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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...

Rare 1 Corp. v. Moshe Zwiebel Diamond Corp.

Index No. 117595/05 (Sup. Ct. N.Y. Co., July 5, 2006)

New York Applies One Year Statute Of Limitations To Defamatory Posts

Court holds that the 'single publication' rule applies to allegedly defamatory statements posted about plaintiff on a subscription web site accessible only by the site's members.  As those statements were posted over one year prior to the commencement of plaintiff's action charging defendant with defamation as a result of their publication, the Court held such claims barred by the applicable statute of limitations, and dismissed plaintiff's suit. 

Defendant Posts Allegedly Defamatory Statement On Members Only Trade Website

Both plaintiff and defendant are engaged in the jewelry business.  The complaint alleged that in or about May 2002, defendant posted a defamatory statement about plaintiff on a website operated by Polygon.  Polygon operates a fee-based service, accessible only by its members.  On its website, members can, among other things, post comments about the businesses of others.  Finding defendant's posting objectionable, in or about January 2006, plaintiff commenced this suit for defamation.

Under 'Single Publication' Rule, Limitations Period For Defamation Claim Runs From Date Comment Is First Posted

Defendant moved to dismiss, arguing the claim was barred by the one-year statute of limitations applicable to defamation claims in New York.  The Court agreed, and dismissed plaintiff's action.

In so doing, the Court rejected plaintiff's argument that the posting at issue was republished each time a member accessed information about plaintiff.  As such, urged the plaintiff, the statute began to run anew from each such republication, rendering the complaint timely. 

New York follows the 'single publication' rule.  "Under that rule, the single publication of a defamatory comment, regardless of the number of copies the comment appears in or the range of the publication's distribution, constitutes only one publication and gives rise to only one cause of action."  New York courts recognized the applicability of this rule to online publications in Firth v. State of New York, 98 NY 2d 365 (2002).  If the defamatory statement is republished, however, such as by posting it on a second website, the limitation period begins anew.

The Court held that under the 'single publication' rule the statute of limitations began to run when the statement at issue was first posted to the Polygon website, in May 2002.  As this action was not commenced until January 2006, it was barred by the one year statute applicable to such actions.  The accessing of this posting by a member did not constitute a republication, or retrigger the statutory period.

The same result would hold, noted the Court, even if it accepted plaintiff's argument that the publication at issue was akin to the issuance of an on-demand credit report by a credit reporting agency.  There, too, the 'single publication' rule required defamation claims to be commenced within one year of the report's the report's initial publication.

New York courts, applying the single publication rule, have found that the continued dissemination of allegedly defamatory statements is not a republication giving rise to a new cause of action, in particular where, as here, the subsequent reports were qualitatively identical and published by the original libeler (See, Ferber, 1996 WL 46874 at *6 (finding that defendant's continued reporting to credit bureaus falls within the single publication rule). 

Gold v. Berkin, 2001 WL 121940 at *4 (SDNY 2001).

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