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Rock legend gets to continue lawsuit against HP for selling penis-measuring app named after him – Evans v. Hewlett-Packard Co., 2013 WL 4426359 (N.D. Cal. Aug. 15, 2013)

English: Photo of Chubby Checker when he was i...

(Photo credit: Wikipedia)

Want to test the urban myth that a man’s shoe size is a good measure of his you-know-what?  Well, there’s an app for that.  Or there was.  And the app store that sold it is being sued by the app’s namesake, who isn’t thrilled that his name was associated with a digital ruler for male nethers.

“The Chubby Checker” was an app for estimating the size of a man’s genitals based on his shoe size.  Hewlett-Packard’s subsidiary, Palm, Inc., offered the app for sale on its app store.  The name of the app is a pun based on “Chubby Checker,” the stage name of rock-and-roll legend Ernest Evans.  Evans and the companies who owned registered marks associated with the name “Chubby Checker” sued HP and Palm for trademark infringement and dilution, federal unfair competition, and various state law claims.

The defendants tried unsuccessfully to dismiss the trademark infringement claim.  The complaint sufficiently alleged a claim of contributory infringement against the defendants, the court found.  Plaintiffs alleged that the “Chubby Checker” name and mark was internationally famous.  The defendants also allegedly maintained “primary control” over the use of the mark by setting up a detailed application and approval process for the app.  Thus, the court ruled that it was plausible to infer that the defendants knew or could have reasonably concluded that the plaintiffs would not have consented to license the “Chubby Checker” mark for use with the app.

The defendants fared better in their attempt to dismiss the state law claims.  The defendants invoked Section 230 of the Communications Decency Act, which immunizes internet service providers from tort liability based on content published by third parties.  The plaintiffs did not allege that the defendants created the app.  Instead, third parties created the app.  Since the defendants were internet service providers rather than content providers, Section 230 required dismissal of the state law claims.

LegalTXTS Lesson: This ruling could be a major setback for app store operators.  Essentially, it means an app store could be sued for contributory trademark infringement whenever one of the apps it sells is the subject of trademark litigation.  That might make some sense if the app store set up an approval process that includes review of the intellectual property rights used by apps (e.g., see how the app Pic Bubbler fared in the review process for the Apple App Store), but not if such review is missing from the app approval process (Google Play, for example, employs a minimal review process).  And you can bet the app store operator is a prime target for litigation if it’s a deep pocket.  Like in this case, who would you rather sue—HP, or the creator of The Chubby Checker, which apparently sold a mere 88 copies at 99 cents each?

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No, it’s not an acronym advising you to come to dinner with your favorite vintage of pinot noir.  BYOD stands for Bring Your Own Device, a movement that’s changing the landscape of information technology at workplaces across the globe.  In the “old days,” companies issued electronic equipment to employees for work use.  Today, employees want to use the latest electronics of their own choice for both work and play.  Surveys consistently show that companies are giving in to such requests, citing the benefits of increased productivity and morale, as well as cost savings from not having to buy the equipment themselves.  However, BYOD programs also create legal risks for companies, including:

  • Violation of labor laws like the Fair Labor Standards Act due to the ability of workers to rack up overtime by doing work on personal devices practically anywhere and at any time, whether or not such overtime is authorized by management
  • Violation of laws prohibiting disclosure of the private information of customers, clients, or patients, such as the Health Insurance Portability and Accountability Act and the Gramm-Leach-Bliley Act
  • Inadvertent disclosure of proprietary company information, which jeopardizes their confidentiality, and as a result, their status as protected trade secrets
  • Complicating the e-discovery process, because electronic data that fall within the scope of a discovery request may reside on devices besides those under the direct control of the company

In light of these risks, the knee-jerk response of management might be to forbid BYOD entirely, but that is not necessarily the best approach.  BYOD is more prevalent than one might think.  A form of BYOD is in play whenever someone stores work data on a personal cloud storage account, uses a personal laptop to draft a memo for work, or forwards work-related word processing files to a private email account for easy access from home.  A company need not officially adopt a BYOD program to have one, which is all the reason why management should be proactive about putting BYOD policies in place.

Learn about the specific risks that a BYOD program creates for your company.  Develop guidelines on acceptable and unacceptable use of personal devices for work-related purposes.  Notify employees of the policies in writing and provide training.  Don’t wait until it’s too late!

Want more tips on BYOD?  Come to the Advanced Employment Issues Symposium in Las Vegas from November 13-15, where I’ll be giving a presentation on “BYOD Challenges: When Employees Bring Their Own Devices to Work.”  Registration information is available at www.aeisonline.com.

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Text message failed to give employer sufficient notice of intention to take FMLA leave – Lanier v. University of Texas Southwestern Medical Center, 2013 WL 2631316 (5th Cir. June 12, 2013)

sms-textLanier reminds me of a conversation I had with a friend who manages a local restaurant.  He was bemoaning the lack of professional courtesy displayed by his twentysomething employees.  “They don’t call in to say they’ll be late to a shift.  They text me!”

My friend now can say that the courts agree with him.  At least when it comes to invoking rights under the Family Medical Leave Act (FMLA), a federal appellate court recently ruled that a text message doesn’t do the job.  Chrisanne Lanier was scheduled to be on call when her father fell ill.  She sent a text message to her supervisor saying that her father was in the emergency room and that she would be unable to be on call that night.  Her supervisor responded that another employee would cover her shift.

Lanier failed to log in for her make-up call rotation several weeks later.  This led to a confrontation between Lanier and her supervisor and Lanier abandoning her job duties.  After Lanier was asked to resign, she sued her employer under various theories of recovery, including interference with her FMLA rights.

At issue was whether Lanier gave proper notice to her employer of her intention to take FMLA leave.  The Fifth Circuit held that she did not.  Although an employee doesn’t need to say the words “FMLA leave,” she must give notice that sufficiently gives her employer notice that her request to take time off could fall under the FMLA.  The employer may have a duty to inquire further if the employee’s statements warrant it, but “the employer is not required to be clairvoyant.”

In Lanier’s case, a text message saying that her father was in the emergency room was not sufficient notice of her intention to take FMLA leave, the court said.  Lanier argued that her supervisor should have inquired further because she had previously told him about her father’s advanced age, his poor health, and that he was having breathing problems that morning.  Even with these facts, the court ruled that it would be unreasonable to expect Lanier’s supervisor to know that she meant to request FMLA leave.  Lanier had taken FMLA leave before and was familiar with the proper way to request it, and yet she did not take those steps.  Finding that no reasonable jury could conclude that Lanier’s text message was sufficient to notify her supervisor of her intent to request FMLA leave to care for her father, the court granted summary judgment to the employer on the FMLA interference claim.

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Amazon not vicariously liable for copyright infringement by hosting e-commerce platform for sale of allegedly infringing photo, but could be liable for contributory infringement –  Masck v. Sports Illustrated, 2013 WL 2626853 (E.D. Mich. June 11, 2013)

By MECU (Own work) [CC-BY-SA-2.5], via Wikimedia Commons

By MECU (Own work) [CC-BY-SA-2.5], via Wikimedia Commons

Amazon.com scored a partial victory in defending against a copyright infringement lawsuit.  The plaintiff in the lawsuit was photographer Brian Masck, who claims to have taken the sharpest photo of former University of Michigan football player Heisman Desmond Howard striking the iconic “Heisman pose” in a game where his team defeated archrival Ohio State University.  Masck claimed that unauthorized reproductions of his photo were offered for sale on Amazon.com.  Masck requested Amazon to stop selling copies of the photo on its website, but Amazon allegedly did not comply.  Masck sued Amazon and other sellers of the photo for copyright infringement.

Amazon filed a motion to dismiss the lawsuit, arguing that Masck could not bring a vicarious copyright infringement claim.  One requirement for vicarious liability for copyright infringement is the defendant’s right and ability to supervise the infringing conduct.  The court agreed with Amazon’s argument that it had no practical ability to determine which products being sold on its e-commerce platform were infringing.  Masck did not make specific factual allegations demonstrating that Amazon could plausibly verify the copyright status of each and every piece of merchandise it lists from third-party sellers.

Amazon did not fare so well in trying to dismiss Masck’s contributory infringement claim.  Selling infringing merchandise is considered a material contribution to infringement.  Amazon continued selling the alleged infringing photos even after Plaintiff requested their removal from Amazon’s website.  Plaintiff’s request should have alerted Amazon to potential infringement.  Based on that record, the court declined to dismiss the contributory infringement claim against Amazon.

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Court dismisses lawsuit against Match.com arising out of attack of one member by another – Beckman v. Match.com, 2013 WL 2355512 (D. Nev. May 29, 2013)

A court threw out a Match.com subscriber’s lawsuit alleging that the online dating service was responsible for the injuries she sustained from being attacked by a man whom she met through the service.  Mary Kay Beckman met Wade Mitchell Ridley through Match.com and dated him briefly before ending the relationship.  After the break-up, Ridley sent Beckman threatening and harassing text messages.  Several months later, Ridley ambushed Beckman at her residence and repeatedly stabbed and kicked her.

Beckman filed a $10 million lawsuit against Match.com for (1) negligent misrepresentation; (2) deceptive trade practices; (3) negligent failure to warn; (4) negligence; and (5) negligent infliction of emotional distress.  The federal district court of Nevada granted Match.com’s motion to dismiss the entire lawsuit.

The court held that Section 230 of the Communications Decency Act immunized Match.com from the negligence and negligent infliction of emotional distress claims.  The court easily found that Match.com was an “interactive services provider” and not an “information content provider.”  The court also found that the theory behind the claims was exactly the reason that CDA immunity exists—to protect publishers against liability based on publication of online content generated by third parties.  Beckman alleged that Match.com was negligent in posting Ridley’s profile, which led to her to date Ridley and later be attacked by him.  Because the information in the profile originated from Ridley, CDA immunity protected Match.com from liability based on publication of the profile.

The court took a bit more effort to apply the CDA to Beckman’s claims for negligent failure to warn and negligent representation.  Although those claims tried to focus on Match.com’s alleged failure to warn Beckman instead of Ridley’s profile, the court concluded that the wrongful conduct alleged in the claims was still traceable to the publication of the profile.  There was nothing for Match.com to negligently misrepresent or negligently fail to warn about other than what a Match.com user might find on another user’s profile.  Since the negligent failure and negligent misrepresentation claims were just another way of holding Match.com liable for information originating with a third party, the CDA barred those claims.

The court also found reasons to dismiss the negligence-based claims other than the CDA.   The negligence claim failed because no special relationship exists between a provider of online dating services and its subscribers, and in the absence of a special relationship, Match.com owed no duty to its subscriber.  The emotional distress claim could not survive because, according to the court, posting an online dating profile did not rise to the level of “extreme and outrageous” conduct required to recover for emotional distress.  Finally, Beckman did not satisfy a heightened pleading standard that applied to the negligent misrepresentation claim.

The deceptive trade practices claim, which Beckman brought under the Federal Trade Commission Act, was dismissed because there is no private right of action to enforce the Act.  Beckman argued that the claim alleged that Match.com was negligence per se for violating the Act, but the court found that she did not plead such a claim.

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