Counterfeit Airbags Present Serious Safety Risk

National Highway Traffic Safety Administration (NHTSA) and Immigration and Customs Enforcement (ICE) officials today warned consumers about counterfeit airbags made at overseas manufacturers and installed in cars throughout the U.S. 

The counterfeit airbags have been found in more than 75 different makes and models, both domestic and internationally-made cars, and could affect thousands of individuals.

Earlier this year ICE arrested and convicted a Chinese counterfeiter who was found with nine different brands of airbags. And just this year have confiscated more than 2,500 fake airbags.

Consumers are at risk if:

•   They have had their car airbag replaced in the last three years, at a repair shop not associated with a new car dealership;

•   Purchased a used car that may have had its original airbag replaced;

•   Own a car titled branded salvage, rebuilt or reconstructed;

•   Got a "too good to be true" deal for airbag replacement; or

•   Purchased their airbag from eBay, Craigslist or other non-certified outlet.

Because the faulty airbags are not the fault of car manufacturers or dealers, this is not a mandatory recall and consumers must pay out of pocket to replace the airbag.

"They look like the real thing and unfortunately consumers are not in a position to figure out if they have a fake or a real airbag and they certainly wouldn't be in a position to be able to replace their own airbag," David Strickland, NHTSA administrator said.

Officials urge anyone who has suspicions about their airbags to take their car to an expert for testing and replacement.

Jerk.com: Invitation to Slander or Free Speech?

While online defamation has existed since the Internet was first made accessible as a public computer network, the threat presented by such libelous content has been exacerbated by the advance of the Internet as an everyday reporting and social media tool.

The rise of websites such as Jerk.com, which openly encourage readers to post defamatory content about both public and private individuals, has raised very thorny legal and socio-political issues about defamation and bullying, and are testing the outer limits of free speech in an online world.  

Specifically, Jerk.com call itself:  "Public Service personal news." It "reports" not only on public figures engaging in public activity (e.g., WIll Smith slapping an overly affectionate reporter); it also reports on private individuals, allowing writers to call them "home wreckers," "army sluts" who "sleep around with married men," "racists," "meth-heads," "drunks," and the like.

The Legal Difficulties With Proving Online Defamation

Much of the difficulty that surrounds successfully winning an online defamation case is brought about because the plaintiff must first prove who the publisher or writer of the statement is and, secondly, that the statements were factually and objectively false and written with the intention of causing damage, and not just reflecting a subjective opinion.

Generally, the elements that must be proved to establish defamation are a publication to one other than the person defamed; a false statement of fact that is understood as being of and concerning the plaintiff; and tending to harm the reputation of plaintiff.  If the plaintiff is a public figure, he or she must also prove actual malice.

Therefore, since truth is an absolute defense to any defamation case, a plaintiff who purports to have been defamed and injured opens himself up to a wide berth of discovery into his otherwise private conduct.

Further, identifying a specific individual that has posted a defamatory comment online can prove difficult.  It is possible to geolocate a computer that was used to publish a statement or post content online through the use of geolocation.

However, with Internet access offered anonymously in Internet cafes, libraries, businesses, and other public areas, this can make it difficult to find the true source of the illegal content.

Legislative Solutions

The Communications Decency Act of 1996 (CDA) was created in a bid to combat indecent as well as defamatory content found on websites and online publications.

Section 230 of the CDA attempts to legislatively address an Internet Service Provider's liability to content that is stored on its servers.  Although it does not specifically address all possible circumstances, it does broadly provide that an ISP is not legally held responsible for the information published by their users unless and until they are informed of any specific infringement; at that point, the ISP should act to remove the content or face legal action themselves.

The Communications Decency Act of 1996 can be viewed in full at the FCC website: http://www.fcc.gov/Reports/tcom1996.txt

Some commentators have suggested that the online world has evolved dramatically since the CDA was passed in 1996, and that it is due for an overhaul.  What do you think?

GoDaddy Attacked By Pro-Piracy Hacker(?)

Yesterday, GoDaddy, one of the Internet's largest webhosts and registrars, was believed to have been attacked by an anonymous cyber-terrorist purportedly because of the Internet company's initial support for the Stop Online Piracy Act ("SOPA").

Our readers will recall that SOPA became a hot topic earlier this year, but the controversial anti-piracy legislation was effectively tabled due to vocal online protests.

It would appear from more recent reports that GoDaddy's problems may have been of the more internal variety, and not the work of pro-piracy hackers.

Legal Threats Over Use of Music at Political Events Escalate

Music has been played throughout American history during political events, to rouse emotion and stir patriotism.

However, as intellectual property laws evolve along with the culture of politics, several issues have risen to the forefront along with the ongoing rancor between the permanent residents of Hollywood/Nashville and Washington D.C.  As we have previously discussed, Presidential candidates are frequent targets of musicians' ire for using their songs at political rallies.

Most recently, R.E.M. objected to Fox News' use of "Losing My Religion" during coverage of the 2012 Democratic National Convention.  The pro-Democratic band argues that the use of the song falsely conveyed that it agreed with the conservative networks' critique of the DNC as secularist, stating:

REM in Concert / Wikimedia Commons / Flickr user Stark (Stefano Andreoli)

"R.E.M.'s "Losing My Religion" was used in the Fox News coverage of the Democratic National Convention last night. R.E.M. today, through its music publisher, Warner-Tamerlane Music, demanded that Fox News cease and desist from continuing its unlicensed and unauthorized use of the song." 

Michael Stipe added, "We have little or no respect for their puff adder brand of reportage. Our music does not belong there."

The intellectual property issues break down along relatively clear legal lines.

Copyright:  A songwriter possesses copyright to the lyrics and melody of a song. Additionally, performers of the song possess independent copyrights in their recordings of those songs. Both of these copyrights are licensed to the public through performance rights organizations, such as ASCAP and BMI. Most large public venues, such as sports arenas and convention halls, purchase "blanket" licenses from ASCAP and BMI, that permit them to publicly perform any of the songs contained in their catalogs.  (The songwriters and performers each get a cut of the revenue collected through a separate agreement with the performance rights organizations).

For example, at a baseball game, you may hear the choruses of Queen's "We Will Rock You," Twisted Sisters' "We're Not Gonna Take It" and other rousing anthems repeatedly.  The stadium or sports arena has typically paid a recurring license fee to publicly perform these and other songs within their arenas during events, without many restrictions. Twisted Sister then regularly gets a check from ASCAP/BMI.

However, occasionally, there is a technical copyright violation. For example, if the baseball game is broadcast on national television and the song is heard in the background, the musicians may argue that the license agreement did not cover the "synchronization rights" required for television broadcast (although other license agreements may cover this contingency).

Trademark/Right of Publicity/Implied Endorsement:  In the context of political conventions that occur within the licensed arenas, however, things get trickier.  While a public arena may possess a paid-up license to publicly perform the music under their ASCAP/BMI terms without violating songwriters' or performers' copyrights, some musicians object to their songs' use during political events on separate legal grounds.  Specifically, they argue that the politicians' use of the songs during political events in those arenas nonetheless falsely implies endorsement and sponsorship.

As previously noted, there have been a number of lawsuits filed on these grounds against candidates in both political parties.

ASCAP has issued a helpful summary of the law warning politicians to be aware that their public performance licenses do NOT guard against the Trademark/Right of Publicity/Implied Endorsement theories.

It is this authors' personal view that such alternative theories may have legal merit, depending on the facts.

For example, let's assume that a musician can prove in court that consumers (a/k/a voters) recognize a particular song as a form of source identification.

That is, if we assume that a performer can prove that the public immediately perceives a song as having direct associations with the composer and/or the band that performed the song (especially ones that are politically active and highly visible), then the song may be able to function as a trademark.

Further, if a plaintiff can then prove that a politicians' use of that song is likely to confuse a sufficient percentage of the public into believing that the songwriter/band has endorsed that politician or his/her political party's views, then that plaintiff can demonstrate all that he needs to satisfy a court that there is a likelihood of confusion and irreparable harm to his brand.

On the other hand, if the public is savvy enough to assume that the use of a song during a political event does not necessarily reflect the endorsement or approval of the songs' writers or performers and is not likely to be confused, the Plaintiff would not be able to satisfy his burden of proof, and would lose in court.

Finally, the defendant would presumably assert a "fair use" defense, claiming that the First Amendment's guarantee of free speech immunizes it from the accused intellectual property violations.  

Such a defense would probably fizzle out, if the plaintiff could demonstrate palpable harm from consumer confusion as described above.

Both Sides Declare Victory in Red Sole Battle: But Did the Public Lose?

On Wednesday, the United States Court of Appeals for the Second Circuit issued a detailed written opinion both affirming and reversing portions of the District Court's opinion in the epic Christian Louboutin v. Yves St. Laurent fight over red soled shoes.

To recap, Louboutin sued YSL for selling monochromatic red shoes, which included the use of red soles. Louboutin owns a registered federal trademark covering the use of red soles on footwear.

The Second Circuit agreed that Louboutin had demonstrated that it had acquired distinctiveness for the use of red soled shoes, with a notable exception: The Court held that Louboutin had NOT demonstrated distinctiveness was acquired in monochromatic (all red) red soled shoes.

The Second Circuit essentially dismissed several examples of Louboutin red/red shoes as essentially too few to demonstrate secondary meaning, and ordered that Louboutin's trademark be "rectified" to include this novel limitation.

As an initial matter, the Lanham Act empowers "the Court" to correct registrations to correct errors.  It is not clear that "the Court" contemplated by the federal statute was intended to include an Appeals Court selectively amending trademarks as it sees fit, unless the District Court had made a factual finding that such a limitation is warranted and supported by the record.

Here, the District Court had made no such finding and had dismissed the case on broader grounds, which the Appeals Court did not need to reach. Therefore, there is some question as to whether the Circuit Court even had the power it chose to exercise to conveniently dispose of the case.

Second, the Appeals Court's backhanded dismissal of Louboutin's red soled shoe trademark as used on monochromatic shoes was belied by the record which demonstrated that Louboutin had, indeed, used red soles on monochromatic shoes, and that there was even evidence of confusion in Louboutin's consumer survey.  The Circuit Court just dismissed that evidence out of hand, but not very persuasively.

Therefore, the Second Circuit's reasoning reads like an example of "bad facts making bad law." The end result is neither satisfying logically or legally, but disposed of a tough case with an equitable result.

In the end, it is my personal opinion that YSL should never have been sued to begin with, until and unless Louboutin had acquired an incontestable trademark that had been successfully asserted against other, more willful targets first.

If that clear record of a tested trademark had been before the Court, it would have been much more difficult to let YSL walk away unscathed, as it did.

So, where does that leave the public?  Well, the Second Circuit clarified that color can serve as a trademark in fashion, just as in other areas of law, and rejected the lower court's unprecedented "per se" bar against the use of color in fashion.  That, in my personal opinion, was a good start.

It is good law that color can and does function as a trademark in fashion no less than in other industries.

However, the remainder of the opinion did little to add value to the body of precedent on aesthetic functionality, or what level of secondary meaning is necessary to protect color as a trademark.  

So, in the end, YSL walked away unscathed, Louboutin kept his (modified) trademark, and we are left with a rule of law that suggests that brand owners' lawyers should take better care selecting their litigation targets.