Saturday 7 April 2012

Viacom v Google - the next installment

The 2nd US Circuit Court of Appeals has reversed (Thursday 4th April) the June 2010 lower court ruling from Judge Louis Stanton in favour of YouTube, which resulted from the $1 billion lawsuit filed by Viacom, the English Premier (football) League and others in 2007 to stop the posting of clips from programmes like the Daily Show and SpongeBobSquarePants amongst 79,000 copyrighted works, giving YouTube DCMA protection.

A YouTube spokeswoman said in an e-mailed statement: "All that is left of the Viacom lawsuit that began as a wholesale attack on YouTube is a dispute over a tiny percentage of videos long ago removed from YouTube. Nothing in this decision impacts the way YouTube is operating." Viacom, in a statement, said the appeals court "delivered a definitive, common sense message to YouTube: intentionally ignoring theft is not protected by the law."

The full judgment is available here

There is a very good analysis of the decision that can be found on the IP Kat by Annsley Merelle Ward here.

It’s not been a great week for Google in the USA: The Court of Appeals for the Fourth Circuit effectively put the web giant’s use of AdWords back into play, in a trade mark case brought by language learning software company Rosetta Stone.

The decision marks the first appellate decision to discuss whether Google's AdWords program gives rise to trade mark infringement liability against Google. The Appeals Court vacated the District Court’s judgment in favour of Google in respect of Rosetta Stone’s (1) direct trade mark infringement claim, (2) contributory trade mark infringement claim and (3) trade mark dilution claim and remanded these claims for further proceedings. Whilst The Appeals Court affirmed the District Court's judgment in favour of Google in respect of vicarious trade mark liability and unjust enrichment claims, the decision means the remaining matters will now go to trial to explore Google's potential liability for the AdWords program, something already (at least partially) established in the EU in cases such as L’Oreal v eBay and the Interflora case (Interflora Inc and Interflora British Unit v Marks & Spencer plc and Flowers Direct Online Limited). More here.

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