendant made an appearance or answered the complaint.  The court adopted the magistrate’s report and recommendation and granted plaintiff’s motion for default judgment on all claims.  Regarding cybersquatting, the court held that plaintiff’s factual allegations sufficiently showed that defendant had no legitimate rights in the domain name and that defendant had a bad-faith intent to profit from plaintiff’s mark.  The court also held that plaintiff alleged all the requisite factual elements for dilution, infringement, and false designation of origin and false advertising.  The court permanently enjoined defendants from, among other things, making unauthorized use of the FORD and FOMOCO marks and any confusingly similar marks or domain names.  The court also ordered defendants to transfer the “fomoco.com” name to plaintiff, and to disclose to the court plaintiff all other domain names it owned to permit the court and plaintiff to determine whether any such names should be transferred to plaintiff.  The court awarded $100,000 in statutory damages for trademark counterfeiting, even though the court’s opinion did not expressly make any specific finding of counterfeiting.  Although plaintiff alleged that defendant’s counterfeiting was willful, it requested only $100,000 (the maximum award for non-willful counterfeiting) instead of $1,000,000 (the maximum award for willful counterfeiting).  The court also awarded $10,000 in statutory damages for cybersquatting; plaintiff requested only $10,000 and not the $100,000 maximum despite plaintiff’s claims of willfulness.  Finally, the court awarded $28,288.89 in attorney’s fees.

Who is Gary McKinnon?

At first, I didn't recognized who is he when we were asked to find out about him. After making some thorough researches around, I got to know that I'm actually kind of out-dated about what's happening out there. This guy, Gary McKinnon is actually a famous computer hacker and believe it or not, he has hacked into the network owned by NASA, US Navy, Department of Defense, US Army and US Air Force. The US prosecutor claims that it was "the biggest military computer hack of all time". On the other hand, McKinnon states that he was merely looking for evidence of free energy suppression and a cover-up of UFO activity and other technologies potentially useful to the public. 

Hacking Issues...

As we know, generally, hacking is unauthorized use of computer and network resources. By hacking, a person can change data, fix programs, modify computer programs, and grant access without the owner’s permission etc.

For my class project, I have found an article about a Malaysian guy who was involved in hacking issues. This man has illegally hacked into the computer networks of the US Federal Reserve Bank as well as the computer networks of the US Department of Defence contractor. He was stealing the credit cards numbers from the US Federal Reserve Bank and sells it to the customers and makes fast money out of it.

It was a shameful thing to us the Malaysian to hear about this news. This news might have brought a bad name to Malaysia as well. Since hacking is one of the issues that need a long time to recover, we hope that Malaysian government should enhance the awareness of cyber crime among us and how we can avoid such things to be happening in our daily life.

On the other hand, in my opinion, the big bodies of the US such as the US Federal Reserve Bank should have tighter security of their networks so that these kinds of malicious issues could be avoided.

Not only the big bodies, in fact all of the companies which have the possibility for their network and systems to be hacked, should enhance their security level of the systems. Maintenance cost should be an issue for the companies as it can actually save more money if there will be no proper security of the systems.

I Never Knew...

Everywhere, we have been listening about cases or problem which ends up in courts. Those are either involved in the criminal law or civil law cases. Now that I'm learning about Cyberlaw about all its' issues, I saw that crime doesn't stop here. Crime can go even further than what we can imagine. And the most interesting part is, we might have committed a cyber crime without knowing it! People might think that leaving a simple comment or publishing a simple post wouldn't be harmful. But we must be careful. There's this thing called 'Cyberlaw' which covers every aspects of any crime happened online. As I will be attending the Cyberlaw class, I hope that I will gain more knowledge on all these things as it is getting  more interesting...