Evidence – Page 2 – Attorney Evan Brown

June 16, 2011 Evidence, Trademarks, Unfair Competition

Customer reviews on social media provide important evidence in trademark dispute

Chipotle Mexican Grill, Inc. v. Chipotles Grill of Jonesboro, Inc., 2011 WL 2292357 (E.D. Ark. June 9, 2011)

The awesome burrito place Chipotle sued another restaurant that called itself Chipotles for trademark infringement. Plaintiff sought a preliminary injunction. The court granted the motion.

One of the most important factors in the court’s decision to grant injunctive relief was the plaintiff’s showing that it will likely succeed on the merits of the case. In a trademark infringement action, that analysis takes the form of the likelihood of confusion analysis.

Among the factors that a court should consider in determining whether there is a likelihood of confusion is whether there has been any actual confusion among members of the consuming public. In this case, the court found that the evidence plaintiff submitted of actual confusion was “substantial.”

In addition to a number of emails that customers had sent to plaintiff, the court looked to a couple of customer review sites — urbanspoon.com and Yahoo’s associatedcontent.com — each of which contained customer reviews that erroneously linked plaintiff and defendant. The court found this to constitute actual confusion, which could not be remedied even through reasonable care on the part of the consumers.

The case gives a good example of how companies (and their competitors) should be aware of how their brands appear in social media. Evidence of actual confusion is a powerful tool for a trademark plaintiff (and a potentially damning one for a trademark defendant). Smart companies will ensure they remain aware of how their marks and overall brand identity are being put forth, even off the beaten path on the web.

Evan Brown is a Chicago-based attorney practicing technology and intellectual property law. Send email to ebrown@internetcases.com, call (630) 362-7237, or follow on Twitter at @internetcases.

April 8, 2011 Evidence, Litigation

MySpace evidence was inadmissible hearsay

Musgrove v. Helms, 2011 WL 1225672 (Ohio App. 2 Dist. April 1, 2011)

An Ohio domestic relations court ordered an ex-wife to pay her ex-husband child support. Based on evidence that the ex-wife’s income had increased, the court increased the amount of support she had to pay. One of the pieces of evidence the court relied on was information from the ex-wife’s MySpace page where she had stated her income was “less than $30,000.” (This comported with other evidence suggesting her income was around $29,000).

The ex-wife sought review of the order increasing child support with the appellate court. On appeal, the court found the MySpace page to be inadmissible hearsay, and vacated that portion of the order.

The finding turned on a nuance of the rules of evidence pertaining to hearsay. Generally, hearsay is inadmissible as evidence, but there are exceptions. One of the exceptions is statements made by the declarant that are against her interest. The court found that although the MySpace information was used in a way adverse to the ex-wife’s interest (i.e., to increase her support obligation), as a declaration it was not adverse to her interest because it was not an assertion of fact which was by its nature contrary to her interest.

So this case is a reminder that notwithstanding any increased interest in the discoverability of social media evidence, the rules in place may serve to render the information discovered ultimately useless later in the litigation.

September 20, 2010 Employment, Evidence

Plaintiff failed to show that Facebook pics supported hostile workplace claim

Jabbar v. Travel Services, Inc., 2010 WL 3563112, (D.Puerto Rico September 10, 2010)

Plaintiff sued her former employer for racial discrimination. The court granted summary judgment in favor of the employer, finding there was not enough evidence to go to trial on plaintiff’s claim. Plaintiff asked the court to reconsider the judgment against her. The court held its ground.

One of the assertions that plaintiff made was that someone from work had posted a discriminatory comment on a Facebook photo taken at a company outing.

The court found there was no evidence apart from plaintiff’s own deposition testimony that the company’s official policy was to upload photos to Facebook. And there was no evidence as to who owned the Facebook account in question.

So the court found no basis to overturn its earlier determination that plaintiff failed to establish a prima facie case of employment discrimination.

September 17, 2010 Evidence, Litigation

Juror internet research again causes criminal conviction to be overturned

Child molester’s conviction vacated because juror read articles about victim’s alleged injuries.

Lockwood v. State, 2010 WL 3529416 (Nev., September 3, 2010)

Last week it was manslaughter. This week it’s child molestation.

Defendant was convicted on multiple counts of the heinous crime of sexual assault of a child under the age of sixteen. He moved for a new trial when he learned that the jury foreperson did some internet research on the nature of the injuries suffered by the victim. The trial court denied the motion for a new trial, but the Nevada supreme court overturned the conviction on the basis of the juror misconduct.

To be successful on a motion for new trial, the defendant had to show (1) the occurrence of juror misconduct, and (2) that the misconduct was prejudicial.

The court held that although independent research by a juror generally would not give rise to the presumption of prejudice, in this case, the independent research did rise to that level.

The jury foreperson consulted eight to ten internet articles on the nature of the victim’s injuries over the course of forty-five minutes and shared her research with the rest of the jury during deliberations. The court held that by conducting her own research and relaying that information to the rest of the jury, the foreperson engaged in misconduct that was prejudicial.

The information related directly to whether it was possible that the victim was assaulted. Moreover, by sharing that information, the foreperson might have bolstered the credibility of both the victim and the State’s expert witness and thereby infected the deliberations such that there was a “reasonable probability that the information affected the verdict.”

November 4, 2009 Evidence, Litigation

Robbery conviction overturned because prosecutor played YouTube video during closing argument

Miller v. State, 2009 WL 3517627 (Ind. App. October 30, 2009)

Appellant Miller and his dad robbed Wedge’s Liquor Store in Logansport, Indiana back in November 2007. During the robbery Miller pulled out a shotgun and pointed it at the clerk’s face.

Get your grubby paws off my YouTube image

During closing argument at trial, the prosecutor showed the jury a video from YouTube to illustrate “how easy it was to conceal a weapon inside clothing.” The video was not admitted as evidence but was used merely as a demonstrative aid. The jury convicted Miller and the court sentenced him to 18 years in prison.

Miller appealed his conviction, arguing that the trial court made a mistake in letting the jury see the YouTube video. The court agreed with Miller and reversed.

The court noted that experiments and demonstrations may be permitted during trial if they will aid the court and jury. But in this case the court of appeals found that the YouTube video showing how weapons could be concealed could not possibly provide such aid. The state conceded in its appeallate brief that Miller’s defense theory was mistaken identity. So “the whole issue about the ability to hide weapons under clothing was ultimately unimportant.”

Moreover, before showing the video to the jury, the prosecutor said that the video “[had] nothing to do with this case.” The court of appeals agreed with Miller’s argument that the video “[brought] alive the passions of the jury . . . and suggested Miller was not only the robber but that he also . . . intended to . . . cause injury or death.” The video “was irrelevant, prejudical, and confused issues. . . .”

YouTube evidence picture courtesy Flickr user PIAZZA del POPOLO under this Creative Commons license.

October 16, 2009 Evidence

Web photos inadmissible as evidence in case against deer hunter

State v. Ness, — N.W.2d —-, 2009 WL 3296676 (N.D. Oct. 15, 2009)

Another day, another state supreme court decision about whether web-found evidence is admissible. Yesterday our discussion was about a MySpace posting in a murder trial. (The evidence in that case was admissible.) Today it’s about pictures from the Internet in a case against a hunter accused of failing to tag the deer he had shot. (The evidence in this case was inadmissible.)

Defendant Ness was charged with violating a proclamation of the governor of North Dakota (which has the force of law) requiring hunters to “immediately” place a state-issued tag on all deer killed. At trial, his attorney cross examined the game warden who issued the citation to Ness while Ness was cutting the deer up in his front yard. In connection with this cross examination, Ness’s lawyer tried to introduce photos from the web of other hunters, to shed light on what the word “immediately” meant.

The trial court excluded the photos of other hunters. Ness was found guilty and sought review with the North Dakota Supreme Court. On appeal, the court agreed that the photos were properly excluded.

Ness argued that keeping the photos away from the jury during the game warden’s cross examination violated his constitutional right to confront his accuser. The Supreme Court rejected that argument, however, finding that the pictures of other hunters with other animals at other times were irrelevant to the present matter and would not help the jury determine whether the law was broken in this case.

Deer photo courtesy Flickr user law_keven under this Creative Commons license.

October 15, 2009 Evidence

MySpace posting was not improper character evidence at murder trial

Clark v. State, No. 43S00-0810-CR-575 (Ind. October 15, 2009). [Download the opinion]

Defendant Clark killed his girlfriend’s two-year-old daughter. At his murder trial, the prosecution introduced the following post Clark had made to his MySpace page:

Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I’m glad to say I have helped you people in my past who have done something and achieved on the other hand, I’m sad to see so many people who have nowhere. to those people I say, if I can do it and get away. Bullshit. And with all my obstacles, why the fuck can’t you.

Clark was convicted of murder and sentenced to life in prison. He sought review with the Indiana Supreme Court. On appeal, the court affirmed the conviction.

One of the arguments Clark raised on appeal was that the trial court committed error when it allowed the jury to consider the MySpace posting. He claimed that it was improper character evidence under Indiana Rule of Evidence 404(b) which provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The Supreme Court held that Rule 404(b) did not apply because “[i]t was Clark’s words and not his deeds that were at issue.” The posting was “solely evidence of [Clark’s] own statements, not of prior criminal acts.”

Moreover, Clark had made an issue of his character when he testified in his own defense. One theme of his testimony was that he had acted recklessly, and that had he intended to kill the victim he would have done more to conceal the crime. The court held that the bravado exhibited in the MySpace posting (in conjunction with a statement Clark had made to a detective upon his arrest, namely, “I will fucking kick your ass. I will send the Hell’s Angels to kill you. Fuck it. It’s only a C felony. I can beat this.”) was probative in that it countered his argument of “mere” recklessness.

September 21, 2009 Computer Crime, Evidence

MySpace drinkin’ photos causing real life problems again

Last time it was probation being revoked. This time it’s children being taken away. A recent Texas case shows how irresponsible social media use can have some unpleasant consequences.

Mann v. Department of Family and Protective Services, 2009 WL 2961396 (Tex. App. September 17, 2009)

Appellant had her baby taken away by state protective services. She sought review with the court claiming, among other things, that the state had presented “no evidence that [Appellant] engaged in endangering conduct.”

Woo hoo

The court found otherwise, agreeing with the lower court that Appellant had endangered the child. Among the evidence it considered were photos from Appellant’s MySpace account with the following captions, unedited to preserve their original ebullience:

At Ashley House Dranking it Up
Me Helping Ashley Stand Up, Were Both Drunk
Me Dancing my ass off, I can dance when I drunk
Yall see how much we Dranked plus the one’s that droped on the floor
We were all fucked up

Oh, by the way, Appellant was under 21.

The court held that “[t]his evidence could lead a reasonable factfinder to firmly believe that appellant engaged in underage drinking on these two occasions, despite knowing that she was under the legal drinking age.”

Photo courtesy Flickr user Mercury98 under this Creative Commons license.

August 12, 2009 Computer Crime, Evidence

Conviction for sending intimidating MySpace message overturned

Marshall v. State, 2009 WL 2243467 (Ind. App. July 28, 2009)

Gotta love the facts of this case from my home state of Indiana.

Marshall and Goodman traded cars with one another, but that deal went sour. Marshall then got into an altercation with Goodman’s mother (named Lee) and Marshall was arrested. She was also ordered to have no contact with either Goodman or Lee. Three days after her arrest, Marshall sent the following (redacted) private message through MySpace to Goodman:

Dont think that you are gonna get away from this s***. you can’t hide forever and one of these days when you are out and about … you know thy aint going to pin nothing on me. Cant prove s***. aint gonna and I am just waiting for that day. You want a war? ? ? Your gonna get it now f*****. I don’t know YET who told you the s*** in my blogs or was feedin you info on me but you can rest assured that I am gonna f*** them uptoo when I found out. And I WILL find out. The s*** aint done and you better know that. Its only a matter of time.

The b**** you know I can be.

(Ed. note: stay classy, Ms. Marshall!)

Based on this message, Marshall was convicted of felony intimidation against Lee. The prosecution had argued that Marshall committed this crime by communicating a threat to knowingly injure Lee, with the intent that Lee be placed in fear of retaliation for calling the police.

Marshall sought review of her conviction with the Indiana Court of Appeals. On appeal, the court reversed the conviction.

The court held that the prosecution failed to prove its allegations of intimidation against Lee, because the message was sent to Goodman’s ( and not Lee’s) MySpace account. Even though an intimidating communication may be indirect, the state had to prove that Marshall must have known or had reason to know that her communication would reach Lee. In this case, there was no such proof.

The MySpace message was not addressed to Lee, nor was she mentioned by name. Accordingly, there was no evidence that Marshall knew or had reason to know that Goodman would show the message to his mother.

Photo courtesy Flickr user subewl under this Creative Commons license.