• INTELLECTUAL PROPERTY RIGHTS

Google Inc. v. Louis Vuitton Malletier SA(C-236/08), Cour d'appel de Paris (Court of Appeal, Paris)

Intellectual Property Rights - Trademark - Appellant/Google operates an internet search engine and also offers a paid referencing service called 'AdWords'- Appellant has set up an automated process for the selection of keywords and the creation of ads, wherein, advertisers select the keywords, draft the commercial message, and input the link to their site -  Vuitton proprietor of the Community trade mark 'Vuitton' and of the French national trade marks 'Louis Vuitton' and 'LV'became aware of entry of terms constituting its trade marks into Google's search engine triggered the display, under the heading 'sponsored links', of links to sites offering imitation versions of Vuitton's products. Vuitton brought proceeding against Google. Google was found guilty of infringing Vuitton's trade marks by Regional Court, Paris - Whether the proprietor of a trade mark is entitled to prohibit a third party from displaying, or arranging on the basis of a keyword identical with, or similar to, that trade mark which that third party has, without the consent of that proprietor, selected or stored in connection with an internet referencing service and whether the referencing service provider can be held liable prior to its being informed of the unlawful conduct of that advertiser.

It was held that an internet referencing service provider which stores, as a keyword, a sign identical with a trade mark and organises the display of ads on the basis of that keyword does not use that sign within the meaning of Article 5(1) and (2) of Directive 89/104 or of Article 9(1) of Regulation No40/94 and internet referencing service constitutes an information society service consisting in the storage of information supplied by the advertiser, and that the referencing service provider therefore cannot be held liable prior to its being informed of the unlawful conduct of that advertiser. Judgment of District court is vacated.

Todd latimer v. Roaring toyz, Inc.

Intellectual Property Rights - Infringement of Copyrights - Appellant was a professional photographer who specializes brought this action against Defendants alleging federal copyright infringement under 17 U.S.C. § 501 and unfair competition under Florida common law - Defendants moved for summary judgment arguing that Appellant's photographs were "unauthorized derivative works based upon protectable preexisting works created and owned by Ryan Hathaway," and as such do not qualify for copyright protection - District court granted summary judgment to all Defendants on Latimer's unfair competition claim holding that it is preempted by the Copyright Act -  Whether the issuance of the summary judgment justified and whether the allegations of copyright infringement and unfair competition can be established.

Held, that a motion for summary judgment is properly granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Courts have historically viewed summary judgment as inappropriate in the copyright infringement context because of the inherently subjective nature of the inquiry and it was held that district court's denial of summary judgment to Kawasaki and Hachette affirmed reverse the District Court's grant of summary judgment to Kawasaki based on implied license, reverse the district court's grant of summary judgment to Hachette based on fair use. It was further held that to establish a prima facie case of copyright infringement, "two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Once the plaintiff produces a certificate of registration, the burden shifts to the defendant to establish that "the work in which copyright is claimed is unprotectable Latimer produced a certificate of copyright registration granted June 2006, less than four months after the photographs were initially published. Thus, Latimer benefits from a rebuttable presumption that his copyright is valid. Judgment partly affirmed.

• TAXATION

U.S. 8th Circuit Court of Appeals

Thomas H. Holman, Jr.; Kim D.L. Holman, Donors v. Commissioner of Internal Revenue

Taxation-Interpretation-"Bona fide Business Arrangement"- The appellants (the "donors") created a limited partnership - Funded it with common stock of Dell, Inc., and gifted limited partnership shares to their children - In a gift-tax return, the donors asserted lack-of-marketability and minority-interest discounts due to transfer restrictions in partnership agreement - Claimed a value for the gifts substantially below the value of the underlying Dell stock - Commissioner disallowed claim- Applied Internal Revenue Code § 2703 - Tax Court partly affirmed the order of Commissioner- Hence present Appeal - Section 2703 - Internal Revenue Code (26 USC).

Held, to be eligible for the exception and gain the benefit of having such restrictions considered for valuation purposes, the taxpayer must satisfy a three-part test: the restriction must be "a bona fide business arrangement," it must not be "a device to transfer such property to members of the decedent's family for less than full and adequate consideration," and its terms must be "comparable to similar arrangements entered into by persons in an arm's length transaction."

In the light of the purposes stated in the partnership agreement and in light of the donors' testimony, the Tax Court rightly concluded that meaning of the term "bona fide business arrangement" in section 2703(b)(1) is not self-apparent. In Estate of Amlie v. Commissioner, the term "bona fide business arrangement" interpreted to encompass value-fixing arrangements made by a conservator seeking to exercise prudent management of his ward's minority stock investment in a bank consistent with his fiduciary obligations to the ward and to provide for the expected liquidity needs of her estate. Those were not the purposes of paragraphs in the partnership agreement. Therefore, transfer restrictions were to be disregarded for valuation purposes. Hence Appeal by Assessee dismissed. (majority opinion)

• CRIMINAL

United States Court of Appeals For the First Circuit

Michael j. Foley v. Lawrence kiely; gerald p. Collins; diana dipietrantonio

Criminal - Unlawful Seizure and Arrest - Infringement of Constitutional Right - Plaintiff claimed under 42 U.S.C. Section 1983 against Massachusetts State Troopers - Plaintiff had a Board of Probation record and there was an outstanding federal National Crime Information Center ("NCIC") warrant for his arrest out of the state of Florida - Was found in a suspicious manner in a high crime area - Whether in the light of facts, Troopers were justified in arresting him?

Held, it is well established, however, that not every seizure is an arrest requiring probable cause under the Fourth Amendment. Foley claims that once the police prevented him from leaving, the stop constituted an arrest for which probable cause was required, but Foley misreads the law. There are "certain encounters between police and private citizens, called Terry stops, that fall short of the intrusiveness of a full arrest." Schubert v. City of Springfield, 589 F.3d 496, 501 (1st Cir. 2009). In such circumstances, an officer may make a brief investigatory stop of an individual if the officer has reasonable suspicion "that criminal activity may be afoot." United States v. Am, 564 F.3d 25, 29 (1st Cir. 2009) (citing United States v. Arvizu, 534 U.S. 266 (2002)).

Court applying two-pronged inquiry to evaluate "whether the officer's action was justified at its inception, and whether the action taken was reasonably related in scope to the circumstances which justified the interference in the first place." Examining the case in the light of facts and evidences adduced, held no infringement of Constitutional Right.