Re: Linking and breaking news

On Thu, Feb 04, 1999, Gloria Phares <gcphares[_at_]pbwt.com> wrote:
>
> On Wed, 03 Feb 1999, Brian Negin <negin[_at_]cbs.gov.il> wrote,
> (among other things):
> >
> > While no law has been established on the questions raised in these
> > cases, it could be argued that a certain level of custom or practice
> > has developed in the commercial field: do not link without permission;
> > ...
>
> I'm curious to know what custom and practice you are referring to for
> this proposition? ...Does this custom and practice in the commercial
> field also forbid simply providing the URL to another commerin addition
> to the actual linking?
>
> With the variety of things going on on the Internet, are these really
> such settled questions that we can be talking with any great assurance
> about "custom and practice in the commercial field"?

The latest edition of McCarthy on Trademarks has a useful discussion of trademarks in cyberspace. If I am remembering his basic conclusion correctly (if not, we'll make it my conclusion), one commercial site may link to another without permission, even using the linkee's logo, provided the linkor does nothing to imply that it is affiliated with or sponsored by the linkee. The basic argument here is that, if I use McDonald's golden arches logo to link to a McDonald's site, this is a fair "descriptive" use of the McDonald's logo and not an infringement.

I personally tend to advise client's that they can link to other commercial sites without permission, provided they do nothing to imply they have any special relationship with that site; but I also caution that they will minimize the potential of a claim or suit if they do so using only a word or phrase identifying the linkee, rather than by using the linkee's logo. (Of course, I only give this advice after I have examined the client's purposes and concluded that there are no other factors -- e.g., content critical of the linkee -- that might unbalance the normal equation.)

I also typically add that, in the trademark arena, it is extremely unlikely that the mere act of linking will be met with a lawsuit. Rather, no sane linkee would commence a suit to enjoin such linkage without first contacting the linkor to object to its actions (unless perhaps there were some obvious immediate harm, for example, the linkor's content is highly critical of the linkee's business or Web site). That first contact will give the linkee an opportunity to reassess the situation with its legal advisor, attempt to resolve the disagreement amicably, and if all else fails, remove the link.

Howard Zaharoff, Esq.
Morse, Barnes-Brown & Pendleton, P.C.
1601 Trapelo Road
Reservoir Place
Waltham, MA 02451
(781) 622-5930 x237
(781) 622-5933 fax
email: hgz[_at_]buslaw128.com Received on Fri Feb 05 1999 - 13:23:49 GMT