December 2024 – Attorney Evan Brown

December 22, 2024 Cybersquatting, Trademarks

Cybersquatting claim failed where there was a weak mark and no evidence of bad faith intent

acpa

Aspire Health Partners sued Aspire MGT under the Anticybersquatting Consumer Protection Act, 15 U.S.C. §1125(d) (“ACPA”) over defendant’s registration and use of the domain name <aspirehealthgrp.com>. Plaintiff sought a preliminary injunction to stop defendant from using the disputed domain name, but the court denied the request. The court held that plaintiff failed to show that defendant acted with a bad-faith intent to profit from the use of the domain name, a key element of a cybersquatting claim under the ACPA.

To prevail on a cybersquatting claim under the ACPA, a plaintiff must demonstrate that (1) its trademark in the disputed domain name was distinctive when the domain name was registered, (2) the disputed domain name is identical or confusingly similar to that trademark, and (3) the defendant registered the disputed domain name with a bad-faith intent to profit. In this case, the court found plaintiff would not likely succeed on its cybersquatting claim because of deficiencies under the first and third element.

The court found that plaintiff’s mark was not distinctive but instead was descriptive as a “self-laudatory” type of mark. Citing to the well-known McCarthy treatise on trademark law, the court determined that the word “aspire” when applied to healthcare services was of the same sort of use as the word “best” or “super” that extolls some feature or attribute of services and thereby becomes descriptive in nature and likely too weak to be subject to trademark protection.

As for the lack of bad faith, the court found that plaintiff had only made a conclusory allegation on the topic. Looking at various factors that courts apply to determine bad faith under the ACPA, the court noted in particular, among other things, that defendant had used the domain name in connection with a bona fide offering of its goods and services, and had not been shown to possess any intent to divert customers form plaintiff’s website or any intent to transfer or sell the domain name for financial gain.

Three Reasons Why This Case Matters:

Legitimacy in Business Use: Using a domain name for legitimate business purposes can protect defendants against cybersquatting claims.
Trademark Strength: Descriptive trademarks often face greater challenges in cybersquatting cases without strong evidence of distinctiveness.
Evidence of Intent: Courts require clear proof of bad-faith intent to profit, not just similarity between domain names, to uphold a cybersquatting claim.

Aspire Health Partners, Inc. v. Aspire MGT LLC, 2024 WL 5169936 (M.D. Fla., Dec. 19, 2024)

December 18, 2024 Trademarks, Unfair Competition

When does a neighborhood name become a trademark?

neighborhood trademark
Stephanie Reveron sued multiple companies, including Zumiez, New Balance, Amazon, Etsy, Zazzle, and Redbubble, for trademark infringement. Plaintiff claimed that her trademarks, such as LES NYC and LOWER EAST SIDE were being improperly used on clothing and other products. She argued that defendants’ use of these marks created consumer confusion and amounted to unfair competition.

Defendants moved to dismiss the claims. They argued that their use of the words “Lower East Side,” “LES,” and similar phrases was protected under the “fair use” doctrine of trademark law. Specifically, defendants claimed they were using these terms descriptively to refer to the well-known geographic location in New York City, not as trademarks to identify the source of the goods.

The court dismissed certain claims but let others proceed. For certain defendants, such as New Balance, Etsy (partially), and Zazzle, the court found that the use of “Lower East Side” and similar terms clearly referred to the neighborhood, not to plaintiff’s brand. This use was descriptive, in line with the fair use defense, and did not infringe plaintiff’s rights. For others, such as Amazon and Redbubble, the court found that the use of the phrases—especially when stylized or prominently displayed—could plausibly be interpreted as trademarks, making dismissal inappropriate at this stage.

Why did the court reach this decision?

The court considered the fair use defense, which allows the use of trademark-protected words in a descriptive sense if done in good faith. The court reasoned that the phrases “Lower East Side” and “LES” are commonly understood as referring to the geographic location—a neighborhood in New York City. For most defendants, this descriptive use was clear, especially when the words appeared alongside other terms or images referencing the neighborhood. The court also noted that fair use often turns on context: when words appear on a product without clear descriptive meaning, the line between fair use and trademark infringement becomes less certain.

For defendants such as Amazon and Redbubble, the court found that more analysis was needed. In some cases, the terms “LES” or “Lower East Side” were stylized or prominently displayed in a way that might suggest they were being used as a brand identifier rather than in a purely descriptive sense. As a result, the court allowed those claims to move forward.

In short:

The court dismissed claims against most defendants because their use of the words “Lower East Side” and “LES” was descriptive and protected under the fair use defense. However, for some defendants, such as Amazon and Redbubble, the court allowed the claims to proceed because the use of the phrases could plausibly be seen as a trademark rather than a description of a location.

Three reasons why this case matters:

Clarifies Fair Use: The case highlights how courts apply the fair use defense when trademarks overlap with descriptive geographic terms.
E-Commerce Accountability: It raises questions about the role of online platforms, such as Amazon and Etsy, when third-party sellers offer potentially infringing products.
Balancing Trademark Rights: The case underscores the challenge of balancing trademark protections with the public’s right to use common words, such as neighborhood names, in a descriptive way

Reveron v. Zumiez, Inc. et al., 2024 WL 5131627 (S.D.N.Y. Dec. 17, 2024)

December 14, 2024 Uncategorized

Did the AP aid and abet the October 7 attack on Israel?

Noach Newman and others sued the Associated Press (AP), alleging that its use of freelance photographers with ties to Hamas contributed to the October 7, 2023, attacks in Israel. Newman and the other plaintiffs, who were either present at the attacks or affected by them, claimed AP’s publication of photos taken by these freelancers supported Hamas’s goals and amplified the terror group’s propaganda through social media. The court dismissed the case, finding plaintiffs’ allegations insufficient to proceed under federal and state anti-terrorism laws.

Plaintiffs’ claims focused on photographers and social media use

Plaintiffs argued that AP hired freelance photographers who were allegedly embedded with Hamas. The lawsuit claimed that these photographers knew of the attacks in advance, arrived at the scene alongside militants, and provided images to AP, which were then published in real time. According to plaintiffs, the publication of these photos—many of which later circulated on social media—acted as propaganda for Hamas, boosting its visibility and influence.

Plaintiffs also alleged that payments from AP to the photographers indirectly funded Hamas. They argued that defendant’s actions—hiring freelancers and publishing their content—both increased Hamas’s resources and legitimized its actions globally.

AP argued protections for journalism and lack of intent

Defendant filed a motion to dismiss, asserting that its publication of the photos was protected under the First Amendment. Defendant contended that it had no knowledge of any connection between the freelance photographers and Hamas and that hiring freelancers to document breaking news is a standard practice in journalism.

Additionally, defendant argued that plaintiffs failed to establish causation. Specifically, there was no evidence showing that defendant’s actions directly contributed to the attacks or to plaintiffs’ injuries.

Court dismissed the lawsuit

The court ruled in favor of the AP, finding that plaintiffs’ allegations did not demonstrate that AP knowingly supported terrorism. While the court acknowledged that the freelance photographers may have had ties to Hamas, there was no evidence showing defendant was aware of those affiliations at the time of hiring or publication. The court also determined that publishing truthful, newsworthy images, even if later shared on social media or repurposed as propaganda, did not amount to aiding terrorism.

Finally, the court noted that plaintiffs failed to prove causation. Plaintiffs provided no evidence that defendant’s publication of the photos influenced the attack or exacerbated their injuries.

Three reasons why this case matters

intersection of social media and news reporting: The case highlights how widely shared news content can take on new life on platforms such as Instagram and X, raising questions about journalistic responsibility.
Legal standards for reporting on terrorism: The decision reaffirms protections for journalists who document global events, even when their work involves sensitive subjects such as terrorism.
The role of freelancers in news gathering: It underscores the complexities of relying on freelancers in conflict zones and the need for media organizations to vet contributors carefully.

Newman v. Associated Press, No. 1:24-cv-20684-KMM, 2024 WL 5063288 (S.D. Fla. Dec. 10, 2024).

December 10, 2024 Defamation, Unfair Competition

Alex Jones gets partial win in Connecticut lawsuit over unfair trade practices

Erica Lafferty, William Sherlach, and other family members of victims of the Sandy Hook Elementary School shooting sued Alex Jones, Free Speech Systems, LLC, and related entities. Plaintiffs sought damages for defamation, invasion of privacy, emotional distress, and violations of the Connecticut Unfair Trade Practices Act (CUTPA). Plaintiffs argued that defendants’ conspiracy theories about the Sandy Hook shooting violated CUTPA because defendants spread lies to attract audiences and sell products such as dietary supplements and survival gear. Plaintiffs asked the court to hold defendants liable for using false statements as a deceptive trade practice tied to their business interests.

The trial court ruling

The trial court sided with plaintiffs and allowed the CUTPA claim to proceed. It found that defendants’ false statements about the shooting being a hoax were tied to the sale of products advertised on their media platforms. According to the lower court, defendants’ spreading of falsehoods to increase product sales qualified as an unfair trade practice under CUTPA. The jury awarded plaintiffs substantial damages, including compensation for the CUTPA violation.

The appellate court reversal

Defendants appealed, and the appellate court reversed the trial court’s ruling on the CUTPA claim. The appellate court concluded that defendants’ defamatory statements were not directly tied to the sale of goods or services in a way that CUTPA covers. While defendants monetized their platforms, the court reasoned that the alleged lies about Sandy Hook were not themselves commercial conduct. The court ruled that the connection between the false statements and product sales was too weak to support a CUTPA violation. As a result, the appellate court directed the trial court to adjust the judgment by removing the damages associated with the CUTPA claim.

Three Reasons Why This Case Matters:

It’s Sensational: Anything involving Alex Jones and the Sandy Hook Massacre are attention-getting.
Protects Defamation Framework: By separating defamation from trade practices, the court preserved traditional tort remedies for harmful speech without expanding CUTPA.
Addresses Modern Media Monetization: The case underscores how courts assess financial gain from speech in an era of monetized platforms.

Lafferty v. Jones, — A.3d —, 2024 WL 5036021 (App. Ct. Conn. December 10, 2024)

December 3, 2024 First Amendment

The State of Washington throws the book at Meta for violation of political campaign disclosure law

In April 2020, the State of Washington sued Meta, alleging violations of Washington’s Fair Campaign Practices Act (FCPA). The case centered on Meta’s failure to comply with state disclosure laws, which require companies hosting political advertisements to maintain and disclose specific records of those ads. The state argued that Meta’s actions obstructed transparency in campaign finance, a cornerstone of Washington’s electoral integrity.

What the state asked for

The state sought several remedies to address Meta’s alleged violations. This included civil penalties for each instance where Meta failed to comply with disclosure requirements, an injunction mandating Meta to adhere to the law, and reimbursement of the state’s attorney’s fees and litigation costs. The lawsuit aimed to hold Meta accountable for hindering public access to critical information about political advertising on its platform.

The court’s decision

The lower court ruled in favor of the state, finding that Meta had committed 822 violations of Washington’s disclosure law. The court imposed $24.66 million in civil penalties and $10.52 million in attorney’s fees and costs, totaling $35.18 million. Notably, the court awarded treble damages for certain claims, finding certain of Meta’s violations to be intentional. The court also issued an injunction requiring Meta to satisfy the judgment within 30 days.

Meta appealed the decision, arguing that the disclosure law violated the First Amendment, was preempted by federal law (specifically Communications Decency Act at 47 USC 230), and that the lower court had miscalculated damages. However, the appellate court upheld the lower court’s decision in full, rejecting each of Meta’s arguments.

Why this case matters:

Reinforces Campaign Transparency: The case underscores the importance of public access to information about political advertising, a critical element of electoral transparency.
Holds Big Tech Accountable: The decision demonstrates that even global technology companies must comply with state laws, reinforcing the limits of federal protections such as Section 230.
Sets a Legal Standard: This ruling may inspire other states to enforce or strengthen campaign finance laws to ensure transparency in digital advertising.

State of Washington v. Meta Platforms, Inc., — P.3d —, 2024 WL 4929812 (Wash. Ct. App., Div. 1, Dec. 2, 2024).

December 3, 2024 Right of Publicity, Section 230, Social Media

Section 230 protected Meta from Huckabee cannabis lawsuit

Mike Huckabee, the former governor of Arkansas, sued Meta Platforms, Inc., the parent company of Facebook, for using his name and likeness without his permission in advertisements for CBD products. Huckabee argued that these ads falsely claimed he endorsed the products and made misleading statements about his personal health. He asked the court to hold Meta accountable under various legal theories, including violation of his publicity rights and privacy.

Plaintiff alleged that defendant approved and maintained advertisements that misappropriated plaintiff’s name, image, and likeness. Plaintiff further claimed that the ads placed plaintiff in a false light by attributing statements and endorsements to him that he never made. Additionally, plaintiff argued that defendant had been unjustly enriched by profiting from these misleading ads. Defendant, however, sought to dismiss the claims, relying on the Communications Decency Act at 47 U.S.C. 230, which grants immunity to platforms for third-party content.

The court granted Meta’s motion to dismiss. It determined that Section 230 shielded defendant from liability for the third-party content at issue. The court also noted that plaintiff’s allegations lacked the specificity needed to overcome the protections provided by Section 230. Furthermore, the court emphasized that federal law, such as Section 230, preempts conflicting state laws, such as Arkansas’s Frank Broyles Publicity Protection Act.

Three reasons why this case matters:

Defines Section 230 Protections: It reaffirms the broad immunity tech companies enjoy under Section 230, even in cases involving misuse of publicity rights.
Digital Rights and Privacy: The case highlights the tension between protecting individual rights and maintaining the free flow of online content.
Challenges for State Laws: It shows how federal law can preempt state-specific protections, leaving individuals with limited recourse.

Mike Huckabee v. Meta Platforms, Inc., 2024 WL 4817657 (D. Del. Nov. 18, 2024)

December 1, 2024 Artificial Intelligence, Blockchain, Copyright, Cryptocurrency, non-fungible token, Social Media

X can claim trespass to chattel in data scraping case

X Corp. sued Bright Data Ltd. for unauthorized access to X’s servers and the scraping and resale of data from X’s platform. Plaintiff sought the court’s permission to file a second amended complaint after the court dismissed its prior complaint. The court granted plaintiff’s motion in part and denied it in part, allowing some claims to proceed while dismissing others.

Plaintiff alleged that defendant’s scraping activities caused significant harm to its systems. According to plaintiff, defendant’s automated scraping overwhelmed servers, causing system glitches and forcing plaintiff to purchase additional server capacity. Plaintiff further alleged that defendant used deceptive techniques, including fake accounts and rotating IP addresses, to bypass technical barriers and access non-public data. Plaintiff claimed that these actions violated its Terms of Service, interfered with its contracts, and constituted unfair and fraudulent business practices. Plaintiff also introduced new claims under federal and state anti-hacking laws, including the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act.

The court agreed with plaintiff on several points. It allowed claims related to server impairment, including trespass to chattels and breach of contract, to move forward. The court found that plaintiff’s revised complaint provided sufficient details to plausibly allege harm to its servers and unauthorized access to its systems.

However, the court dismissed claims concerning the scraping and resale of data, ruling that they were preempted by the Copyright Act. Plaintiff had argued that it could prevent defendant from copying user-generated or non-copyrightable data through state-law claims. The court disagreed, holding that such claims conflicted with federal copyright policy, which limits protections for factual data and prioritizes public access. Additionally, the court rejected plaintiff’s argument that defendant’s actions constituted “unfair” business practices, finding no evidence of harm to competition.

Finally, the court allowed plaintiff to proceed with its new anti-hacking claims but left the door open for defendant to challenge these allegations later in the case.

Three Reasons Why This Case Matters

Defines Platform Rights: This case clarifies the limits of platform operators’ ability to control user-generated and public data.
Reinforces Copyright Preemption: The decision highlights the importance of federal copyright laws in preventing conflicting state-law claims.
Explores Anti-Hacking Laws: It illustrates how federal and state anti-hacking statutes may be used to address unauthorized access in the digital age.

X Corp. v. Bright Data Ltd., 2024 WL 4894290 (N.D. Cal., Nov. 26, 2024)