June 28, 2005 | By Fred von Lohmann

And Now for Something Completely Different

Yesterday, nearly lost amid all the Grokster coverage, was an important ruling from the Second Circuit Court of Appeals in the fight to resist the effort by trademark owners to control our computers whenever we visit their websites. EFF filed a friend-of-the-court brief in this case, with the able assistance of Professor Eric Goldman of Marquette University Law School, on behalf of ad-ware vendor WhenU.

Hey, we are frustrated by ad-ware as much as you are, but that's no reason to let trademark owners take over our computers in cyberspace, any more than we should let them control where products get placed on drug-store shelves:

Reinforcing that simply overlaying pop-up ads on plaintiff's website isn't trademark use, the court analogizes to offline trademark "adjacencies"—such as how retail stores put their house brand next to branded products on store shelves.

For the full analysis of the ruling, read the post on Prof. Goldman's blog. EFF's press release is available here.


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