Thursday, August 25, 2005

Fourth Circuit allows typosquatting where no likelihood of confusion exists

In Lamparello v. Falwell, No. 04-2011, 04-2122 (4th Cir. August 24, 2005) (PDF), a three-judge panel of the Fourth Circuit reversed an order enjoining the plaintiff from maintaining his gripe website critical of Reverend Jerry Falwell where there is no likelihood of confusion between the parties' websites.

Reverend Jerry Falwell operates a web site at "www.falwell.com" to advance his religious and political viewpoints. Falwell owns the trademarks "Falwell" and "Jerry Falwell." Lamparello, a critic of Falwell's views, operates a "gripe" site at "www.fallwell.com" (with two-L's). Falwell sent cease and desist letters to Lamparello, and Lamparello filed suit seeking a declaratory judgment of noninfringement. Falwell counter-claimed, alleging trademark infringement under 15 U.S.C. § 1114 (2000), false designation of origin under 15 U.S.C. § 1125(a), unfair competition under 15 U.S.C. § 1126 and the common law of Virginia, and cybersquatting under 15 U.S.C. § 1125(d). The district court granted summary judgment to Falwell, enjoined Lamparello from using Falwell’s mark at www.fallwell.com, and required Lamparello to transfer the domain name to Falwell.

On appeal, the Fourth Circuit reversed. The infringment and false designation claims were properly dismissed because "[a]fter even a quick glance at the content of the website ... no one seeking Reverend Falwell's guidance would be misled by the domain name www.fallwell.com into believing that Reverend Falwell authorized the content of that website." In so ruling, the court refused to apply the "initial interest confusion" doctrine--a "relatively new and sporadically applied doctrine" holding that "the Lanham Act forbids a competitor from luring potential customers away from a producer by initially passing off its goods as those of the producer’s, even if confusion as to the source of the goods is dispelled by the time any sales are consummated." The court noted that "we have never adopted the initial interest confusion theory; rather, we have followed a very different mode of analysis, requiring courts to determine whether a likelihood of confusion exists by "examin[ing] the allegedly infringing use in the context in which it is seen by the ordinary consumer." The court found the doctrine inapplicable to gripe sites because "[the]critical element — use of another firm’s mark to capture the markholder’s customers and profits — simply does not exist when the alleged infringer establishes a gripe site that criticizes the markholder."

The cybersquatting claim failed because "Lamparello has not evidenced a bad faith intent to profit" from his website.

Tuesday, August 23, 2005

Computers in the classrooms, 10 years later

Charleston Daily Mail: Back in the early 1990s, then-Gov. Gaston Caperton wanted to put a computer in every classroom.

10 years later, many of the same computers are still there. Try configuring a wi-fi router on Windows 95, and you'll have some idea of what our schools are dealing with to keep pace with technology.

Slashdot: The Future of Technology in Schools. "The Milwaukee Journal-Sentinel is running parts one and two of a three-part series dealing with the future of technology in America's schools. Part one asks whether technology in schools is merely a fad or, as some may argue, a necessity in today's technology-driven society. It raises some interesting points, such as the contrasting the wide availability of computers in schools to the generally limited use among students. Part two goes in-depth about the technology's cost, citing the dependence of grants that are disappearing and the effects of reducing technology staff. For part three you will have to tune in the the Milwaukee Journal-Sentinel tomorrow."

Thursday, August 18, 2005

Blogger for Word

Blogger for Word "is a free add-in for Microsoft Word that lets you save a Word document as a post to your Blogger blog with just a few clicks, and without even opening up a browser. Blogger for Word makes it even easier to express yourself online, save your documents to the web, and edit your work both online and off."

The add-in requires Windows 2000 or higher and Word 2000 or higher.

Wednesday, August 17, 2005

25 Years of the Flying WV

My friend and former classmate April Kaull has this story and video at the State Journal's website that offers a short history of the now-famous "flying WV" logo.

As a side note, you know folks in Morgantown are really gearing up for Mountaineer football when they're tackling emus in the streets.

And as a sidenote to the sidenote, wouldn't it have been nice if the emu story would have told us why an emu was running around the campus?

Tuesday, August 16, 2005

Fourth Circuit finds no independent claim of contribution under W.Va. law

In Lombard Canada, Ltd. v. Johnson, No. 03-1056 (4th Cir., August 5, 2005) (PDF), the Fourth Circuit reversed a jury verdict in a contribution claim by one joint tortfeasor against another, holding that the right of contribution among joint tortfeasors does not exist as an independent claim between tortfeasors under West Virginia law.

The case is easier to understand when you know the facts. The plaintiff's subrogee was a trucking company that was hauling an oversized load down I-81. Their load was very tall and in danger of hitting overpasses. As required by law, they obtained a permit and employed an escort service, defendant Johnson, to lead the way and to make sure their oversized load had adequate clearance. The permit stated that the trucking company was to exit the interestate at a certain point to avoid a low overpass. Somehow, this did not occur, communication between the escort and the hauler broke down and the oversized load smacked into an overpass, causing $222,486.71 in damage.

By statute, B & D, as the operator and permit holder, was strictly liable for any property damages caused by deviation from the permit, regardless of its degree of fault. (W.Va. Code § 17C-17-13). It quickly settled out of court with the State of West Virginia (who owned the overpass) for $210,000. Then, it sued Mr. Johnson claiming he was partially (or totally) to blame.

The case went to trial and the jury returned a verdict placing 75% of the fault on the trucking company and 25% on the escort. The plaintiff appealed, and the Fourth Circuit certified the following question to the Supreme Court of Appeals of West Virginia:
Does B & D Lalonde Trucking, a tortfeasor who was strictly liable to the State and who settled this liability before suit by obtaining a release from “all claims whatsoever which could arise from the damages or any other damages of [the State] which could be based on the incident,” have a cause of action for contribution under West Virginia law against Mark Johnson, whose negligence contributed to the State's injury?

The West Virginia Supreme Court answered
"Lombard Canada, as the settling party, is not permitted to assert an inchoate right of contribution against an additional tortfeasor through an independent cause of action. . . . Absent the critical procedural predicate of a lawsuit filed by the injured party, [West Virginia,] the law of this state does not veer from the common law prohibition of preferring not to aid wrongdoers."

Lombard Canada, Ltd. v. Johnson, No. 03-1056 (W. Va. 2005). Based upon the answer to the certified question, the Fourth Circuit reversed the jury verdict and remanded with directions to dismiss the plaintiff's claim.

Friday, August 12, 2005

"Double Secret Discrimination"

As you can see, I am still catching up on my Fourth Circuit reading. There's been a flurry of new employment-related cases these last few weeks.

In Sterling v. Tenet, No. 04-1495 (4th Cir. August 03, 2005) (PDF), the Fourth Circuit affirmed the dismissal of a Title VII discrimination case under the "state secrets doctrine" because the case would have required disclosure of highly classified information concerning the identity, location, and assignments of CIA operatives. The racial discrimination claim was brought against the Director of Central Intelligence and ten unnamed CIA employees by a CIA covert agent.

"The Director has satisfied us, as he did the district court, of the 'reasonable danger that the [material sought by Sterling] would contain references to the secret' anti-terror or other national security concerns that were 'the primary concern' of hiring Sterling as a covert operative in the first place. We are neither authorized nor qualified to inquire further."

The court found that the plaintiff would have to live the results of the CIA's internal EEO complaint process.

Fourth Circuit finds no implied cause of action in immigration statute

In Venkatraman v. REI Sys. , No. 03-1679 (4th Cir. July 29, 2005) (PDF), the Fourth Circuit affirmed dismissal of an employment discrimination complaint for failure to state a claim.

Among the causes of action pleaded was "violation of U.S. immigration laws." The plaintiff alleged that he was a United States citizen and was discharged by REI, which had hired numerous H1-B non-immigrants by falsely representing to the INS that there was a shortage of qualified U.S. workers. He alleges that such actions are in violation of 8 U.S.C. § 1182(n) and that a private right of action for a violation of § 1182(n) must be implied because the statute does not authorize such a cause of action.

In a case of apparent first impression, the Fourth Circuit ruled that no implied private cause of action should be created under § 1182(n) because an administrative remedy already exists:
Subsection (n)(5) covers complaints regarding an employer’s misrepresentation or failure to state that it has offered the job in question to any U.S. worker who is equally or better qualified. It directs the Attorney General to establish a process for the receipt, review, and disposition of such complaints. § 1182(n)(5)(B). If the Attorney General finds that reasonable cause exists, he or she must initiate binding arbitration. The arbitrator’s decision as to any failure or misrepresentation may be appealed to the Attorney General, with review of that decision in a United States Court of Appeals. See § 1182(n)(5)(D). Administrative remedies, including monetary penalties, are again authorized. § 1182(n)(E). Thus, Venkatraman’s complaints are subject to administrative remedy.

The court also affirmed dismissal of the plaintiff's other claims of wrongful discharge.

Thursday, August 11, 2005

Fourth Circuit Upholds Virginia Law Requiring Pledge of Allegiance in Schools

In Myers v. Loudoun County Pub. Sch. , No. 03-1364 (4th Cir. August 10, 2005) (PDF), a three-judge panel of the Fourth Circuit held that Va. Code Ann. § 22.1-202(C), which provides for daily, voluntary recitation of the Pledge of Allegiance in Virginia’s public schools, did not violate the Establishment Clause of the United States Constitution.

The majority opinion, written by Judge Karen Williams, regarded the pledge's phrase "one Nation under God" as a patriotic reference to a divine creator that does not offend the constitution. Quoting Justice Holmes, the court noted that "sometimes 'a page of history is worth a volume of logic.'" The opinion cites a number of patriotic references to the Deity dating back to the Declaration of Independence, and notes that "[o]ur history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders." "The Pledge is much less of a threat to establish a religion than legislative prayer, the open prayers to God found in Washington’s prayer of thanksgiving, and the Declaration of Independence."

"Undoubtedly," the majority wrote, "the Pledge contains a religious phrase, and it is demeaning to persons of any faith to assert that the words 'under God' contain no religious significance. The inclusion of those two words, however, does not alter the nature of the Pledge as a patriotic activity."

Like the famous Newdow case, this case had its own issue regarding the father's ability to prosecute the claims of his children. The suit was brought in the district court pro se by an Anabaptist Mennonite with children in the Loudon County public schools. Unlike Newdow, however, the father in this case was not an attorney. Joining several other circuit courts of appeals, the court held that "non-attorney parents generally may not litigate the claims of their minor children in federal court." However, the court found remand to be unnecessary in this case because "resolution of the children’s claim is based purely on an issue of law, and that claim is in no meaningful way prejudiced by Myers’s pro se representation below."

The concurring opinions, written by Judges Allyson Duncan and Diana Gribbon Motz, would have placed more reliance on the abundant dicta from the United States Supreme Court that the Pledge is constitutional.

Judge Duncan: "I believe that this case is best resolved by reliance upon (1) the Supreme Court’s repeated assurances, albeit in dicta, that the Pledge does not violate the Establishment Clause, and (2) authority suggesting that recitation of the Pledge is not a religious activity, but rather a "patriotic exercise designed to foster national unity and pride" in the ideals that the flag symbolizes."

Judge Gribbon-Motz: "We need not search further than these assurances [of the Supreme Court] to resolve the issue before us, and I would not do so."

Friday, August 05, 2005

Is ranch dressing the universal hillbilly condiment?

In Ranch Dressing - Why do Americans love it so much? Slate.com reviews the rise of ranch dressing as America's number one salad dressing. However, the article also notes several other uses for ranch, including as a dip for french fries and buffalo wings, and as a topping for hamburgers.

One of my college roomates experimented extensively with ranch dressing in the 1990s, applying it to a host of different foods. He called it the "universal hilbilly condiment," because of its versatility and popularity at family picnics. The Slate article confirms his theory that hillbillies love ranch: "And numerous Pizza Hut franchises in the South began offering cups of ranch alongside their pies, after a few franchisees discovered that teenagers were dipping their slices in the dressing."

One of the oddest uses of ranch I saw was on spaghetti. We were running low on Ragu, so he poured what was left of the red sauce on his spaghetti, mixed it up as best he could, then poured on two or three tablespoons of ranch. He swore it was delicious and ate his spaghetti that way from then on. When mixed up, it had an odd pink color, so I refused to try it. Then, about a year ago, I was out of spaghetti sauce at home and I tried it. He was right. It's actually very good.