Articles Posted in August, 2013


Seaton v. TripAdvisor,  US 6th Cir. (8/28/13)
Communications Law, Constitutional Law, Injury Law, Internet Law

broomGrand Resort, which has operated in the Great Smoky Mountains since 1982, claims that TripAdvisor’s publication of a survey that concluded that Grand Resort was the dirtiest hotel in America caused irreparable damage to its business and that TripAdvisor used a flawed rating system that distorted actual performance and perspective. The district court dismissed, reasoning that the “dirtiest hotels” list is protected opinion; it reflects TripAdvisor’s users’ subjective opinions and is not capable of being defamatory. The court rejected a motion to amend to add claims of trade libel-injurious falsehood and tortious interference with prospective business relationships to the claims of false light-invasion of privacy and of defamation. The Sixth Circuit affirmed, noting that amendment of the complaint would be futile.


caduceusIn a recent filing, EveryMD LLC—perhaps best known for its (in)famous lawsuit against Rick Santorum, Mitt Romney, Newt Gingrich, and approximately four million Facebook business account holders—is suing Facebook for allegedly infringing on its patent on its system for online communication that underlies its model for allowing patients to email doctors directly. According to the complaint, the patent at issue is U.S. Patent No. 8,499,047, entitled “Method, apparatus and business system for online communication with online and offline recipients.”

According to the website:

EveryMD’s Doctor E-Mailer service is a unique, free, patent-pending system that allows your office to receive online prescription refill requests and requests for scheduling appointments from patients on your office’s existing fax machine.

Posted in: Patent, Technology


Shore v. Maple Lane Farms, LLC, Tennessee Supreme Court (8/19/13)
Agriculture Law, Injury Law, Zoning, Planning & Land Use

Certain amplified music concerts were conducted on farm land in a rural county. The county board of zoning appeals later ordered the business owners who hosted the concerts to limit the concerts to one per year, but the business owners defied the order. Plaintiff, a neighborhood property owner, filed suit seeking to enforce the zoning authority’s decision and to abate the concerts as a common-law nuisance. The trial court granted Defendants’ motion to dismiss, concluding (1) the concerts were exempted from local land use regulations because they qualified as “agriculture”; and (2) the Tennessee Right to Farm Act (Act) precluded nuisance liability. The Supreme Court reversed, holding (1) the concerts were not “agriculture” for the purpose of the zoning laws; and (2) the Act did not apply to the music concerts, and Plaintiff presented a prima facie case of common-law nuisance. Remanded

Read More: State high court: Music festivals on farms not shielded from nuisance complaints

Balintulo v. Daimler AG, US 2nd Cir. (8/21/13)
Class Action, Injury Law, International Law

Plaintiffs filed putative class-action suits over ten years ago under the Alien Tort Statute (ATS), 28 U.S.C. 1350, on behalf of those harmed by the South African legal regime known as “apartheid.” Plaintiffs asserted that defendants aided and abetted violations of customary international law committed by the South African government by selling cars and computers to the South African government. Defendants petitioned for mandamus relief. The court concluded that, in light of the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., issuance of the writ was unnecessary in this case because defendants have an adequate means of relief through a motion for judgment on the pleadings; plaintiffs’ arguments that Kiobel did not apply where defendants were American citizens, or where the case involved American interests, were without merit; and, because the Kiobel decision plainly foreclosed plaintiffs’ claims as a matter of law, the court need not consider whether defendants have asserted a valid basis for “collateral order” jurisdiction under 28 U.S.C. 1291. Accordingly, the court denied the petition for mandamus relief and vacated the stay placed by the court on proceedings in the district court.

Read More: High Court Decision Cited in Rejection of Apartheid Liability


Seltzer v. Green Day, Inc., et al., US 9th Cir. (8/7/13)
Copyright, Intellectual Property, Trademark

Plaintiff filed suit against Green Day and others, alleging violations of the Copyright Act, 17 U.S.C. 101 et seq., aCopyright Symbolnd the Lanham Act, 15 U.S.C. 1051 et seq., because Green Day used plaintiff’s illustration, “Scream Icon,” in the video backdrop of its stage show. On appeal, plaintiff challenged the district court’s grant of summary judgment in favor of Green Day on all claims and the grant of attorney’s fees to Green Day under the Copyright Act. The court concluded that Green Day’s use of the illustration was fair use under the Copyright Act where the purpose and character of the use was transformative and not overly commercial; the nature of the work included its status as a widely disseminated work of street art; Green Day’s use of the work was not excessive in light of its transformative purpose; and Green Day’s use did not affect the value of the piece or of plaintiff’s artwork in general. In regards to plaintiff’s claims under the Lanham Act, the court concluded that plaintiff failed to establish any trademark rights. The court concluded, however, that the district court clearly erred in finding that plaintiff’s claims were objectively unreasonable. Accordingly, the court affirmed the district court’s grant of summary judgment but vacated the award of attorneys fees.

Read More: Green Day not liable for using artist’s work at concerts

Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., US 6th Cir. (8/5/13)
Civil Rights, Landlord-Tenant, Zoning, Planning & Land Use

Connor Group owns and manages about 15,000 rental units throughout the U.S., including about 1,900 in the Dayton area. Its rental agent posted an ad on Craigslist: 599/1br – Great Bachelor Pad! (Centerville) … Our one bedroom apartments are a great bachelor pad for any single man looking to hook up. This apartment includes a large bedroom, walk in closet, patio, gourmet kitchen, washer dryer hook up and so much more….  A fair-housing organization sued, charging violation of the Fair Housing Act’s section 3604(c) and Ohio’s Revised Code section 4112.02(H)(7), claiming that the bachelor pad ad was facially discriminatory to families and women. The court provided a jury instruction that “The question is not whether the particular advertisement discourages some potential renters from applying … but whether such discouragement is the product of any discriminatory statement or indication in the advertisement. If an ordinary reader who is a member of a protected class would be discouraged from answering the advertisement because of some discriminatory statement or indication contained therein, then the fair housing laws have been violated.” The trial court ruled in favor of the landlord. The Sixth Circuit reversed and remanded for a new trial based on the erroneous instruction.

Read More: Ohio fair housing group gets new trial in discrimination suit over ‘bachelor pad’ apartment ad


Brown v. Electronic Arts, Inc., US 9th Cir. (7/31/13)
Civil Rights, Constitutional Law, Consumer Law, Entertainment & Sports Law, Intellectual Property, Trademark

Football ConceptRetired Hall of Fame football player, James “Jim” Brown, filed suit against EA, alleging that EA violated section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), through the use of Brown’s likeness in EA’s “Madden NFL” series of football video games. The court rejected the “likelihood of confusion” test and the “alternative means” test, concluding that the only relevant legal framework for balancing the public’s right to be free from consumer confusion about Brown’s affiliation with “Madden NFL” and EA’s First Amendment rights in the context of Brown’s section 43(a) claim was the Rogers v. Grimaldi test. Applying the Rogers test, the court concluded that the use of Brown’s likeness was artistically relevant to the “Madden NFL” games and that there were no alleged facts to support the claim that EA explicitly mislead consumers as to Brown’s involvement with the games. In this case, the public interest in free expression outweighed the public interest in avoiding consumer confusion. Accordingly, the court affirmed the district court’s grant of EA’s motion to dismiss.

NCAA Licensing Litigation, US 9th Cir. (7/31/13)
Civil Rights, Class Action, Constitutional Law, Consumer Law, Entertainment & Sports Law, Intellectual Property, Trademark

Former starting quarterback for Arizona State University, Samuel Keller, filed a putative class action suit against EA, alleging that EA violated his right of publicity under California Civil Code 3344 and California common law by using Keller’s likeness as part of the “NCAA Football” video game series. EA moved to strike the complaint as a strategic lawsuit against public participation (SLAPP) under California’s anti-SLAPP statute, Cal. Civ. Proc. Code 425.16. The court concluded that EA could not prevail as a matter of law based on the transformative use defense where EA’s use did not qualify for First Amendment protection because it literally recreated Keller in the very setting in which he had achieved renown. The court also concluded that, although there was some overlap between the transformative use test and the Rogers v. Grimaldi test, the Rogers test should not be imported wholesale to the right-of-publicity claims. Finally, the court concluded that state law defenses for reporting of information did not protect EA’s use. Accordingly, the court affirmed the district court’s denial of the motion to strike the complaint.

Read More: Ninth Circuit Sides With Athletes in EA Video Games Case