Website’s Browsewrap Agreement Inconspicuous and Unenforceable

Brett Long, a California resident, bought Mother’s Day flowers for his mother, living in Kansas, from ProFlowers.com.  Long thought he was buying a completely assembled bouquet, but the flowers arrived as a do-it-yourself-kit.  Long filed suit in California state court against Provide Commerce, Inc., an online retailer and owner of ProFlowers.com.  Long alleged violations of California state statutes and sought to bring a class action. 

Provide moved to compel arbitration, arguing that Long was bound by the ProFlowers.com Terms of Use, which required arbitration.  The trial court ruled that the hyperlinks on the ProFlower.com website were too inconspicuous to put a reasonably prudent Internet consumer on inquiry notice.  On appeal, the Court of Appeal agreed with the trial court.

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No Registration Required for DMCA Copyright Management Information Claim

Playboy sued Mediatakeout.com (MTO) for copyright infringement and violating the Digital Millennium Copyright Act (DMCA).  Playboy owns the exclusive license to 3 photos of entertainer Azealia Banks.  Two registered photos are nude photos.  One unregistered photo is a non-nude photo.  Playboy alleges that MTO removed Playboy’s watermark and applied MTO’s own watermark to the photos before publishing the photos on MTO’s website.

MTO moved to dismiss Playboy’s complaint for failure to state a cause of action.  MTO argued that it had a license from Playboy to publish the photos, that MTO’s use of the photos was a fair use and that Playboy could not file suit on the unregistered photo.  The district court denied MTO’s motion to dismiss.

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Neither Side Wins the Land O’ Lakes Tug of War

So in this unusual case two firms sued each other though neither had been, is, or is likely to be harmed in the slightest by the other. The suit was rightly dismissed.

This is the last paragraph of this Seventh Circuit trademark opinion, written by Judge Posner.

Jack Hugunin began selling the fishing tackle he manufactured in the Land O’ Lakes region of Wisconsin in 1997.  He decided to use LAND O LAKES as the trademark for his fishing tackle and received a registration from the USPTO in 2000. 

Land O’ Lakes, the Minnesota dairy products company, started sponsoring the Wal-Mart FLW Tour and began advertising in fishing magazines in 1997.  After Hugunin received his USPTO registration for LAND O LAKES for fishing tackle, Land O’ Lakes dairy company contacted Hugunin, informing him that his use infringed the dairy’s famous trademark and that Hugunin would need to get a license from the dairy to continue using the mark.  Hugunin refused.  The dairy then filed an opposition to Hugunin’s reapplication for his trademark, which had lapsed.  Hugunin then sued the dairy in federal district court, claiming that his use of the mark has priority in the fishing industry and that the dairy’s involvement in the fishing industry created reverse confusion.

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Former NFL Pros’ State Right of Publicity Claims Preempted by Copyright Act

John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin are former National Football League (NFL) players who participated in a class action against the NFL.  The former players sued the NFL, claiming right of publicity and Lanham Act (trademark) violations by the NFL for showing the players in films about significant moments in NFL history.  NFL Films sells consumers copies of the films and licenses the films for public display to Warner Home Video, Hulu, ESPN and others.  The other class action participants settled with the NFL, but Dryer, Bethea and Alvin did not.

The district court granted the NFL’s motions for summary judgment on the players’ right of publicity and Lanham Act claims.  The Eight Circuit affirmed the district court’s ruling.

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