Updates And Comments: Posting On Facebook At Work Is Criminal?, Past Notice Doesn't Create Obligation To Police Site, Use of Competitor's Trademark As Keyword Is Infringement But No Damages, and Red Soles In The Sunset.
A few comments and updates:
1. The Ninth Circuit recently held in U.S. v Nosal (9th Circuit No. 10-10038) that exceeding your employer's computer use restrictions could be criminal under the Computer Fraud and Abuse Act, 18 U.S.C. 1030 et seq. Sec. 1030 (a) (4) states: "Whoever... knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value.." violates this statute. The Defendant had authority to access the computer in question but exceeded his employer's written use policy and obtained some confidential information. The Court reasoned that this satisfied the statutory requirement of "exceeds authorized access" and if coupled with furthering fraud and obtaining something of value that was sufficient to avoid dismissal. Was the headline about accessing Facebook at work being criminal hyperbole? Yeah, a little, but it caused you to look, didn't it? A lesson to be learned from this is that a well crafted computer use policy will be another tool for employers to use to protect their trade secrets. Employees' rights groups are not thrilled.
2. We noted recently that continuing to provide certain services after actual knowledge of infringing activity could lead to liability for contributory infringement but that prior received notices were not necessarily actual knowledge. This principle was confirmed in Wolk v. Kodak Imaging Network Inc., Southern District of New York, March 17, 2011. The Court in Wolk held that previous takedown notices from the same artist did not give rise to actual or apparent knowledge nor the obligation to police the site for infringement.
3. Suits relating to use of competitor's trademarks as search terms continue to show up. We had discussed a couple here and here. In InternetShopsInc.com v. Six C Consulting, Inc. the defendants conceded liability but the Court failed to award any damages because they could not find a single sale that resulted from the infringement. The Court did enjoin the de
fendant from using the trademark as a search term going forward.
4. Louboutin is a luxury shoe retailer who started marketing shoes with red soles in 1992. Yves Saint Laurent recently marketed shoes with the same color uppers and soles. One of these was red and therefore had a red sole. Others were blue and green with correspondingly colored soles. Louboutin has filed an infringement action relating to the red soled variety in the Southern District of New York. A pivotal issue in this case will be whether consumers will be confused. Would you be confused if you were going to pay more than $1,000 for a pair of shoes? I mean confused as to the identity, not the wisdom of paying that much for shoes.
