It is interesting that the New York Times would publish an article titled “Ads Follow Web Users, and Get More Personal.” See The July 30, 2009 business story.
What is a truly fascinating development here is how web companies are now trying tie legacy data banks of highly personal information to online information in order to figure out how to get consumers to spend more money on products by constantly presenting to them highly focused relevant advertisements based upon their likes, dislikes, socio-economic profile, etc. Couple this with all of the innovative work being done in the field of predictive modeling and you have a prescription for producing something highly useful and beneficial on the one hand, to something that could be abused, or worse yet, used against individuals. If you have ever used Pandora, you will see a good use of predictive modeling.
Having done a great deal of research and work in the area of privacy, I am particularly sensitive to this aggregation of information. We dealt with a number of interesting and complicated issues long before the Internet age, and many of the issues we were researching then are relevant today. Suffice it to say, we each need to be cognizant that the advertisements presented to us are not the same as may be to our neighbor. So the next time you click on an advertisement, think about how you are leaving a breadcrumb trail of interests for the next marketer to exploit.

The Supreme Court in Winter v. Natural Resources Defense Council, — U.S. —-, 129 S.Ct. 365, 374 (2008) held that that the Ninth Circuit’s “possibility” standard in granting preliminary injunctions is too lenient reiterating the standard requires plaintiffs seeking preliminary relief to demonstrate irreparable injury is likely in the absence of an injunction. In the Ninth Circuit, to obtain injunctive relief, a plaintiff must establish (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm absent a preliminary injunction, (3) that the balance of equities tips in favor of issuing an injunction and (4) that an injunction is in the public interest. In the Winter case, the Supreme Court ultimately weighed the public interest factor in favor of the Navy, lifting the limitations imposed on use of “mid-frequency active” sonar during integrated training exercises in the waters off southern California.

Previously in trademark cases, a plaintiff was entitled to a presumption of irreparable harm upon showing a probable success on the merits. See GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1204-05 (9th Cir.2000). However, in Winter, the Supreme Court held that “[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, at 375-76 (emphasis added). A plaintiff is no longer entitled to a presumption of irreparable harm on the ground that it has shown a likelihood of success on the merits. Rather, plaintiff must demonstrate that in the absence of a preliminary injunction, the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered. The mere possibility of some remote future injury would be insufficient under this new test enunciated by the Supreme Court.

A preliminary injunction is an extraordinary remedy never awarded as of right. The court must always balance the competing claims of injury and consider the effect on each party of the granting or withholding of the requested relief. Here, the court has expanded its emphasis upon the public consequences in employing the extraordinary remedy of injunction. Interestingly, the court deemed the Navy’s concerns about the preliminary injunction “speculative” because the Navy had not operated under similar procedures before noting that this is almost always the case when a plaintiff seeks injunctive relief to alter a defendant’s conduct.

It is unclear if the Winter decision overrules the Second Circuit alternative test that a party may obtain injunctive relief if it shows that (1) there are questions so serious, substantial, difficult, and doubtful as to make them fair ground for litigation and thus more deliberate investigation; and (2) the harm that it would suffer is ‘decidedly’ greater than the harm that its adversary would suffer is still valid law. See, Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 58 (2d Cir.1979).

Since the Winter decision there have been a number of district court and appellate court decisions that have considered this “heightened” standard. It appears that the courts are giving the public interest factor additional attention, but with little change in result. If anything, it would seem that the courts will be careful to more fully address this public interest factor in the future and accordingly it should be addressed in a motion for preliminary relief. Because the very essence of trademark law is to protect the consumer from being confused, there is an inherent public interest in every trademark case to prevent a likelihood of consumer confusion.

Starting June 13, 2009 Facebook users can create personalized URLs for their Facebook pages. http://www.facebook.com/username/ where “username” is the name that you register. These personalized URLs are offered on a first-come, first-serve basis. The intention is that “friends” can go directly to your personalized URL.

Because this is just another avenue for infringers to try and steal trademarks from rightful owners, and since the law on this area is developing we are recommending that our clients immediately create accounts on facebook and register their trademarks as personalized URLs. For example, I have registered: http://www.facebook.com/WebTM. There is nothing particularly interesting at my facebook wall, but it is there.

So if you go and try and register your trademark as a personalized URL, and it is taken, Facebook is providing a means to complain by its “Notice of Intellectual Property Infringement (Non-Copyright Claim)”. If someone adopts your trademark as a personal URL on Facebook, report it immediately. Should you require any assistance in dealing with this, please contact me directly.

Welcome to the New WEBTM website. It is a work in process, but here it is.

It is built on exciting new Web 2.0 technology with WordPress as its foundation.