The 9th held last Friday that a domain name registrant may sue a registrar, NSI, for conversion of the registrant’s domain name. Kremen v. Cohen, CV-98-20718-JW (9th Cir. Jul. 25, 2003). The case turned on whether a domain name is a species of “property” susceptible to conversion. In an opinion written by Judge Kozinski, the 9th Circuit agreed with Kremen that domain names are such a species.

Judge Kozinksi is a former chief judge of the Court of Federal Claims, where takings claims against the government are litigated, and so knows from property rights (he is also, incidentally, a proto-blogger). The judge can be a funny guy, and the opinion is a hoot to read; given its implications, however, NSI and other registrars are unlikely to (more...)

The 4th Circuit recently solidified the principle it first articulated in May that, so long as personal jurisdiction is available, US law governs entirely any domain dispute brought in a US court. Hawes v. NSI, No. 02-1182 (4th Cir. Jul. 9, 2003). Moreover, by virtue of US companies' control over the registry system for generic top-level domains, the holding in Hawes permits a US court to recover control over a domain name even if the domain is registered by a foreign citizen through a foreign registrar. (more...)

The Supreme Court of California held earlier this week that mass e-mails do not constitute trespass to chattels unless they damage the recipient’s computer equipment. Intel v. Hamidi, S103781 (Ca. Jun. 30, 2003) [Briefs available here]. In doing so, the court braked a judicial trend to extend trespass law to cover unsolicited website visits or e-mail. Nevertheless, a close read of the decision suggests that it may exert little effect on the options available to plaintiffs situated similarly to Intel. (more...)

"There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world[,]" the 9th Circuit began an opinion earlier this week. Batzel v. Cremers, CV-00-09590-SVW (9th Cir. Jun. 24, 2003). Congress, the Court observed, had other ideas, which it embodied in Section 230 of the CDA. In a lengthy opinion, a split panel of the 9th Circuit extended Section 230’s reach farther than any other circuit, to encompass any individual who publishes information on the Internet that is sent to her by a third party, so long as she reasonably believed the sender (more...)

The Fourth Circuit yesterday reversed one of the most outrageous cybersquatting decisions to emerge from the Eastern District of Virginia. Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona, No. 02-1396 (4th. Cir. Jun. 2, 2003). The appellate decision stands as perhaps the most cogent statement of the jurisdictional and substantive basis for “review” of UDRP decisions by (more...)

My first post to this blog pointed to a New York Times article entitled “The Power of the Fourth.” The article covered “the Fourth Circuit[, which] is considered the shrewdest, most aggressively conservative federal appeals court in the nation.” I noted that the 4th Circuit was particularly important to domain name law because so many domain disputes are amenable to jurisdiction in Virginia.

And the 4th Circuit did not disappoint. Yesterday, the court issued a decision in a UDRP review case that is shrewd, aggressively conservative, and particularly important to domain name law. The decision explodes the reach of ACPA and, in fact, of the Lanham Act generally.

A split panel of the court announced that the Lanham Act’s “use in commerce” requirement is met by a foreign company that advertises in the US but does no business there, so long as the foreign company has done business with Americans abroad. Int'l Bancorp, LLC v. Societe Des Bains de Mer et du Cercle des Etrangers a Monaco No. 02-1364 (4th Cir. May 19, 2003)[case citation via How Appealing]. These Americans would return home, Judge Motz opined in dissent, carrying the trademark rights they created “like some sort of foreign influenza[.]” (more...)

The 9th Circuit recently upheld a lower court finding that use of a competitor’s trademark in a website’s text and metatags constituted trademark infringement. Horphag Research Ltd. v. Pellegrini, CV-00-00372-VAP (9th Cir. May 9, 2003). The decision raises the stakes for parties that use a competitor’s mark for comparative advertising. (more...)

A First Circuit decision suggests that online service providers should either be very careful what they promise or be very thorough about beta testing before they make the promises. The court, in In Re Pharmatrak, Inc. Privacy Litigation, No. 02-2138 (1st Cir. 2003), held that Pharmatrak, a website statistics provider for several pharmaceutical companies, intercepted Internet communications without consent in violation of the Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. §§ 2511, 2520 (2000).

ECPA expands anti-wiretapping protections to electronic communications. It is unlawful under ECPA to intercept communications between two parties intentionally if neither consents to the interception.

The pharma companies hired Pharmatrak to monitor visitors to the pharma companies' sites via cookies and web bugs. (more...)

The US Court of Appeals for the Federal Circuit and district courts in Maine and Illinois handed down Internet jurisdiction decisions this month. See Hockerson-Halberdt, Inc. v. Propet USA, Inc., 2003 U.S. App. LEXIS 7277 (Apr. 1, 2003); Cecil McBee v. Delica Co., Ltd., 2003 U.S. Dist. LEXIS 6123 (D. Me. Apr. 14, 2003); Caterpillar Inc., v. Mishkin Scraper Works, Inc., 2003 U.S. Dist. LEXIS 6174 (C.D. Ill. Apr. 8, 2003). These nominally unrelated cases suggest a few lessons taken together. (more...)

The 6th Circuit held yesterday that anything appearing in a URL after the top level domain (e.g., “.com,”) is unlikely to indicate source. Interactive Products Corporation v. a2z Mobile Office Solutions,Inc., et al., No. 01-3590 (6th Cir. Apr. 10, 2003). Thus, the court found, “it is unlikely that the presence of another’s trademark in a post-domain path of a URL would ever violate trademark law.” [case citation via How Appealing] (more...)

Spring in D.C., and an old blawger’s fancy turns to cherry trees.

Federal courts in Texas and New York recently granted motions to dismiss in Internet jurisdiction cases. See Arriaga v. Imperial Palace, Inc., CA NO. H-02-1071 (SD Tx Mar. 20, 2003); Radio Computing Services, Inc. v. Roland Computer Services, 00 Civ. 1950 (GBD)(SDNY Mar.13, 2003). One case turned on general jurisdiction under the Constitution. Jurisdiction in the other case foundered on the state’s long-arm statute; this case may be part of a counter-trend. (more...)

A recent case from Maine imparts a practice tip and a substantive reminder. See Women To Women, Inc. v. Woman To Woman Co., Civil No. 02-52-P-H (Dist. Me. Apr. 1, 2003). (more...)

In March 2002, the Northern District of California enjoined Taxes.com from “overusing” references to its competitor in the tax services industry, J. K. Harris, in comparative advertising on Taxes.com’s website. Last week the Court reversed itself.

Taxes.com had maintained a web page criticizing J. K. Harris’s business practices. J. K. Harris alleged, inter alia, that Taxes.com created initial interest confusion by repeating J. K. Harris’s trade name in conjunction with certain HTML formatting. In particular, J. K. Harris alleged that Taxes.com wrongly achieved search engine popularity for searches on “J.K Harris” and related phrases by a) creating “keyword density,” b) creating header tags and underline tags around sentences that used J. K. Harris’s trade name; c) using J. K. Harris’s trade name as a keyword in numerous parts of the website; d) using links to web sites with information about J. K. Harris. (more...)