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 www.avery.com. and
www.averypaper.com.
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
amerypaper.com. AA registered the domain name amerypaper.com 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
www.amerypaper.com 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
www.avery.com and www.averypaper.com when she registered the domain
name www.amerypaper.com. However, she tells you that her legal name is
Alexandra Amery and that she chose the domain name amerypaper.com
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,
chiefchicken.com, 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 chiefchicken.com. 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 sendthemhome.net 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 sendthemhome.net 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 sendthemhome.net 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
sendthemhome.net 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).
END OF EXAMINATION