Fair Use

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Americash Loans, LLC v. AO Ventures, LLC, No. 08 C 5147 (N.D. Ill. Mar. 19, 2009) (Der-Yeghiayan, J.).
Judge Der-Yeghiayan denied defendant AO Ventures (“AOV”) motion to dismiss plaintiff Americash Loans’ Lanham Act and related state law claims. Americash Loans alleged that AOV infringed Americash Loans’ “Americash Loans” mark by advertising confusingly similar mark on AOV’s website. First, the Court held that Americash Loans’ prior settlement of a trademark dispute with a third party did not preclude this suit. The prior suit involved a different mark, “Americash,” and Americash Loans did not allege that AOV was acting as an agent of the third party involved in the earlier settlement when it allegedly used the infringing marks.
The Court also held that the fact that AOV was not accused of using the exact mark, but a confusingly similar mark was not grounds to dismiss the complaint. The Court noted that customer confusion between similar marks was a recognized part of trademark infringement analysis and that suits were routinely filed alleging infringement based upon the use of marks that were not identical to the asserted trademark.
Further, the Court held that whether AOV’s display of a third party’s advertisement was a use of the accused mark was a question of fact that could not be resolved by a Rule 12 motion. Finally, the Court held that it could not decide whether AOV’s alleged infringement was a nominative fair use of Americash Loans’ mark because any fair use analysis involves questions of fact.
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Continue Reading Fair Use & Similarity of Marks Not Issues for Motion to Dismiss

Here are some interesting IP-related posts and because everyone (at least in Chicago) still seems to have last week’s election on their minds, the first is election related:
* The MTTLR Blog’s Dorothy Eshelman has an interesting post on whether the use of debate clips by, among others, the candidates involved is fair use — click here to read it. I agree with Eshelman’s conclusion that it is probably not fair use. And I agree that debate footage should be dedicated to the public domain, at least on a limited basis. It would be an easy matter for debate commissions to require that for the privilege of filming the debate networks agree that their footage be available in the public domain so long as it is not used near in time to the debate itself (perhaps within an hour) and so long as clips are limited to no longer than a few minutes or one question and set of answers.
* The MTTLR Blog’s Sherri Nazarian looks at the application of the Computer Fraud and Abuse Act (“CFAA”) to hacking VP candidate Sarah Palin’s email and argues that the CFAA needs to be modernized — click here to read the post. Nazarian explains that the email hacking was not enough to trigger the CFAA, enacted in 1984. Perhaps it is time to update the 24 year old CFAA to meet the massive changes in technology.
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Continue Reading Post-Election IP News

Matteo v. Rubin, No. 07 C 2536, Slip Op. (N.D. Ill. Dec. 3, 2007) (Kendall, J.).
Judge Kendall denied defendant’s motion to dismiss plaintiff’s copyright infringement and related state law claims. Plaintiff photographed defendant’s daughter’s wedding pursuant to a contract between plaintiff and defendant’s wife. Defendant was allegedly unsatisfied with plaintiff’s photographs and, therefore, allegedly created numerous website regarding plaintiff’s photographs including defamatory comments about both plaintiff and his photographs. The Court held that plaintiff stated a claim for copyright infringement because he pled that he owned copyrights in his photos and that defendant infringed those copyrights by posting the pictures on websites. Plaintiff was not required to plead that defendant received any economic benefit from his alleged infringement. Additionally, plaintiff did not have to register his copyright before defendant’s allegedly infringing acts. Finally, the Court held that defendant’s fair use defense was not grounds for dismissal. Fair use is a factual inquiry best resolved on summary judgment or at trial.
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Continue Reading Economic Benefit to Defendant Not Required for Copyright Infringement