Internet Law
Final Examination
Professor Harpaz
May 3, 2012

Question I
(Suggested time: 75 minutes) (60 out of 144 total exam points)

    Avery Forman, Inc., a company founded in 1955, makes a well known line of paper products including stationary, cards, invitations, brochures, and labels, as well as design templates and software for all of their paper products. Avery Forman holds a number of registered trademarks including Avery, Avery Forman, Avery Paper, and Avery Paper Products. All of the trademarks were registered in 1965 and are both famous and distinctive. While Avery Forman, Inc. has its corporate headquarters in California, the company sells its products in stores throughout the country as well as online through the websites of various retailers and its own websites at and   

    Recently, Avery Forman received several requests for products called Amery Paper Designs. After looking into the matter, Avery Forman learned that Alex Amery (AA) is a designer specializing in customized paper products. Her business operates under the name Amery Paper Designs and is located in Springdale, Massachusetts where AA operates a store to sell her customized paper products. For the past year, in addition to doing business out of her store, AA has been selling her products through a website with the domain name of AA registered the domain name in January, 2011. Customers can go to the website and select various customized versions of her paper products. Her biggest sellers are wedding invitations and Christmas cards.

    Avery Forman has now filed an action against Alex Amery in California asserting violations of the  Federal Trademark Dilution Act (pages 129-131), and the Anticybersquatting Consumer Protection Act (pages 131-133). AA has come to you for legal advice. First, she wants to know whether she is liable for trademark infringement based on her registration and use of her domain name. Second, she wants to know whether she can be sued in California when her business is located in Massachusetts.

    In your conversations with AA, she has acknowledged to you that she was aware of Avery Forman, Inc. and its websites at and when she registered the domain name However, she tells you that her legal name is Alexandra Amery and that she chose the domain name because it is a combination of her legal name and the name of her bricks and mortar business.

    AA also tells you that she has only been to California once and that was 5 years ago for a family vacation. She has checked her records and out of the 300 people who ordered paper products from her website last year only 2 of them appear to be California residents. Moreover, she does not believe that any of the customers who come to her store reside in California. In addition, AA informs you that while she carries a few ads on her website for wedding related items such as a store that sells wedding gowns, all of the advertisers are businesses located in Springdale, Massachusetts. In your preliminary research, you have learned that California’s long-arm statute extends to all cases where personal jurisdiction could be asserted over a nonresident defendant consistent with the Fourteenth Amendment Due Process Clause.

    Your job is to give AA advice on the two issues she has raised. Your advice should include answers to the following four questions:

(1) What arguments are available to Avery Forman to establish that California can exercise personal jurisdiction over AA consistent with the Due Process Clause?;  
(2) What responses can you make to those arguments to show that California cannot exercise personal jurisdiction over AA consistent with the Due Process Clause?;
(3) What arguments are available to Avery Forman to prove that AA has violated the Federal Trademark Dilution Act and the Anticybersquatting Consumer Protection Act?; and
(4) What arguments are available to AA to defend against Avery Forman’s trademark infringement claims?

Question II
(Suggested time: 45 minutes) (36 out of 144 total exam points)

    Chief Chicken (CC) is a well known chain of fast food restaurants. One of its main rivals is King Chicken (KC). For several years, CC has aired television commercials that compared its chicken sandwiches to KC sandwiches and claimed it makes the better sandwich. It used the slogan, “Chief Chicken, the real chicken sandwich.” Last year, CC announced a contest on its website,, in which members of the public were invited to submit homemade video commercials which depicted Chief Chicken’s chicken sandwiches as vastly superior to the sandwiches sold by King Chicken and which used Chief Chicken’s “real chicken sandwich” slogan. The makers of the winning 5 videos would each get a cash prize and the winning commercials would be posted on All contest submissions would become the property of Chief Chicken which could use them in any way that it wanted.

    CC received thousands of submissions. CC’s director of advertising and her staff judged the contest and picked the 5 winners. The winning commercials all poked fun at King Chicken’s sandwiches and depicted them as made of various ingredients, none of which was chicken and most of which were inedible. They played off of CC’s slogan, “the real chicken sandwich.” The 5 winning videos were placed on CC’s website and went viral, even resulting in a sketch on Saturday Night Live.

    King Chicken was outraged by the videos and their claims that King Chicken sandwiches are not made of chicken and contain various other inedible ingredients. It brought suit against Chief Chicken. The lawsuit asserts claims of (1) product disparagement (which requires the plaintiff prove that the defendant made a false statement concerning the nature or quality of plaintiff's product with knowledge of the statement’s falsity), (2) intentional interference with an advantageous business relationship (which requires the plaintiff prove the existence of a business relationship between the plaintiff and third parties (its customers), the defendant's knowledge of that relationship, the defendant's intentional and unjustified interference with the relationship, and consequent damage to the plaintiff), and (3) trademark infringement under the Lanham Act. In response to the suit, Chief Chicken has filed a motion to dismiss asserting that King Chicken’s lawsuit is barred by Section 230 of the Communications Decency Act (pages 289-291).

    You are a law clerk to the federal district court judge hearing the case. The judge has asked you to write an analysis of the legal arguments that Chief Chicken can make in support of its claim that King Chicken’s lawsuit is barred by Section 230 as well as the legal arguments that King Chicken can make that Section 230 does not prevent it from suing Chief Chicken.    

Question III
(Suggested time: 60 minutes) (48 out of 144 total exam points)

    A group of students at Springdale High School, a public high school in the City of Springdale, have formed a club called the “Send Them Home” Club (STHC) to advocate harsher penalties for illegal immigrants. The group operates online only and has developed a website at the domain name to publicize their views and to conduct virtual meetings in a members-only chat room. The virtual meetings are held in the evenings while school is not in session. In addition, a few of the members of the STHC occasionally exchange text messages with each other at lunchtime when students are allowed to use their cell phones. About 25 percent of the students at Springdale High School were not born in the United States.

    After the Principal of Springdale High School received complaints about the contents of the website from a number of parents who complained that the website was fueling hostility directed at their children at the high school, the school investigated the behavior of the students who were members of the STHC. It examined the content of the website. It discovered that the website contains hostile rhetoric about illegal immigrants and the American-born children of such immigrants. It does not name anyone the club believes to be an illegal immigrant, but only speaks in general terms about the problems created by illegal immigration such as taking jobs from “real Americans” and costing money by using government services such as public education. The public areas of the website do not mention Springdale High School. 

    After the investigation, the Principal concluded that the students were violating a school rule that restricted student clubs to “clubs that promote positive values in keeping with the values that are taught at Springdale High School.” Since the high school curriculum stresses inclusiveness and acceptance of differences among students rather than divisiveness, the STHC was viewed as in violation of the school rule.   

    The club rule applies to clubs that “are organized and sponsored by students at Springdale High School and meet in a facility that is accessible to students while they are on the grounds of the high school, including the school building, outdoor areas that are part of the grounds of the school, the parking lots that abut the school, and other facilities that are available for communication while school is in session.”

    The members of the STHC have been threatened with suspension if they do not disband the STHC and takedown the website. The students have argued that the club rule does not apply to their online meetings since the meetings do not take place on school property. In addition, the students argue that Springdale High School would be violating their First Amendment rights if the members of the STHC were disciplined for their online speech.

    You are the lawyer for the Springdale School District. The Principal of Springdale High School has asked for your legal advice about the two arguments that the students have made. He does not intend to take any action against the students until he hears from you. Please provide him with an analysis of (1) the legal arguments that the students can make in claiming that the club rule should not be interpreted to apply to their participation in the STHC and (2) the legal arguments that the students can make to demonstrate that the school would be violating their First Amendment rights in disciplining them for the content of their online speech. In addition, please describe how the school can respond to these arguments. In considering the First Amendment issue raised by the students, please consider the possible applicability of the strict scrutiny standard as well as the possible applicability of the Tinker test as described in Kowalski v. Berkeley County Schools (pages 245-250).