Hulk smash trademark infringement!

Puny power tool manufacturer, don't make Hulk angry. You wouldn't like him when he's angry.

THR, Esq., the Hollywood Reporter's entertainment law blog, reports that Marvel has sued a manufacturer that is using the name Hulk as a brand name for air compressors. Airbase Industries applied last year to register HULK as its own trademark for power and hand tools (USPTO serial number 77757650); Marvel has opposed that application. Marvel has now filed suit against Airbase in federal court, alleging trademark infringement and various other claims.

MVL Rights v. Airbase Industries - Complaint

Minnesota vs. National Arbitration Forum

The National Arbitration Forum and the Attorney General of Minnesota have reached an agreement under which NAF will cease accepting new arbitration cases involving consumers, including collection actions by credit card companies. The consent decree (dated July 17, 2009) does not apply to ICANN domain name disputes nor to certain other types of arbitration matters currently administered by NAF.

See also the AG's press release, her earlier complaint against NAF, and NAF's statement on the settlement.

The Attorney General has also asked the American Arbitration Association to exit the consumer arbitration field. (Another company, JAMS, also offers consumer arbitration services, but apparently has not been approached by the AG.)

Update, 7/22/09:  The American Arbitration Association says it will stop handling consumer debt collection cases "until some standards or safeguards are established." Wall Street Journal, July 22, 2009, page A1 (full text of story here). See also Deepak Gupta's take in CL&P Blog.

Kentucky's Internet gamble

Governor Steve Beshear of Kentucky is seeking to seize more than one hundred gambling-related domain names. A judge initially rejected the governor's bid and has scheduled a hearing for October 7. See coverage in the Louisville Courier-Journal, DomainNews, and The Iconoclast.

John Levine's take on the issue sounds right to me. I doubt very much that Kentucky has adequate grounds for jurisdiction over the domain names, the registrants, the registrars, or the registries. Any registrar that voluntarily forfeits a domain name on behalf of a registrant is likely asking to be sued.

Gimme an "A"!

As anyone who has flown Southwest Airlines well knows, Southwest doesn't assign seats in advance. Instead, you are assigned a boarding priority when you check in at the airport or online, up to 24 hours before the flight. At the gate, you line up with others in your boarding group, and then when your group is called, you stampede onto the plane looking for anything other than a middle seat. (And if you're one of those rude jerks who max out the carry-on allowance rather than checking your bags like the rest of us, you spend several minutes blocking the aisle so you can stake a claim to space in the overhead compartment and then try to jam your oversized baggage there rather than placing it under the seat where it belongs. But enough on that rant.)

Since you can't reserve a seat ahead of time, getting an "A" boarding pass turns out to be critical. If you wait until you arrive at the airport to check in, you'll almost certainly be stuck with a "B" or even a "C", and even if you wait more than an hour at the front of the line for your particular boarding group, you still risk getting stuck with an aisle seat. In some instances, you apparently have to check in within the first few minutes (i.e., exactly 24 hours before your flight time) in order to get an "A" boarding pass.

BoardFirst and similar services have seemingly found a way around this ridiculous situation. (Yes, I realize that some people actually like Southwest's dysfunctional approach; I think it's just because they've figured out how to beat it, kind of like how ticket brokers who have figured out how to get good concert tickets from Ticketmaster don't think that system is broken.) If you're willing to trust BoardFirst with your Southwest flight information, BoardFirst will log on to Southwest's website when check-in opens and put you near the front of the line for an "A" boarding pass. BoardFirst charges $5 for this service.

Southwest sued BoardFirst last year based upon a variety of legal theories, including a claim that BoardFirst enters into a browsewrap contract with Southwest each time it accesses Southwest's website on a customer's behalf, and that contract prohibits third parties such as BoardFirst from checking customers in or obtaining boarding passes for them. This month the court ruled in Southwest's favor on that claim, although from a quick look at BoardFirst's website, it appears that BoardFirst may still be accepting "orders" from Southwest customers.

Southwest Airlines Co. v. BoardFirst, L.L.C., No. 3:06-cv-00891 (N.D. Tex. Sept. 12, 2007).

R.I.P.

The Rev. Jerry Falwell died today. I met him once, in 1986 or so, when he came to my law school to give a talk. While I disagreed (and still do) with most of what he stood for politically, I enjoyed talking with him then and have always had a great deal of respect for him.

A few years ago I served on a dispute resolution panel that awarded the domain name fallwell.com to Dr. Falwell. I dissented from that decision, and later felt vindicated by the Fourth Circuit's subsequent ruling [PDF].

More CDA Immunity Cases

A couple of cases involving service provider immunity under the CDA (47 U.S.C. § 230(c)) came down within the past week. In Chicago Lawyers' Committee v. Craigslist, Inc. (N.D. Ill. Nov. 14, 2006), the court held that the CDA bars Craigslist from being held liable for publishing discriminatory housing ads in violation of the Fair Housing Act, although the court in dicta rejected the "essentially uniform body of case law" including Zeran v. America Online (4th Cir. 1997) that grants broad immunity to websites under § 230(c). In Barrett v. Rosenthal (Cal. Nov. 20, 2006), the court issued a much broader decision affirming broad immunity for service providers.

For more on these decisions, see commentary by Eric Goldman (also here), Susan Crawford (also here), Kurt Opsahl (also here), Eugene Volokh, Evan Brown, and Robert Ambrogi.

E360 Insight v. The Spamhaus Project

I'm following the E360-Spamhaus dispute with great interest, and have been discussing it in my Cyberspace Law seminar at The John Marshall Law School. The case presents some fascinating issues in the areas of spam law, Internet governance, civil procedure, and international law -- and it happens to have a handful of connections with John Marshall.

In the district court, the case was heard by Judge Charles P. Kocoras, who has served on the federal bench for over 25 years and has taught at John Marshall as an adjunct professor for even longer than that. Matthew Neumeier of Jenner & Block, an adjunct professor in John Marshall's Information Technology and Privacy Law program, is representing Spamhaus in its appeal to the Seventh Circuit. Matthew Prince's comments about the case have been widely quoted in the media; he is CEO of Unspam Technologies and also is an adjunct professor in John Marshall's IT law program. And a similar fact scenario (i.e., spam-related accusations as the basis for suspension of a domain name) was used as the problem for John Marshall's annual moot court competition way back in 1996. The best briefs and the bench memorandum prepared for that competition were subsequently published in John Marshall's Journal of Computer & Information Law.

Watch out for the googly eyes!

Google apparently has been sending out cease-and-desist letters complaining about the word "google" used as a generic term for searching the Internet (E-Commerce News; ZDNet News). I don't think we really need "google" (or "googling") as a synonym for "search the web," but I'm amused that the word has taken on so quickly.

On the other hand, "tivo" as a generic term for a DVR (and as a verb meaning "to record on a DVR") is a very helpful addition to the English language. I suspect that TiVo Inc.'s anticompetitive behavior (see my previous blog entry) has probably encouraged users to genericize its mark.

Don't mess with my tivo (generically speaking)

TiVo, which manufactures digital video recorders (DVRs), is involved in a patent dispute with EchoStar, the owner of Dish Network. TiVo alleges that the generic DVRs offered by Dish to its subscribers infringe upon various patents held by TiVo. A federal court yesterday ordered EchoStar to stop selling the allegedly infringing DVRs. The court also gave EchoStar 30 days to disable both the recording and playback capabilities of most of the Dish DVRs currently in subscribers' homes (about 3 million). The district court refused to stay its order, although the Federal Circuit today stepped in to stay the injunction, at least for the time being.

Details are at News.com and Zatz Not Funny; Patently-O has copies of the district court's order and opinion.

Ordering EchoStar to stop offering DVRs (and worse, to break the ones already in use) is simply going to remove Dish as a viable competitor to DirecTV, Comcast, etc., and drive up programming costs for all consumers. We need more competition in this market, not less, and reducing competition in the programming market is ultimately going to hurt TiVo as well. Instead, why not simply require EchoStar to pass along to TiVo the monthly DVR fees that it collects?

Captain Copyright is a stinkybutt poopyhead

In the spirit of my now-static Don't Link website, here is an unauthorized link to a Canadian website that apparently doesn't like being linked to: "Captain Copyright" is a site operated by Access Copyright, the Canadian Copyright Licensing Agency. The site's "Intellectual Property Notice and Disclaimer" prohibits other sites from linking to Captain Copyright if a site's contents, in their opinion, are "damaging or cause harm to the reputation" of Access Copyright. (A similar prohibition appears on the main Access Copyright website.)

Based upon these ridiculous attempts at restricting inbound links (not to mention other outrageous content on the site, as Michael Geist and Laura Murray have noted), I think that Access Copyright is a bunch of doodoo-heads, and Captain Copyright is a stinkybutt poopyhead.

In case I haven't yet annoyed them enough, here's another helpful website with a bit more information on "Captain Copyright and his underage sidekick Trademark Girl."

(A hat tip goes to Wallace J. McLean for alerting me to the Captain's folly.)