$32 million - Hosting Company Liable for Contributory Trademark Infringement
 

This is a very important decision for hosting companies and sites that may be liable for contributory trademark infringement. Luis Vitton hits a hosting company for contributory infringement for hosting sites selling counterfeit LV goods.

I can see how this decision may also apply to affiliates using a trademarked name in their URL.

If a hosting company receives notice that a site is potentially liable for trademark infringement and does not have a policy in place to remove the site and they fail to police their own sites, they may ultimately be responsible for contributory trademark infringement.

http://www.computerworld.com/s/artic...k_infringement

I would also add that this gives content producers another way to try to get stolen content removed from infringing sites.

If you have your name/logo trademarked and your content watermarked forget DMCA you can go around copyright and file under a contributory trademark theory.

This decision could be a weapon against tube sites. If you do not have a trademarked logo watermark, it might be a good time to consider it.

I am sure there will be an appeal, but I think this decision will be affirmed.

Interesting. It's more about the "non-policing" issue than anything else.. can't claim the "rogue developer" defense!

big hitttttttt

Calling Shap. :)

It is Louis Fuckin Vuitton

holly shit 32mil for bags...
but looks like no one cares for free movies being downloaded and watched all over the web...

nice, nice, and.... nice!

:thumbsup

its a start. But it will be interesting when someone uses this case to assert a future claim.

Actually a great thread. Thank you for posting.

good info :thumbsup

Thanks.

All content producers and program owners should take notice of this case and how it can get them around the DMCA. With a watermarked trademark you can now make several types of claims for damages and are no longer stuck with actual damages if your content is not registered with the Copyright Office.

It will also have an impact with just getting people to remove content that contains your mark/logo. Otherwise they are contributing to the infringement and can be liable.

Great post...love reading stuff like this

I'm pretty sure the big tubes just crop the watermarks right off anyway. :(

It's not that interesting. The guy selling the stuff owned the ISP.

Very interesting read.. could give a lot of people a very bad day...

By being the actual owner of the content which you could prove... wouldn't that help your case if they knowingly are cropping watermarks.

These guys should have known better. If you're going to operate a site like that host in Hong Kong, Panama, hell...even Amsterdam would be fine.

Fucking retards hosting in the U.S. shows they sure did their due diligence. :helpme

The world is coming to an end next week so it all is irrelevent.

doesn't matter - if it WAS there it can be matched up and proven stolen

URL? Well, hopefully you mean toplevel, like trademarkXXXX.com and not XXXX.com/trademark/ . Otherwise, everyone can start shutting down their blogs and other pages :)

I bought a domain once with a trademarked name in it, but I asked first. Everyone should ask first - not assume it is ok.

So true companies are going to be scrambaling through their affilates for most of the day tomorrow.

Yes, I was talking about the trademark in the TLD. After the .com is fine.

any good lawyer knows that is a bit of stretch to extend this ruling to that extreme.

you should be ashamed of yourself for making such a stupid declaration here.

point to a case where the person is using the trademark to sell fake bags (no fair use defense whatsoever) and trying extend it one that does have fair use defensive arguements is patently irresponsible.

Unless your trying to scam to pay you large sums of money to fight out that dog of a case
in which case good for you take advantage of all the idiots on this board.

it does set a precerdent of sorts:2 cents::thumbsup

read the whole article before drawing conclusions on how effects tube site.

I've got a quick question (well.. ok, a few questions, technically) for you, not related to this case or decision, but related to tube sites and their conduct, generally, and the legal disposition thereof.

Is it your position that a tube site operator who knowingly and willfully uploads content that he has no rights/license to (or has one of his employees, agents or assigns do so on his behalf) is engaging in activity covered by the safe harbor provisions of the DMCA? Or is it your contention that they are engaging in "fair use" of said content? Or is it your position that in those circumstances, the behavior in question would constitute infringement, either direct or contributory?

For the purposes of this hypothetical, let's assume the content uploaded is full, unedited scenes ripped from either DVDs or websites.

Just curious. It seems to me that there are limits to both fair use and the extent of the DMCA safe harbor provisions, and I'm just wondering if you also think there are such limits.

IMO, one of those limits is that the safe harbor protection is out the window if you knowingly and willfully upload the content yourself. At that point, it is my opinion that you are also engaged in activity that would trigger the need to comply with 2257, assuming you and/or your company have a "U.S. nexus," to put it in the language that Chuck Joyner of the FBI used when I interviewed him on the subject a couple years back.

- Q.

This worked for us. We have 3 full ® names and have made bank on people using them in their URLs and using our images . No DMCA required, this is how it should be. Why the fuck should the © owners have to jump through hoops just because some ass clown decides to steal their content or infringe on a name ?

It cost me just $600 per name to ® them and took just 6-8 months for the law office to do the search etc. There is a fast track system ( $$$$$$$) but as long as you have your application in i believe you are covered as long as there is no one using that exact name ?

Besides attacking me, please tell me why it is fundamentally flawed. You need to research reverse passing and false origin claims off under the Lanham Act. I believe that watermarking your content could protect content producers from tubes that publish their content with their TM logo on it. And if the tube site strips the watermark, it may only make their claim stronger.

The TM owner may also have a claim for false origin under the Lanham Act.

I am not saying its a guaranteed winner. What I said was it gives a content owner another weapon in the fight against piracy.

Seeing how your threads/posts seems to support piracy I didnt expect you to like the application of this decision to such actions though.

There is fair use when it comes to TMs but it is more limited than in copyright.

I also think it makes hosts here in the US and abroad more likely to police infringing sites.

YES! FINALLY! PornLaw vs. GideonGallery, real attorney vs. armchair attorney!

Please keep this thread going, we have started construction of the popcorn ball.

http://i29.tinypic.com/wocyg.jpg

NICE !!!!!!!!!!!!!:thumbsup:thumbsup

Good information bro

Wow, this thread died quickly. What happened to GideonGallery? He's usually ready with reams of material to back up his legal interpretations. Come on, GG, don't be shy.

popcorn is going cold:Oh crap

Hey Michael...I applied and got the trademark for Claudia-Marie.Com back in 2007.

Are you saying that I can now forego DMCA and get any of the content taken from Claudia-Marie.Com (which is all watermarked of course) taken down from pirate sites? And if so what is my course of action to do such a thing?

I think we'll see more of these things in future.

He can correct me if I'm wrong, but I think he's saying that, with the trademark behind you, you can file a claim of trademark infringement and pursue damages, rather than the "here's a DMCA notice, please take down my stuff and you'll have no penalty, kissy kissy."

Hire him as your content protection attorney and get to it :)

wow... interesting indeed

Hit them where it hurts...the wallet

Let's talk...I leave for Italy on Monday for 3 weeks but I will be available until then. I think you have my cell number.

What I am saying is that you can go around DMCA and start giving notice to pirate sites where the content is and if they do not take it down you can hit them with a contributory trademark infringement suit instead of a DMCA takedown notice.

says the guy who argued in another thread that the berne convention grants you the right to send DMCA takedown notices to foreign hosts.

the stretch you are trying to argue for would gut the concept of fair use.

so no parody could exist that used watermarked content.



so all that the downfall producers would have to do to again stop all the parodies that were put back was to stamp it with a watermark.

ignoring the substantive difference between what was presented in this case

and ebay win over tiffany

http://www.computerworld.com/s/artic...with_ Tiffany

if you could prove the level of connection between the host and the direct infringer that this case did. You would breach the safe harbor provision anyway.

your conclusion ignores all of that evidence.

i suggest you look at my previous post
i have repeatedly said if you have proof that the site owner is uploading the stuff themselves it infringement.
but that not the level of evidence pornlaw is talking about getting even though this case did produce proof that was within a hairs breath of that level.

this case is not the precedent setter that pornlaw claims it is, in fact it just another example of a proven infringer trying unsuccessfully to hide behind the safe harbor.

ok let see
host get takedown notice
host ignores take down notices
host claims safe harbor protection for content they refused to respond too
judge and jury deny safe harbor protection.


you draw the conclusion that it a game changer allows you to get around the takedown notice responsibility.

what is unclear about the fundamental flaw in your arguement.

Let me see...
Gideon "pussyserver" Gallery draws all of his conclusions from an old case involving vcr's and applies it to the internet.

Then Gideon "totally delusional" Gallery tells Michael Fattorosi (an actual attorney) that he is all wrong for drawing his conclusions from a case INVOLVING THE ACTUAL INTERNET

Insane loner living in his parents basement using a decades old ruling that was before the internet existed VS Respected attorney at law showing a new precedent involving the internet.

Only in the completely insane world of GideonGallery does this make any sense at all.

I warned you gideon...you're playhouse is going to tumble. There is a very good reason that no company with any credibility will buy into any of your "theories" on marketing.
1. They don't work
2. The whole foundation for it is about to become illegal.

Well, ISPs in several countries are now required to log all internet traffic (not because of infringements really, but "terrorism" and other more serious crimes). Further, it is getting easier for copyright holders to subpoena internet traffic info, just like the recent change in the "safe" harbor Sweden. The burden of proof is of course the copyrighters job, but the tools for this will hopefully become easier in the future in most countries, just like what happened in Sweden.

Please, please, please show me where or how the DMCA even applies to trademarks ?

Cite some statutes or cases that hold that the DMCA applies to TMs ?

DMCA applies to copyright issues. There is no Lanham Act Take Down Notice. I wouldnt even need to send a take down notice for a TM infringement claim. I would send a C&D and if the host did not respond I am off the local District Court with my complaint.

The gravamen of my complaint would be that they are using the trademark, ie the watermark on the content, for a commercial use without an assignment of rights - not the actual video content.

And yes, by doing this I can eviscerate your "fair use" defense since I dont even care about the content - you wouldnt even be able to raise it as a defense to a Lanham Act violation. Unless you fit into one of the limited nominative fair use defenses to trademark infringement; (1) The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute); (2)
The user only uses so much of the mark as is necessary for the identification (e.g. the words but not the font or symbol); (3) The user does nothing to suggest sponsorship or endorsement by the trademark holder. You would be SOL.

I can bypass copyright law and go right for the Lanham violations, which means I dont even care if the content is registered with the US Copyright Office. All I need is a federally registered TM and I am good to go.

Thanks Robbie. When you're ready give me a call.

:1orglaugh:1orglaugh:1orglaugh

so a lawyer who claims

using a case where the host actually ignored takedown request as a bases for that arguement.

And doesn't have the common sense to realize that maybe the reason that safe harbor didn't apply was because they didn't meet the requirements for it to apply should be respected.

I understand an idiot who believes copying waynes world in porn is creative could make such a mistake, but good lawyer wouldn't.


btw the RDVR case was like 2 months ago.

so it wasn't me that apply the vcr case to the internet it was the SUPREME COURT OF THE UNITED STATES OF AMERICA.