Important! – Another Class Action Under New Jersey Law re Website Terms

Silkowski v. Apple

Facts: The iTunes terms of service state in part: In no case shall Apple, its directors, officers, employees, affiliates, agents, contractors, or licensors be liable for any direct, indirect incidental, punitive, special, or consequential damages arising from your use of any of the Tunes service or for any other claim related in any way to your use of the iTunes service"

Allegation: Prohibited by New Jersey's Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA) because violates "any clearly established legal right of a consumer or responsibility of a seller"

FactsAlso state: "Some. jurisdictions do not allow the limitation of liability for personal injury.„ so this limitation may not apply to you"

Allegation: "Because these provisions fail to state whether they are inapplicable, void, or unenforceable in New Jersey, the Terms and Conditions violate the TCCWNA"


Paramount Pictures Files Opposition at USPTO Over Sneaker Trademark

In re The Sneaker Don LLC

Factual Allegations:

  • Paramount owns a family of trademarks using the "puppet" logo from The Godfather, including a registration for apparel
  • The website, The Sneaker Don, is attempting to register a similar "puppet" logo for use in connection with "athletic footwear
  • The Sneaker Don mark is confusingly similar, as it is used in connection with similar goods, targeted to the same class of consumers, and is likely to be associated by consumers with Paramount
  • Minor differences between the marks do not avoid a likelihood of confusion
  • The Sneaker Don mark dilutes Paramount's mark

Click here to view image.


Journey Sues Advertiser For Cancelling Concert

Journey v. Monster, Inc.

Factual Allegations:

  • Email from Monster: "Here is an official offer for Journey [to play a concert at CES], with all the other major details included for this show"
  • Reply email from Journey: "Thank you ... will put something together for you now"
  • Phone conversation: Journey verbally confirmed that it agreed to the terms set forth in Wharton's letter offer and would perform the show
  • Phone conversation: Monster advised it would not go for with the show and would riot pay Journey the $500,000.00 guarantee

Claim:

  • Monster's failure to honor the agreement for Journey to perform at CES or to pay Journey the $500,000.00 guarantee constitutes a material breach of the agreement

Court Holds No Copyright Infringement for Website Whose Writers Uploaded Infringing Content

BWP Media USA, Inc. v. Clarity Digital Group, LLC

Facts:

  • Examiner,com is a celeb news website which uses independent paid writers who upload articles directly
  • Writers uploaded 75 infringing photos to Examinericom

Issue: Was Exarniner.com immune under the Digital Media Copyright Act (DMCA)?

Holding:

  • Yes, it's writers were "users" (even though they were paid by Examiner.com) and Examiner.com wasn't "willfully blind" to infringements as it told writers not to infringe, provided a "cleared" photo bank, and didn't ignore acts of copyright infringement brought to its attention

Celebrity Held Not Liable for Ad Claims Relating to Endorsed Product

Luman v. Joe Theismann

Facts: Ex-Washington Redskin, Joe Theismann, was sued in California for false advertising in connection with the sales of its Super Beta Prostate product that he endorsed

Issue: Can a celebrity spokesperson be liable for the advertising claims?

Holding:

  • Theismann was merely the ceiebrity spokesperson and not the seller of the product
  • He never had title to the products-at-issue
  • Therefore, case dismissed against him