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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...

Hyperlink At Your Own Risk

One of the Internet's greatest attributes is the hyperlink, which permits the "surfing" for which the Internet is famous. By clicking the mouse on a hyperlink, the user is transferred from one Web site to another. Typically, the linked sites are created by different individuals. Hyperlinks are found on virtually every Web site, including search engines, where they permit the user to assemble and review a number of sites that relate to a particular topic.

The law concerning the ability to use such links is in its infancy, with no definitive precedent. But after examining three law suits that have challenged uses of hyperlinks, one thing is clear -- the cautious operator of a commercial Web site will either seek permission before linking to the site of another or only use links which transport the user to the home page of another's site.

Hyperlinks are inserted into a Web site by the site's owner, who can create the link without the assistance of the owner of the linked-to site. Under standard "netiquette," such links are added without the permission of the linked site. Such is the case, in part, because the link benefits the linked site by bringing it additional viewers.

Recently, however, a series of lawsuits have drawn into doubt the continued viability of this practice. These suits are driven by a number of concerns, principal among them is the advertising potential of the Web. Advertisers are willing to post ads based on the traffic and number of viewers attracted to a site.

Because a site's home page is generally the page most frequently visited, it is here that the most profitable ads are likely to be found. Linking can be used to transfer a user to pages deep within a site that contain content of interest, by-passing the home page of the linked site on which advertisements appear. The use of links in this manner threatens to dilute the advertising revenue generated by a site.

Linking can also be used to make the content of the linked site appear on the site on which the link is located permitting a site owner to profit from the content on a site he did not create, using it to draw traffic and advertisers to his site.

Some Web site owners also object to linking for the same reasons that traditional publishers, authors or owners of trademarks object to the unauthorized use of their works, such as dilution of trademarks, misappropriation or inappropriate display of their work, and other traditional infringement concerns. Collectively, these concerns have given rise to the challenges to 'linking without permission' advanced in the cases discussed below.

Scotland Case

The first court decision to address this issue was rendered by the Court of Session in Edinburgh, Scotland in Shetland Times Ltd. v. Dr. Jonathan Wills and Zetnews Ltd., (Lord Hamilton, J.)(Oct. 24, 1996).(2) The court issued an "interim interdict" (a Scottish term for a temporary restraint) barring the defenders from creating hyperlinks that linked their site to that of the Shetland Times Ltd. (the pursuer), without the permission of the Shetland Times.

The pursuer owns and publishes a newspaper titled The Shetland Times newspaper. Versions of the paper appear both in print and on a Web site operated by the pursuer. The defenders own and/or operate a Web site on which they publish a news reporting service entitled The Shetland News.

Defenders reproduced verbatim a number of headlines appearing in The Shetland Times. These headlines were hyperlinked to the pursuer's Web site. Clicking on the headline took the reader directly to the internal pages on the pursuer's site on which the related story was found. As such, stated the court, "access to the pursuers' items ... can be obtained by by-passing the pursuers' front page and accordingly missing any advertising material which may appear on it."

The pursuer sought an interim interdict, directing defenders to cease this practice, which the pursuer claimed violated '' 7 and 20 of the Copyright Designs and Patents Act of 1988. Concluding that the pursuer had "a prima facie case that the incorporation by the defenders in their Web site of the headlines provided at the pursuers' Web site constitutes an infringement ...," the court issued an interim interdict, temporarily directing that such linking be terminated, subject to further litigation on the subject.

Washington Post

The ability to link without permission is also the subject of a suit in the Southern District of New York, The Washington Post Company, et al. v. Total News, Inc.(3) In this case, the challenged links did not transport the user into another's site. Instead, the link effectively transported content from the linked site onto the site containing the link.

The plaintiffs each own famous trademarks under which they publish and create copyrighted news stories in various forms, including newspapers such as The Washington Post, magazines such as Time and Sports Illustrated, and television news programs, such as CNN Cable News Network. Each plaintiff operates a Web site which contains such copyrighted stories and trademarks. Plaintiffs derive advertising revenue as a result of the operation of their sites, and the number of users they attract.

Defendants operated a site on which a user could view articles and other content from plaintiffs' sites, surrounded by advertisements placed on the site by defendants and from which they profited.

Defendants were able to achieve this result by utilizing "frame" technology. Frame technology permits the division of a Web page into a number of separate sections or frames, each of which appears simultaneously on the user's screen and independently displays different images or content.

As alleged in plaintiffs' complaint, defendants, within one frame of their site, featured links to the plaintiffs' Web sites created without plaintiffs' permission. Clicking on the link caused pages from plaintiffs' sites to appear within this frame of defendants' site.

The other frames on defendants' site were filled predominantly with advertising, presumably supported by the traffic created by the ability to link to the various plaintiffs' sites. (According to the complaint, these frames contained little or no substantive content created by defendants). These additional frames containing advertising, however, did not appear on the plaintiffs' sites.

The links used in this case did not transport the user from defendants' site to those of the plaintiffs. Instead, they effectively transported and incorporated content from plaintiffs' site into that of the defendants. Defendants profited from this content by their receipt of the revenue generated by the advertisements appearing on their site.

Calling defendants' site "parasitic,"(4) plaintiffs sued, alleging that such unauthorized hyperlinking constituted misappropriation, unfair competition, trademark dilution and infringement, and false designation of origin.

The parties recently agreed to settle pursuant to an agreement submitted to the court for its approval. Under the settlement, the defendants agreed to stop linking plaintiffs' sites into a frame located on defendants' site, or to otherwise "directly or indirectly cause any plaintiff's Web site to appear on a user's computer screen with any material (e.g. URL, text, graphics, pop-up window, audio or other) supplied by or associated with defendants or any third-party, such as an advertiser...".(5)

The parties left unresolved the issue of whether defendants had the right, without permission, to create a hyperlink that transported the user from defendants' site to the sites created by plaintiffs. Under the settlement, plaintiffs granted defendants permission to create such links. If such permission was revoked, the parties agreed that defendants could litigate their rights to create such hyperlinks without plaintiffs' consent.

The next development in this area is likely to come in a suit in the U.S. District Court for the Central District of California entitled Ticketmaster Corporation v. Microsoft Corporation.(6)

Ticketmaster sells tickets to entertainment events at various arenas and other venues throughout the U.S., and operates a Web site offering listings of upcoming live events. Once can purchase tickets on-line or via phone. Microsoft operates a Web site at seattle.sidewalk.com commonly known as a "city guide," which features information about Seattle, including information concerning upcoming live entertainment events.

For those interested in purchasing tickets or obtaining more detailed information concerning ticket availability, a hyperlink was supplied by Microsoft, which took viewers to Ticketmaster's Web site. These links were added without Ticketmaster's approval.

Unlike the links in The Washington Post case, these links transported the viewer to the Ticketmaster site. But they bypassed the home page (and any advertising that appeared thereon), and took the user directly to that portion of Ticketmaster's site which contains listings about particular venues. Once linked, the user saw the Ticketmaster "URL" in his browser, indicating that the user was at the Ticketmaster site.

In its Complaint, Ticketmaster claims that: "by accessing Ticketmaster's live event information and services without Ticketmaster's approval, and by prominently offering it as a service to their users, Microsoft is feathering its own nest at Ticketmaster's expense. It is, in effect, committing electronic piracy. In this narrow corridor of cyberspace, Ticketmaster must maintain control of the manner in which others utilize and profit from its proprietary services, or face the prospect of a feeding frenzy diluting its content."(7)

Ticketmaster has charged that Microsoft's conduct runs afoul of the anti-dilution and infringement provisions of the Lanham Act, as well as various provisions of California State Law. At present, Ticketmaster has blocked links created by Microsoft on its "seattle.sidewalk.com" site from reaching Ticketmaster's Web site.

As stated above, the law in this area is in its infancy, with no definitive precedent. The willingness of Web site owners to challenge in court hyperlinks created without their permission, however, throws into serious doubt the continued unfettered use of hyperlinks, particularly when placed on or linking to commercial sites deriving revenue from advertisements.

To date, no challenge has been raised to a link which, without using a logo or other image, simply transports the user from one site to the home page of another. Commentators who have analyzed this issue have concluded that such links are most likely non-actionable under applicable copyright or trademark law.(8)

Links which transport a user to places in a site other than a home page, or effectively incorporate the content of one site into the frame of another, present different issues. Such conduct may potentially subject the party creating the link to trademark or copyright infringement liability. Certainly, a lawsuit advancing such claims is a distinct possibility.

In such situations it is prudent for commercial site operators to consider obtaining permission from the site they are linking to before creating the link. At a minimum, until this issue is resolved, the cautious Web master will only use a link that truly transports the user to the home page of the linked site, whose "URL" should appear on the user's browser after the link is completed.

On the flip side, Web site owners disturbed by connections made to their site without their authorization can communicate with the creator of the link and either request that the link be discontinued, citing the cases discussed above and the various legal theories advanced therein, or request that a license be obtained permitting such linking. Alternatively, the links can be blocked.

In either case, Web masters are well advised to proceed cautiously in this developing area.

(1)Martin H. Samson is a Partner in the law firm of Phillips Nizer Benjamin Krim & Ballon LLP who specializes in civil litigation.

(2)The Court of Session's October 24, 1996 decision in Shetland Times Ltd. v. Dr. Jonathan Wills and Zetnews Ltd. (Lord Hamilton, J.) can be found on the Internet at http://www.shetland-news.co.uk/opinion.html.

(3)The Washington Post Company, et al. v. Total News, Inc. et al., 97 Civ. 1190 (PKL) (S.D.N.Y.).

(4)The Washington Post Company, et al. v. Total News, Inc. et al., 97 Civ. 1190 (PKL) (S.D.N.Y.), Complaint, par. 8.

(5)The Washington Post Company, et al. v. Total News, Inc., et al., 97 Civ. 1190 (PKL) (S.D.N.Y.), Stipulation and Order of Settlement and Dismissal, par. 3.

(6)Ticketmaster Corporation v. Microsoft Corporation, Civ. No. 97-3055 (DDP) (C.D. Cal.).

(7)Ticketmaster Corporation v. Microsoft Corporation, Civ. No. 97-3055 (DDP) (C.D. Cal.), Complaint, par. 6.

(8)See e.g. Dangerous Liaisons: The Legal Risks of Linking Web Sites, Raysman and Brown, N.Y.L.J. April 8, 1997; Frame Liability Clouds the Internet's Future, Freeling and Levi, N.Y.L.J. May 19, 1997.

Reprinted with permission from The New York Law Journal, © 1997, all rights reserved.

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