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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...

Doe v. America Online

Case No. 97-2587, 718 So. 2d 385 (Fourth District Court of Appeal, Fla, October 14, 1998) aff'd. 2001 Fla. Lexis 449 (Fla. March 8, 2001)

Plaintiff's complaint alleged that defendant Russell committed sexual battery on John Doe, at that time an 11 year old male, by engaging him and two others to perform sexual acts with Russell and another, which Russell photographed and videotaped. Plaintiff further alleged that Russell thereafter marketed these tapes by informing people in America Online, Inc. ("AOL") "chat rooms" that such tapes were available for sale.

Plaintiff, Doe's guardian, asserted that because AOL "was on notice" of Russell's use of its chat rooms, it had violated several Florida state statutes prohibiting the sale or distribution of obscene material. Plaintiff also charged AOL with common law negligence.

Following Zeran v. AOL, 129 F.2d 327 (4th Cir. 1997) cert. denied, 118 S.Ct. 2341 (1998), the Florida District Court of Appeal affirmed the lower court's dismissal of plaintiff's complaint against AOL, holding that the claims asserted therein were preempted by Section 230 of the Communications Decency Act ("CDA"). The Court held that the CDA preempts state law claims asserted against an information service provider arising out of the ISP's allegedly improper participation in sale or distribution of obscene material due to its notice that a third party was using the ISP's chat rooms to market such pornographic materials.

In so holding, the Court rejected plaintiff's arguments that tort claims against an information service provider arising out of the ISP's role as a distributor of information survived the enactment of the CDA. As such, the fact that AOL allegedly had notice of the conduct at issue and failed to take appropriate actions in response thereto would still not subject it to liability on the theories advanced in the complaint. In reaching this conclusion, the Court quoted with approval the following passages from Zeran:

The simple fact of notice surely cannot transform one from an original publisher to a distributor in the eyes of the law. To the contrary, once a computer service provider receives notice of a potentially defamatory posting, it is thrust into the role of a traditional publisher. The computer service provider must decide whether to publish, edit, or withdraw the posting. In this respect, Zeran seeks to impose liability on AOL for assuming the role for which § 230 specifically proscribes liability -- the publisher role.

If computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement -- from any party, concerning any message. ... [T]he sheer number of postings on interactive computer services would create an impossible burden in the internet context.

The Court also affirmed the lower court's holding that the CDA preempted state law claims which arose out of events that occurred prior to the enactment of the CDA, but were not actually asserted until after its enactment.

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