Internet Law - Section 1

Final Examination

Professor Harpaz

May 5, 2003

Question I

(Suggested time: 75 minutes) (50 out of 120 total exam points)

            Under Virginia law, it is unlawful “for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place.” A second part of the Virginia statute states that "any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

            In an opinion issued on April 7, 2003, the United States Supreme Court upheld the constitutionality of the Virginia statute making it a crime to burn a cross with the intent of intimidating. In its decision, the Court recognized that cross-burning was symbolic expression protected by the First Amendment because it could be used to communicate messages of shared ideology and group identity. However, the Court reasoned that any speech used in such a way as to amount to a “true threat” loses its First Amendment protection. “True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. To be a true threat, the speaker does not have to intend to carry out the threat. According to the Court, cross-burning, like any other form of protected expression, could be used in such a way as to constitute a true threat.

            The Court went on to conclude that intimidation, the focus of the Virginia statute, can be a true threat “where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” In addition, the Court upheld Virginia’s right to single out one form of intimidating conduct, cross-burning, because it is more likely to inspire fear instead of prohibiting all intimidating messages. According to the Court, the state was justified in focusing on cross-burning “in light of cross burning's long and pernicious history in Virginia and throughout the South as a signal of impending violence directed principally at blacks, but also at Jews, whites sympathetic to the civil rights movement, union leaders and others.”

            While upholding the substantive provision of the Virginia law, the Supreme Court struck down the second part of the statute that made the act of cross-burning prima facie evidence of intimidation. Instead, it ruled that the state must introduce actual evidence of intent to intimidate. The day after the United States Supreme Court issued its opinion, the Virginia legislature repealed the prima facie evidence provision of the law thus curing the constitutional defect identified by the United States Supreme Court.

            On April 14, 2003, Dave Drucker, a resident of Virginia and a prominent antiwar activist, received an e-mail message. The sender of the message was warrioralan@aol.com. The subject line of the message read “Be careful.” When Dave opened the message, the text said “The attached message contains an important warning.” After reading the text, Dave opened the attachment. The attachment consisted of a video image of a burning cross on the lawn of a house that looked exactly like the house where Dave resided. The audio portion of the attachment stated “Stop your protests against the war. You are getting people angry and that is always dangerous.”

            Mr. Drucker forwarded the e-mail with its attachment to the Virginia Attorney General’s Office and requested that the state provide his family with police protection in light of the threat he had received. After an investigation, the Attorney General’s Office has learned that the cross-burning e-mail was sent to Mr. Drucker by Alan Anderson. Mr. Anderson resides in Montana and is a member of a local pro-military organization that supports the use of force as a principal tool of U.S. foreign policy. Mr. Anderson learned of Mr. Drucker’s antiwar activities from a story in an online magazine that he reads. He has never visited Virginia and has never attempted to contact Mr. Drucker except through the e-mail he sent. Cross-burning with the intent to intimidate is not a crime in Montana.

            The Attorney General’s Office is considering whether to indict Mr. Anderson and charge him with a violation of the Virginia cross-burning statute. The Assistant Attorney General in charge of the case is concerned, however, that Virginia may face statutory as well as constitutional difficulties in applying the cross-burning statute to Mr. Anderson’s conduct.

            The Assistant Attorney General has asked you to write a memorandum of law discussing the issues raised by an indictment of Mr. Anderson under the Virginia cross-burning statute. She wants you to consider whether a reasonable interpretation of the cross-burning statute would permit it to be applied to virtual cross-burning and whether Virginia can prosecute Mr. Anderson for his conduct consistent with the United States Constitution. Your memorandum should consider both the arguments in favor of the prosecution of Mr. Anderson as well as the arguments against his prosecution on both statutory and constitutional grounds.

Question II

(Suggested time: 105 minutes) (70 out of 120 total exam points)

            Barbie Babcock is a 21 year old fashion design student in Florida. She was born and raised in Florida and has only been out of the state on two occasions to visit relatives in New York. Barbie is her legal name and the name she has been known by for her entire life. In order to promote her fledgling career as a clothing designer, Barbie has developed a website called barbiedesignsclothes.com. The website includes Barbie’s resume and a number of her clothing designs. Among the designs displayed on her website are a pair of short pajamas that she has named Barbie doll pajamas, a play on her name and the pajama style known as baby doll pajamas. The site invites visitors to contact her by e-mail to discuss employment opportunities in the fashion field or the possibility of custom-ordering any of the designs she displays on her website. However, no clothing can be ordered online.

            Barbie registered the domain name barbiedesignsclothes.com about two years ago and Barbie’s website has been up and running for the past 18 months. Over that period of time, she has received several inquiries about custom-orders of her clothing designs, including one from a woman who lived in California, but none that resulted in actual orders. While no jobs have been offered to her as a result of someone learning about her solely through her website, the site has been helpful to her in interviewing for jobs through her school’s placement office. She lists the website on her resume and in one case, during a job interview, the interviewer visited the site to look at her designs. She believes that the site was helpful to her in securing a summer internship with a Palm Beach, Florida firm that designs bathing suits.

            Recently Barbie received a letter from Mattel, Inc. Mattel is a publicly held corporation with its principal place of business in California. Since 1959, it has manufactured and marketed the trademarked “Barbie” doll. The Barbie doll is the best-selling toy doll in the world. Mattel operates websites at mattel.com and barbie.com.

            In its letter to Barbie Babcock, Mattel told her that her registration and use of the domain name barbiedesignsclothes.com as well as her use of the name “Barbie doll pajamas” violated Mattel’s Barbie and Barbie doll trademarks. It suggested that she relinquish her registration and use of the domain name barbiedesignsclothes.com and cease using the name “Barbie doll pajamas” on her website. The letter further warned her that her failure to comply with the letter would result in Mattel, Inc. filing a trademark infringement suit against her in federal court in California pursuant to California’s long-arm statute which allows the exercise of jurisdiction to the fullest extent allowed under the U.S. Constitution. The letter specifically asserted claims under both Section 32 of the Lanham Act, 15 U.S.C. §1114, and the Federal Trademark Dilution Act of 1995, 15 U.S.C. §1125(c). The letter also suggested that Mattel might file a complaint against her under the provisions of the Uniform Dispute Resolution Policy (UDRP) adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) to resolve domain name disputes.

            Barbie has come to you for legal advice. She is reluctant to stop using the barbiedesignsclothes.com domain name and the name “Barbie doll pajamas” on her website. She feels that since Barbie is her legal name she should be entitled to use that name on the Web in order to promote her career as a fashion designer. She also informs you that on one occasion she received an e-mail inquiry through her website asking whether she designed clothes for Barbie dolls. She assures you that she wrote back to the sender and explained that she only designed clothes for people and not dolls and that the sender should contact Mattel in California for information about doll clothes.

            Barbie is very concerned about the letter she received from Mattel. She would like to know whether it is likely that Mattel will be able to sue her in California even though she lives in Florida. She also wants to know whether, if such a suit were to be filed, Mattel would be able to successfully sue her under either Section 32 of the Lanham Act or under the Trademark Dilution Act. She would also like you to tell her whether Mattel would succeed if it were to file a complaint under the UDRP.

            Your job is to provide Barbie with answers to her questions by analyzing her legal situation. Be sure and consider the arguments available to Mattel in pursuing its claims under Section 32 of the Lanham Act, 15 U.S.C. §1114 (available on pages 256 and 265 in the casebook), the Trademark Dilution Act, 15 U.S.C. §1125(c) (available on pages 265 and 256 (for the definition of dilution)) and the UDRP (available on pages 287-289 in the casebook) as well as the responses that you could make in representing Barbie including any affirmative defenses or objections to jurisdiction you could raise on her behalf.

END OF EXAMINATION