Is Liability Just a Click Away?

Author:Mr David Kelly
Profession:Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
 
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Co-Authored By Christina J. Hieber

Originally published in Internet Law & Business, March 2001

The ubiquitous act of linking one website to another has spawned many lawsuits claiming trademark infringement and dilution. Liability in these cases depends on who's doing the linking, where the linking leads the public, the content the linked site provides, and most important, the likelihood of consumer confusion or dilution.

I. Defendant-to-Plaintiff Linking

Defendant-to-plaintiff linking comes in two varieties. Either the defendant "deep links" to a page inside plaintiff's website and bypasses the plaintiff's home page, or the defendant "frames" part of plaintiff's content and obscures advertisements or information the plaintiff might want to display.

Deep linking prompted one of the most publicized suits to date. In Ticketmaster Corp. v. Microsoft Corp.1 Microsoft linked its "seattlesidewalk.com" website to the page in Ticketmaster's website promoting Seattle events. According to Ticketmaster, the deep links took away Ticketmaster's control over its mark and proprietary content, diluting its trademark and falsely suggesting an association between "seattlesidewalk.com" and Ticketmaster. In January 1999, the parties' settlement permitted Microsoft to link only to Ticketmaster's home page.2

Deep linking cropped up once again in a more recent Ticketmaster lawsuit against the ticket broker Tickets.com. In Ticketmaster Corp. v. Tickets.com, Inc.,3 Tickets.com sold tickets to some events and told users how to purchase tickets it did not sell: "[t]hese tickets are sold by another ticketing company. Although we can't sell them to you, the link above will take you directly to the other company's web site where you can purchase them." Defendant's website deep linked to interior pages of Ticketmaster's site. That interior location did contain the Ticketmaster logo so that customers knew they were dealing with Ticketmaster, not defendant.

Tickets.com initially moved to dismiss Ticketmaster's claims. In declining to dismiss the Lanham Act claims, the court noted that "deep linking by itself (i.e. without confusion of source) does not necessarily involve unfair competition." The court later denied Ticketmaster's motion for preliminary injunction, 4 finding insufficient facts to support plaintiffs claims. In short, consumers were unlikely to be misled because the links led to web pages clearly marked with Ticketmaster's logos.

But a defendant's intent to trade off the plaintiff's name also plays a role in the analysis of potential liability. In Playboy Enterprises, Inc. v. Universal Tel-A-Talk, Inc.,5 defendant operated an adult website at "adult-sex.com/playboy" and a subscription service called "Playboy's Private Collection." Defendant's site prominently featured Playboy's trademarks and linked to Playboy's website at "playboy.com." After a bench trial, the court enjoined defendant from using Playboy's marks and from linking to Playboy's website. In finding a likelihood of confusion, the court pointed to defendant's link to Playboy's website as evidence of defendant's intent to capitalize on Playboy's reputation.

In the second type of case, the framing case, the defendant's website displays material from the plaintiff's site but obscures advertisements and logos that would normally appear on that site, thus creating a risk that a visitor to defendant's site might be confused about the source of the plaintiff's framed content. Such was a central allegation in Washington Post v. Total News Inc.6 There six publishers of news websites sued Total News for framing the content of their websites on "totalnews.com." The parties' settlement provided that Total News could directly link to the plaintiffs' websites but...

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