The Internet Trilogy

In Storus Corp. v Aroa Marketing, the Ninth Circuit determined that the defendants use of the plaintiff's mark in connection with Google AdWords is infringing. The theory forming the backbone is called the "intial interest confusion", but the real test which brought down the flag for the defendants is something known as the "controlling trioka or the internet trinity"!!!

Out of the eight Sleekcraft Factors, the three crucial ones are “(1) the similarity of the marks; (2) the relatedness or proximity of the two companies’ products or services; ... (4) the marketing channels used." Having brushed off the issue of validity of the plaintiff's trademark by finding no "issue of material fact", the Court determined that the defendants failed to prove that their intent was not to divert consumers by using the plaintiff's mark in the AdWords.

However, an interesting comment on the evidentiary requirement has been written by Eric Goldman where he questions the threshold for satisfying such a requirement and if one does exist at all.

Rowling v RDR

I came across an interesting quote by Rudyard Kipling which said "All people like us are we, and the rest are they." To me, it epitomizes the world of copyright owners and the non-copyright owners. On this note, a developing story is reported as follows:

THE RECENT CONFLICT BETWEEN THE TWO NATIONS OF "WE" & "THEY"

J.K. Rowling and Warner Bros. (hereinafter "WE") sued RDR Books (hereinafter "THEY") in New York in October, 2007 alleging that the publication of "The Harry Potter Lexicon" violates their copyright and trademark rights. The Complaint alleges "misappropriation of Ms. Rowling's fictional characters and universe" and consumer confusion caused by association. Specifically, WE alleges that the lexicon has "blatantly copied...fictional facts" and thus, infringed the copyrights held in the original Harry Potter works. Ms. Rowling claims to have previously allowed limited derivative works but is opposed to such unpermitted wholesale "companion books" as indulged in by the likes of "THEY." The allegation of copyright infringement is predicated on the "unilateral repackaging of the website for sale to cash in monetarily". As a defense, the defendants claimed "fair use."

Fair use attempts to balance the rights of a copyright owner with the rights of non-owners. To use the work without stepping on the toes of a sleeping monster, fair use requires that the use be for critisism, news reporting, education etc and the application of a four part test. The test includes the (1) purpose and character of defendant’s use, (2) nature of the copyrighted work, (3) quantity and quality of the work used and (4) effect on a potential market.

Interestingly, the Stanford Center for Internet and Society has decided to sign up to defend RDR, on the basis that the Fair Use Doctrine protects RDR’s right to publish the Lexicon. However, whether the work is transformative enough or did it usurp a potential market for Ms. Rowling - all shall be determined post trial scheduled on April 14th in New York.

Can hardly wait to be there.