LAW: Judgments - Cybersquatting - Employees
U.S. District Court, Southern Ohio, 2007
HER Inc. v. RE/MAX First Choice LLC
Domain too close to competitor's name
A federal district court has entered an injunction prohibiting a competitor of a large regional brokerage from using any of several domain names the competitor had registered. The court believes the large brokerage is likely to succeed in its lawsuit to prevent the competitor from using the domain names that bear a resemblance to the brokerage’s names and trademarks.
In the case, 700 salespeople associated with HER, which provides brokerage services under the name Real Living, received an e-mail from herbiejr@insiderealliving.com,purporting to be an inside look at the company’s operations and making claims that the company restricted the listings available on its Web site. The domain name was similar to one of the company’s registered trademarks, REAL LIVING.
The company found that the e-mail had been sent by a salesperson working for a competitor. It also found that the individual had registered the domain name insiderealliving.comas well as several other domain names that implied an association with HER and Real Living. Any visitors to the similarly named Web sites were diverted to the competing company’s site.
HER filed a lawsuit, charging cybersquatting, the practice of registering, trafficking in, or using a domain name with the bad faith intent to profit from the goodwill of a trademark holder.
The court decided that because HER had a valid, well-known trademark that was very similar to the ones registered by the competing sales associate and because that sales associate and his brokerage intended to profit from the confusion of the two companies, HER’s situation met the requirements for protection under the law. The court also granted an injunction because it believed the continued use of the domain names could confuse consumers and cause harm to Real Living.
U.S. Court of Appeals, Ninth Circuit, 2006
Swift v. Realty Executives Nevada’s Choice
Court says salesperson was employee
A federal appellate court has determined that a real estate brokerage can be liable for the sexual harassment of a salesperson that the brokerage had treated like an independent contractor.
In the case, Doris Swift filed a complaint with the Equal Employment Opportunity Commission, contending she had been sexually harassed at the office by another sales associate. The EEOC denied her claim because she wasn’t an employee, which is necessary to claim sexual harassment under the law. Swift next filed a suit seeking damages from the brokerage for a sexually hostile environment in violation of Title VII. The brokerage filed for a dismissal because Swift was an IC.
The trial court rejected the brokerage’s motion, finding that several factors, such as the brokerage’s requirement that it approve all sales and listing contracts, indicated Swift had an employee-employer relationship with the brokerage.
A federal appellate court also found there was sufficient evidence to support the trial court’s ruling. Note: NAR and the Nevada Association of REALTORS® contributed financially to the brokerage’s defense.
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The MLS sued the municipalities, seeking access to the data under Wisconsin’s open records law. This statute requires that public records be available to anyone paying the copying fee. The municipalities argued that they had licensed the data to the vendor, so the vendor had control of it. However, the state court of appeals ruled in favor of the MLS, determining that the municipalities couldn’t contract away their responsibility to provide public access.
The court also upheld the MLS’s request to receive the data in an electronic database format as within its rights under state law, since the municipalities received the data in that form from the vendor.
U.S. Ct. of Appeals, 5th Cir.
Positive Software Solutions v. New Century Mort. Corp., 2007
Nondisclosure doesn’t void arbitration
A federal appeals court has decided that an arbitrator’s failure to disclose his minimal contact with the attorney of the prevailing party in an arbitration doesn’t change the validity of the decision.
In the case, software developer Positive Software Solutions Inc. and New Century Mortgage Corp. went to arbitration to resolve a dispute over unauthorized copy of software. Before the arbitration began, the arbitrator, who had been selected by the parties, was asked to disclose any circumstances that might affect his impartiality. He disclosed none. The arbitration took place, and the ruling favored the mortgage company.
After the ruling, the software developer learned that the arbitrator had served as cocounsel in an earlier, unrelated case with the attorney employed by New Century Mortgage. According to this attorney, she had never met the arbitrator, who had been employed by another of the seven firms working on the decade-old case.
The software vendor sued to have the arbitration ruling set aside. The trial and appeals courts agreed because of the arbitrator’s failure to disclose the relationship. However, the appellate court later changed its ruling.
Courts in general don’t agree on whether a party challenging arbitration must show an actual appearance of bias or whether just the impression of bias is sufficient to put aside a ruling. In this instance, the court decided that the arbitrator’s failure to disclose the relationship was trivial because the two attorneys had never met. Disclosure would have been necessary only if the arbitrator had a substantial interest in a company that had had more than trivial business with one of the parties.
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