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E-Commerce News
University's Spam Filters Don't Violate First Amendment; Ezee And Easy Aren't Confusing
August 31, 2005
UNIVERSITY'S SPAM FILTERS DON'T VIOLATE FIRST AMENDMENTA university that installs spam filters, places limits on e-mail storage space, and restricts some uses of the e-mail system, does not violate the First Amendment rights of an e-mail account holder, according to the U.S. District Court for the Southern District of Texas.
The University of Houston Downtown barred adjunct faculty members from accessing the e-mail system during the summer, unless they were teaching summer school, and controlled the amount of data coming into, and being stored on, the e-mail system. The University installed spam filtering software to stop junk solicitations. The software evaluated the probability that an electronic message was spam. E-mail messages that appeared to be spam were quarantined. The targeted recipient would then receive a report of the quarantined e-mail, which provided the sender's address and subject line. The recipient could release the quarantined e-mail message by clicking on a button and pushing "send."
An adjunct professor alleged that the system hindered his ability to send e-mails to other faculty members. The professor also alleged that when he tried to use the e-mail distribution system to complain about compensation issues, he was denied access to his e-mail account.
In response, the university presented evidence to prove that some of the problems encountered resulted from the professor's exceeding the designated storage capacity imposed on all e-mail accounts. The professor also used a private e-mail address without taking the steps necessary to designate it as legitimate to prevent it from being quarantined. But according to the court, the university placed no restrictions on any of the professor's e-mail communications. The court also found that the status-based restrictions that barred all but full-time faculty members and adjuncts teaching that semester or session from using e-mail, were necessary to the operation of the university e-mail system.
According to the court, "The system-wide anti-spam filtering and limits on the amount of storage capacity imposed on e-mail account use by faculty and staff who are authorized users are not content-or viewpoint-based restrictions and are reasonable in light of the need to control the amount of data stored on the system and to filter the data coming into the system."
Because the court found that the university's e-mail use restrictions were reasonable, content-neutral restrictions, as a matter of law, they did not infringe the professor's free speech rights.
EZEE AND EASY AREN'T CONFUSING
According to a recent decision from an arbitration panel of the World Intellectual Property Organization (WIPO) the domain name ezeemobile.com is not so similar to the trademark "easymobile" that consumers would be confused.
In reaching its decision, the panel concluded that of all the possible misspellings of "easymobile," it is unlikely a user would mistype "ezeemobile." Aside from visual differences between the two terms, the panel felt that the "easy" brand had such strength and recognition among consumers that any confusion was unlikely. In addition, because "easymobile" never varies the spelling of the "easy" prefix for its various brands, consumers are unlikely to be duped.
In an interesting aside, the panel considered the argument by ezeemobile.com that, even if its domain name was confusingly similar, the contents of its website would dispel any confusion.
According to the panel, however, the "consensus view," is not to consider the contents of the Web site but only the domain name itself. The panel quoted from a previous WIPO decision as follows "The use to which the site is put has no bearing upon the issue whether the domain name is confusingly similar to the trade mark, because by the time Internet users arrive at the Web site, they have already been confused."
Based on that finding, the panel declined to consider content on the respondent's Web site that may have dispelled confusion. In this case, of course, that finding was moot, given that the panel determined that there was no confusion in the first place. It is interesting to note, however, that if the domain name is confusingly similar the domain name registrant will not get off the hook by pointing to the content of the site.
If you have questions about any of the above information, please contact Jack Greiner at 513-629-2734 or jgreiner@graydon.com.
Libertas Technologies, LLC provides software development, database development, e-Commerce, e-Business and Web site development. They have over 20 years of experience and a long track record of success building business applications and Web sites that help their clients improve business results. Libertas is very proud to have a been a 2003 and 2004 finalist for the Cincinnati Better Business Bureau's "Torch Award For Marketplace Ethics.” Visit their Web site: www.libertastechnologies.com
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