Good Things Also Happened Yesterday
Largely unnoticed (except by Eric Goldman) in the parade of pontification yesterday about Grokster and BrandX was a very nice decision by the Second Circuit about trademark “use in commerce.” The decision is 1-800 Contacts, Inc. v. WhenU.com, Inc, 04-0026-cv(L), 2d Cir. June 27, 2005.
Although, as Eric points out, there are some strange things in this opinion (most notably its attempts to avoid dealing with the legality of search engine keyword sales generally), the bottom line is truly commonsensical and laudable: listing a keyword in a directory that the public doesn't see is not “use in commerce” of a trademark for purposes of an infringement claim.
There's also some nice language in the opinion about the pop-up ads triggered by WhenU's software. The court understands that these ads don't alter or affect the underlying web site at all.
This opinion is a good thing to have around, because several states have taken to calling things “spyware” that are simply keyword-triggered-applications. At least from now on we can put a stop to the ridiculous argument that listing a company's name in a set of keywords is in itself “use in commerce” of a trademark that can form the basis of an infringement claim.
Another very important good thing that happened yesterday: CDT proudly unveiled its Congressional Research Report database. (Post story is here.) This is a huge, life-affirming event, made possible by the hard work of CDT staffer Joshua Ruihley.
These very useful CRS reports are usually hidden from public view unless a member of Congress releases them. Now everyone can see them, and everyone can add to the collection. Great news.