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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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United States v. Thomas

74 F.3d 701 (6th Cir. 1996) cert. denied 117 S. Ct. 74 (1996)

The defendants were charged with violating federal obscenity statutes 18 U.S.C. 1462 and 1465. Defendants, operators of a bulletin board service, were residents of California, where they maintained the computer and modems used to operate their service. The defendants uploaded onto their computer various allegedly obscene pictorial images. Users who wished to access these images were permitted, for free, to view a sample of the offered product. If the user wished to view additional images, he/she was required to submit a signed application and pay a subscription fee. The user thereafter received a password from the defendants, telephoned the defendants' computer, gave the password, and obtained access to the pictorial images stored thereon. Images appeared on the user's computer screen, which could be printed or downloaded. A postal inspector in Tennessee obtained a password from the defendants, and by dialing up the bulletin board, caused it to transmitted allegedly obscene material to his computer in Tennessee. The defendants also sent allegedly obscene videotapes to the inspector in Tennessee. The Sixth Circuit affirmed defendants' conviction, holding that the district court in Tennessee was an appropriate forum for defendants' trial. On appeal, defendants raised a number of challenges to their conviction, including a claim that venue was not proper in the federal district courts of Tennessee. As stated by the court, "venue for federal obscenity prosecutions lies 'in any district from, through or into which' the allegedly obscene material moves." Id., 74 F.3d at 709. The court concluded that defendants, by their actions, had sent material to Tennessee, and thus that venue was appropriate there. Thomas does not address the personal jurisdiction issue faced by defendants in a civil litigation. Rather, as the defendants in Thomas were United States citizens charged with violating Federal (as opposed to state) statutes, any federal court in the land had personal jurisdiction over them. The question was one of venue, i.e. which of the federal courts, under applicable venue rules, was an appropriate forum in which to conduct the trial. The defendants challenged their convictions on a number of additional grounds as well. Of greatest interest to users of the is defendants' contention that the Court, in determining whether the pictorial images were obscene, should utilize the standards of the community, and not Tennessee. In determining whether something is obscene, the Supreme Court has held that the prosecution must meet a three prong test. As stated by the court in Thomas "(1) the average person applying contemporary community standards would find that the work, taken as a whole appeals to the prurient interest (2) it depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The defendants argued that the appropriate community standard for their conduct was that of the , and not Tennessee. The Sixth Circuit rejected this argument, finding that because the defendants had knowingly sent their material into Tennessee by accepting a subscription from a resident of that state, it was appropriate to use the community standard of Tennessee in determining the obscenity of the images in question. This was the standard traditionally applied in federal obscenity prosecutions, that of the community in which the trial takes place. The court did not, however, reach the question of whether such an " community standard" was appropriate in those situations in which the bulletin board operator did not know who was accessing his system i.e. where no prior subscription was received from the user before he/she accessed the bulletin board service. The court also held that defendants' transmission of pictorial images to bulletin board users via telephone and computer constituted the "transportation in interstate ... commerce for the purpose of sale or distribution ... or use [of] a facility or means of interstate commerce for the purpose of transporting obscene material in interstate ... commerce ..." within the meaning of 18 U.S.C. sec. 1465.

The full text of this decision can be found on a website maintained by the Emory School of Law.

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