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Re: eBay seller sues VeRO member

On 30 Mar 2006 07:05:52 -0800, "Dhakala" <NoPoliticalCalls@xxxxxxxxx>
wrote:

>http://www.gamespot.com/news/6146692.html
>
>Blizzard sued by WOW guide author <snip>

Vivendi et al may prevail on this action, but very narrowly.  The
"how-to" guide may indeed violate trademark infringement, if plaintiff
Kopp used various registered trademarks in its text and/or graphics.
However, there can be no copyright damage under my limited
understanding of DMCA, unless Kopp plagierized part of the WOW game's
official user's guide or other protected material, or if he used
screen snapshots of the game's graphics, a distinct possiblity.  A
pamphlet or digitized text is NOT game code, either. All Kopp would
have to do is use a pseudonym for the registered trademarks in
question and eliminate any screen snapshots and he can continue on
unfettered.

What respondents may try to argue, however, is that their
"intellectual property" rights are being purloined by plaintiff's
guide, which would be a high bar to pass over.  Case law shows that
similar "intellectual property rights" cases brought by owners (NBC v.
Worldwide Pants, Harley-Davidson v. Kawasaki USA, et al) generally
fail as long as the information contained in the respondent's product
is not a direct copy of any of the owner's materials.  As far as
"trading off of goodwill" goes, so what?  Consumer Union has written
reviews of new cars for over 50 years, and the Big 3 at times has
tried to quash their actions through similar "goodwill" suits and have
always failed.  First Amendment rights, however, do not necessarily
apply in the instant case, since eBay is legally regarded as private
property.  Case law is fuzzy on 'Net issues at best.  In labor law,
however, case law like "Lechmere" and "Jean Country" have extended the
right of free speech, narrowly defined by the NLRA, into private
property many times.

My bet:  Plaintiff is enjoined from any further use of any of
plaintiff's text or graphical trademark material, and is further
enjoined from using any "screen snapshots."  If the "how-to" guide
text is original material, he gets to publish that at will.


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