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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...

Online Defamation - Privilege - Internet Library of Law and Court Decisions - Updated November 21, 2008

No. CV-06-1537-PHX-DGC (D. Az., September 5, 2008)

Court in large part grants defendants’ motion for summary judgment, and dismisses claims arising out of defendants’ operation of a website on which third parties, and defendants themselves, posted a number of statements critical of plaintiff Best Western International Inc.  Left unresolved by the Court’s motion were plaintiff’s claims that a number of additional posts authored by defendants were in fact defamatory.

Best Western is a non-profit member corporation, which assists its members in running their hotels.  Defendants are members of Best Western who operate hotels, their spouses, and an individual who assisted in the creation of the website at issue.  The member defendants are bound by the terms of membership agreements with plaintiff. 

The Court held that the immunity granted defendants under the Communications Decency Act barred plaintiff from seeking to hold them liable for defamatory posts authored by third parties that appeared on defendants’ website.  Defamation claims arising out of 50 posts defendants themselves authored failed because plaintiff did not present sufficient evidence to establish that defendants acted with the requisite degree of fault necessary to sustain a defamation claim.  Thus, plaintiff failed to establish that defendants acted with either actual malice or negligence in making these statements, or with knowledge of their alleged falsity.   In reaching this result the Court noted that possessing ill will toward plaintiff was insufficient to establish ether that defendants acted with the requisite degree of fault, or that they were guilty of defaming plaintiff. 

The Court also rejected tortuous interference with contract or prospective advantage claims arising out of the posting on defendants’ site of statements urging plaintiff’s members to switch to a competitor’s organization.  The Court held that plaintiff failed to prove either that such statements caused it any injury, or that defendants or the competitor acted improperly in making these posts.  In reaching this result, the Court noted that plaintiff’s competitor is free to make posts that promote itself and its own economic interests.

Finally, the Court rejected various breach of contract claims advanced by plaintiff, asserting that defendants breached the parties’ membership agreement by making public confidential information, or failing to meet the membership agreement’s requirement to use their best efforts to maintain positive relationships with customers.  As to the former, the Court held there were no such prohibitions in the parties’ agreement that bound defendants.  As to the later, the Court held that the prohibitions applied to other aspects of defendants’ business, with which obligations defendants complied.

The Court did allow plaintiff Best Western to pursue breach of contract claims arising out of the use by the member defendants of Best Western’s trademark on the website at issue, which use purportedly violated the parties’ membership agreement.

207 F. Supp.2d 914 (W.D. Wis., March 28, 2002)

Court allows plaintiff to proceed with claims advanced against his employer and various fellow employees under the Electronic Communications Privacy Act, the Electronic Communications Storage Act, and Wisconsin's right to privacy statute, Wis. Stat. Section 895.50, as well as a common law defamation claim, arising out of defendants' interception of a telephone call plaintiff placed from his place of employ, and defendants' review of e-mails contained in a personal e-mail account plaintiff maintained with Hot Mail, which account plaintiff accessed from his work place.  There were sharply differing versions of the content of these various communications.  Defendants alleged that during the telephone call, the participants, while masturbating, graphically described homosexual activity between two males.  Plaintiff denied this.  Defendants also alleged that e-mails read from plaintiff's email account evidenced that plaintiff was involved in homosexual activity.  Plaintiff denied that these e-mails had been sent to him.

Defendants' version of the telephone conversation was related to various third parties, which resulted in the termination of plaintiff's employment.  This lawsuit ensued.  The court determined that plaintiff should be permitted to proceed with various claims he asserted. 

The court refused to dismiss plaintiff's claim, advanced under Wisconsin's right of privacy law, section 895.50, arising out of the review of e-mail from plaintiff's personal Hot Mail account.  The court held that issues of fact existed as to whether the review of such e-mail would be highly offensive to a reasonable person, and as to whether a reasonable person could consider such an account to be private, which precluded a grant of summary judgment to defendants.  The court also refused to dismiss the claim plaintiff brought under the Electronic Communications Storage Act arising out of the review of these e-mails.  If such a review took place (as opposed to defendants' having fabricated the e-mails) it would run afoul of the Stored Communications Act.  The court did dismiss the claims plaintiff raised under the Computer Fraud and Abuse Act, holding that plaintiff had not alleged economic damages arising from the review of these e-mails sufficient to state a claim under the Act.

The court also refused to dismiss the claims plaintiff advanced under the Electronic Communications Privacy Act and Wisconsin Privacy Act arising out of the interception of the telephone call described above.  The court refused to dismiss plaintiff's ECPA claim because, depending on what actually occurred, the defendants should have stopped listening to the telephone call when they discovered it was personal in nature.  The court refused to dismiss plaintiff's privacy act claims because plaintiff may have had a reasonable expectation of privacy in the telephone call if his claim that he made the call from a place his employer designated for private personal calls was true.

Lastly, the court refused to dismiss plaintiff's defamation claim, finding that issues of fact precluded it from determining whether defendants' communication of their version of the telephone call to third parties was protected by the common interest privilege possessed by members of religious associations as to communications pertaining to the qualifications of those who work for the organization.  Such privilege may have been lost, given plaintiff's claim that the defendants were lying about what took place during the telephone call.

30 F.Supp.2d 1292, 1998 U.S. Dist. Lexis 17253 (D. Colo., October 16, 1998)

Court held that defendant who engaged an independent contractor to mount a spam advertising campaign on defendant's behalf could not be held vicariously liable for damages caused when the independent contractor, without defendant's knowledge, inserted a "forged" header in the spam's "From" and "Reply to" fields which header constituted plaintiff's domain name. This act had the predictable effect of causing plaintiff to receive both numerous complaints from recipients of the e-mail, as well as "bounced back" undeliverable e-mail.

The court further held that plaintiff's counsel had no absolute immunity from defamation claims brought by defendant arising out of various statements counsel made about defendant and the lawsuit which were posted to plaintiff's website. While such a privilege does exist for statements made by the attorney "... during the course and as part of a judicial proceeding in which [she] participates as counsel if it has some relationship to the proceeding," it does not extend to statements made concerning the lawsuit to via the Internet to the public at large. The court nonetheless dismissed defendant's counterclaim for libel per se because the allegedly defamatory statements were non-actionable statements of opinion that, in most instances, also failed to be sufficiently plain on their face to be libelous per se.

Case No. 1:04cv510 (S.D. Ohio June 15, 2007)

Court allows plaintiff Taylor Building Corporation of America (“Taylor Building”) to proceed with libel claims arising out of the publication of a gripe site critical of plaintiff’s work by a relative of a disgruntled customer.  The Court denies so much of defendant’s motion for summary judgment which sought to dismiss these claims holding, inter alia, that issues of fact as to whether publication of the statements on this website were sufficiently limited to ‘proper parties’ so that their publication was protected by the qualified privilege applicable to statements made to protect the public interest precluded such an award.

The Court did grant so much of defendant’s motion for summary judgment which sought to dismiss “initial interest confusion” Lanham Act claims plaintiff asserted arising out of defendant’s use on his gripe site of a service mark and trade dress allegedly similar to those of the plaintiff.  The Court held such claims failed because consumers were not likely to be confused as to the source of defendant’s site, or attribute it to the plaintiff, as the site was critical of plaintiff, was found at the domain Taylor Homes –, and bore a “header” that stated “Taylor Homes Ripoff.  Badly Fingering Your Dreams.  Taylor Sold Us A Quality Home and Gave Us Garbage.”

Finally, the Court dismissed plaintiff’s tortuous interference with contractual and business relations claims.  The Court held that plaintiff had failed to demonstrate that defendant had sufficient knowledge of the actual contracts or relationships allegedly interfered with by the operation of his gripe site to sustain such claims.

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