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Designer Skin LLC v. S & L Vitamins, Inc., et al.
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...

Doe v. America Online

Case No. CL 97-631AE (Cir. Ct. Palm Beach Co. Fla, June 26, 1997), aff'd. 718 So. 2d 385 (Fl. Ct. App., Oct. 14, 1998) aff'd. 2001 Fla. Lexis 449 (Fla. March 8, 2001)

Defendant Russell committed sexual battery on John Doe, at that time an 11 year old male, by allegedly engaging him and two others to perform sexual acts with Russell and another, which Russell photographed and videotaped. Russell later marketed these tapes by informing people in AOL "chat rooms" that such tapes were available for sale.

Plaintiff, Doe's guardian, commenced suit against AOL, charging that because AOL "was on notice" of Russell's use of its chat rooms, it had violated several Florida state statutes prohibiting the sale or distribution of obscene material. Plaintiff also charged AOL with common law negligence.

The Court dismissed plaintiff's claims against AOL, holding that they were preempted by Section 230 of the Communications Decency Act ("CDA"). Following Zeran v. AOL, 958 F. Supp. 1124, the Court held that subjecting AOL to liability because it was on notice of Russell's conduct would treat it as a publisher of information, which was prohibited by the CDA. Such a holding, said the Court: "would subject AOL to principles of liability that govern traditional publishers (such as newspapers and magazines) but that do not govern entities (such as telephone companies) that provide a service over which numerous third parties may communicate with one another." This would run counter to the purpose of the CDA, inter alia, because it would provide a disincentive to ISPs to attempt to monitor the content transmitted over their services.

The Court also held that the CDA applied retroactively to preempt state law claims which arose out of events that occurred prior to the enactment of the CDA, but were not asserted until after its enactment. 

The full text of this decision can be found on a website maintained by David J. Loundy.

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