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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 of Georgia, et al. v. Zell Miller, et al.

977 F.Supp.1228 (N.D. Ga., 1997)

Plaintiffs brought suit to challenge the constitutionality of a statute passed by the State of Georgia (O.C.G.A. § 16-9-93.1) which, inter alia, makes it a crime for:

any person ... knowingly to transmit any data through a computer network ... for the purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic information if such data uses any individual name ... to falsely identify the person ...

and for

any person ... knowingly to transmit any data through a computer network ... if such data uses any ... trade name, registered trademark, logo, legal or official seal, or copyrighted symbol ... which would falsely state or imply that such person ... has permission or is legally authorized to use [it] for such purpose when such permission or authorization has not been obtained.

Plaintiffs objected to this statute because they believed it "impos[ed] unconstitutional content-based restrictions on their right to communicate anonymously and pseudonymously over the Internet ..." when, among other things, contacting home pages of others, participating in chat room conversations, or posting to various usenet groups. Such was arguably prohibited by the statute, which made it a crime to "falsely identify" oneself when transmitting electronic data.

Plaintiffs also objected to the scope of the statute's prohibition on the usage of trademarks and logos in non-commercial hyperlinks.

Agreeing with the plaintiffs, the court determined that the "plaintiffs are likely to prove that the statute imposes content-based restrictions which are not narrowly tailored to achieve the state's purported compelling interest ... [and] that the statute is overbroad and void for vagueness." Accordingly, the court enjoined Georgia from enforcing the statute.

The court held that the statute was not narrowly tailored to achieve defendants' purpose of fraud prevention. Said the court:

[T]he statute is not narrowly tailored to achieve that end and instead sweeps innocent, protected speech within its scope. Specifically, by its plain language the criminal prohibition applies regardless of whether a speaker has any intent to deceive or whether deception actually occurs. Therefore, it could apply to a wide range of transmissions which falsely identify the sender, but are not fraudulent within the specific meaning of the criminal code.

The court further held that the statute's prohibitions were overbroad. "The court concludes that the statute was not drafted with the precision necessary for laws regulating speech. On its fact, the Act prohibits such protected speech as the use of false identification to avoid social ostracism, to prevent discrimination and harassment, and to protect privacy, as well as the use of trade names or logos in non-commercial educational speech, news and commentary -- a prohibition with well-recognized first amendment problems." The court's conclusion was buttressed by numerous existing statutes which permitted the regulation of the very activities sought to be covered by the statute at issue, including improper fraudulent conduct, and trademark infringement.

Lastly, of particular interest is the court's determination that Georgia had articulated no compelling state interest that would justify the statute's restriction on the use of trademarks and logos in hyperlinks. Said the court:

A fair reading of the clause, as written, is that it prohibits the current use of web page links. The linking function requires publishers of web pages to include symbols designating other web pages which may be of interest to a user. This means that an entity or person's seal may appear on hundreds or thousands of other web pages, just for the purpose of enabling the linking system. The appearance of the seal, although completely innocuous, would definitely 'imply' to many users that permission for use had been obtained. Defendants have articulated no compelling state interest that would be furthered by restricting the linking function in this way.

Commentators have suggested that this passage of the Court's decision creates a First Amendment right to utilize the trademarks of another in non-commercial hyperlinks. The validity of this proposition is sure to be tested in subsequent court proceedings.

The full text of this decision can be found on a web site maintaind by David Loundy.

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