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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

University of Evansville, et al. v. Dr. William Felsher

No. 82S04-0008-CV-477 (Sup. Crt. Ind., October 1, 2001)

The Supreme Court of Indiana affirmed in part and reversed in part the decisions of the courts below. The Indiana Supreme Court affirmed those portions of the lower courts' decisions that held that Dr. Felsher had violated the privacy rights of three University of Evansville employees by, inter alia, creating e-mail accounts and web sites containing their last name, first initial, and the letters UE (an abbreviation for University of Evansville), sending e-mail from such accounts nominating the employees for various positions at other institutions, and referring the reader of such e-mail to the web sites defendant created which contained materials critical of the three employees. The Supreme Court affirmed that portion of the decisions below which held that such conduct violated the individual defendants' privacy rights, and enjoined defendant from engaging in such conduct in the future. The Supreme Court reversed those portions of the decisions below which held that Felsher, by his acts, had also violated the privacy rights of the University of Evansville on the grounds that a corporation does not possess a right to privacy. The court held that the University may be able to obtain redress for any misuse of its name by asserting claims under other theories, such as unfair competition, which had not yet been plead.

Defendant, Dr. William Felsher ("Felsher"), was a French professor at the University of Evansville who was terminated in 1991. Plaintiffs consisted of the University of Evansville, its President, Dr. James Vinson, its Vice President for Academic Affairs, Dr. Greiner, and its then Dean of the College of Arts and Sciences, Dr. Colter.

Defendant created e-mail accounts which contained the last name of these individuals, the first letter of their first name and the letters "UE," a common nickname for the University of Evansville. The e-mail accounts were created in such a way that recipients of e-mail from such accounts would believe the mail came from one of the individual plaintiffs. For example, one of the e-mail accounts defendant created was

Defendant also created a series of websites on which he posted articles he wrote, which contained comments critical of the individual plaintiffs. Defendant thereafter sent e-mails from the e-mail accounts he had created in which he nominated the individual plaintiffs for various academic positions with third parties. These e-mails referred the prospective employers to the web sites defendant had created which, as stated above, contained comments critical of the plaintiffs.

Plaintiffs brought this suit, claiming that defendant's use of their identities in the manner described above invaded their respective rights of privacy. The trial court agreed, and issued an injunction, enjoining defendant, inter alia, from appropriating the names and likeness of the plaintiffs or any other individual associated with the University, using the e-mail addresses at issue or any other e-mail containing plaintiff's names or the UE nickname, or nominating the plaintiffs or any other person associated with the University for positions with other schools. The Court of Appeals affirmed. The Supreme Court affirmed in part, and reversed in part.

The Supreme Court held that a corporation does not have a right of privacy, and hence cannot bring an action for its invasion. The Court accordingly reversed so much of the decision of the lower courts which found in favor of the University on its right of privacy claim. The court did note that there were a number of claims the University could bring which might permit redress for the alleged misappropriation of its name by defendant, including unfair competition and trademark infringement under Indiana State law. Because such claims had not been pled, however, the court did not determine whether defendant's conduct constituted either unfair competition or trademark infringement.

The Court affirmed so much of the decisions below which held that defendant, by his conduct, had violated the privacy rights of the individual plaintiffs. With one modification, the Court upheld the injunctive relief granted the individual plaintiffs by the lower courts. The Supreme Court modified the injunction so as to permit defendant to continue to nominate University employees for positions with third parties, provided that in so doing, he did not create the appearance that his nominations came from anyone other than himself. The Court upheld the balance of the injunction as it pertained to the individual plaintiffs, and those associated with the University.

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