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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...

Look and Feel - Internet Library of Law and Court Decisions - Updated May 2, 2007

478 F.Supp.2d 1240, No. C06-1002RSL (W.D. Wash., Jan. 18, 2007)

Court allows plaintiff Blue Nile to proceed with trade dress infringement claims against direct competitors arising out of their alleged creation of a web site that copied the "look and feel" of plaintiff Blue Nile's web site.  The Court denied defendants' motion to dismiss the trade dress claim, which motion was grounded on defendants' assertion that it was preempted by Copyright Act.  The Court held it could not resolve the preemption issue at the outset of the litigation given the limited factual record developed to date.  It also rested its decision on the precept that claims raising novel issues should not be resolved on motions to dismiss, without the benefit of a development of a complete factual record.

The Court did dismiss so much of plaintiff's complaint that alleged that defendants had violated the Washington Consumer Protection Act, and asserted claims for unfair competition, unjust enrichment and restitution.  These claims were all grounded on defendants' alleged copying of copyrighted elements of plaintiff's web site, and were thus preempted by the Copyright Act.  Notably, this copying formed the basis of copyright infringement claims that were also asserted in the complaint, and were not the subject of the instant motion.

Quick Hits

Nautical Solutions Marketing, Inc. v.
2004 WL 783121 (M.D. Fla. 2004)

Use by competing yacht broker of internet "spider" to extract non-copyrightable facts concerning yachts for sale from competitor's website did not infringe website owner's copyright.  Court held that "momentary copying" of competitor's site during this "extraction" process was a permissible fair use under Section 107 of the Copyright Act.  Court further held that copying, modifying and reposting individual yacht listings and the pictures contained therein with the permission of either the yacht owner or his broker did not infringe any copyrights in such works, which were held by the yacht broker and not the competitor's web site on which the listings were posted.  Finally, web site's owners claim that competitor infringed its copyright by copying the site's "look and feel" failed because, according to the court, the similarities between the sites derived from unprotectable elements, including pictures, headings and descriptions of yacht listings.

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