The Life Is Good Company sued Florida-based Viral Style LLC for trademark infringement, unfair competition, counterfeiting, and passing off. Viral Style operates www.viralstyle.com, which allowing users to design and sell their own t-shirts, hats, mugs and the like. Life Is Good alleges that Viral Style’s users have infringed it incontestable registration to “LIFE IS GOOD” and that Viral Style itself has infringed the mark by making the shirts designed by its users. Life Is Good further contests that Viral Style’s “Intellectual Property Complaint Policy” does not meet the safe harbor requirements of the Digital Millenium Copyright Act (“DCMA”) because it provides no method for screening a design to ensure it does not infringe another’s intellectual property rights and does not bar repeat offenders from the site, and in any event that the DCMA safe harbor provisions apply only to copyright, and not to trademark claims.
Judge Hillman denied Marshall’s motion for attorneys’ fees. The lawsuit involved a dispute over whether the plaintiff should have been named as a co-author of a PLoS Biology paper, which would have given him the right to retract its publication. Marshall prevailed and moved for fees under 17 U.S.C. § 505, which allows for the discretionary award of costs and fees to a prevailing party in a copyright suit. Using his discretion, Judge Hillman determined that Mallon’s position was not objectively unreasonable and was not brought in bad faith, and that Mallon was unlikely to file more such suits, eliminating the need to impose fees for the purpose of deterrence.
A complaint was filed by David Oppenheimer and his company, Performance Impressions, LLC, against CIEE, Inc., alleging misuse of an aerial photograph of the Isle of Palms in South Carolina taken by Mr. Oppenheimer. CIEE (Council on International Education Exchange) is an organization that runs study abroad programs. CIEE is accused of using one of Mr. Oppenheimer’s photographs on its website without authorization.