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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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American Civil Liberties Union, et al. v. Gary Johnson, et al.

4 F.Supp.2d 1029, No. Civ-474 LH/DJS, 1998 U.S. Dist. Lexis 9849 (D. N.M., June 30, 1998) affirmed, 194 F.3d 1149 (10th Cir. 1999)

In this case, the court issued a preliminary injunction enjoining enforcement of a New Mexico statute which prohibited the dissemination by computer to persons under 18 years of age of information "harmful to [] minor[s]", or which "depicts actual or simulated nudity, sexual intercourse or any other sexual conduct." The statute, Section 1(A), 1998 New Mexico Laws, Chapter 64 to be codified at N.M. Stat. Ann. §30-37-3.2(A), made the dissemination of such information a crime punishable by up to one year in jail, a fine of up to $1000, or both. The statute's definition of dissemination by computer encompassed e-mail, list-serve communications and maintenance of a website. Plaintiffs utilized these devices to address a number of subjects within the statute's purview, including obstetrics, gynecology, sexual health, art, poetry and sexual abuse. Plaintiffs argued that the New Mexico statute violated their right to free speech under the First Amendment. They also charged that the statute, by regulating "offending" Internet activity both inside and outside of New Mexico, violated the Commerce Clause of the United States Constitution. The Court agreed, and enjoined enforcement of the statute. The statute violated the First Amendment because "it effectively bans speech that is constitutionally protected for adults," is overbroad, does not materially advance a compelling state interest, and "interferes with the rights of minors to access ... material that to them is protected by the First Amendment." The statute violates the Commerce Clause because it regulates conduct occurring wholly outside New Mexico, and places an undue and unreasonable burden on interstate and foreign commerce. Defendants argued that the statute passed constitutional muster because it contained provisions that enabled content providers who undertook one of several proscribed methods of restricting minors' access to their information (such as rating the site, or requiring credit card information) to avoid prosecution. The court disagreed, finding that these defenses were, for all practical matters, unavailable to the majority of content providers.

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