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Daily News, Unsolicited Advice

Humancentipad: Terms of Use Work For You Sometimes

This post has been edited as a means of protecting some interested parties’ identities.

In the case of Ordonez v. Icon Sky Holdings, LLC, we saw a case of what otherwise could be considered an attempt at trademark hijacking. You can find a writeup of the other legal goings on at the Eric Goldman Technology and Marketing Law Blog, but we have our take on one aspect of the case here.

The interesting, albeit obvious in retrospect, part of this case is the way in which the plaintiff, Elizabeth Ordonez, managed to collect damages.

You see, Ordonez is a model, dancer, choreographer, pretty face, and internet personality. She, like any good business woman these days, developed a social media presence which included sites like Facebook, but also lesser known sites like Model Mayhem and, no doubt, certain photographers’ sites as well. She committed to getting her name out there for at least the last three years and seemingly some expense as well.

When she signed up to be a part of those sites she, like all of you, like me, agreed to a set of terms of use which she probably did not read. At all. (See HumancentiPad)

Those terms of use are interesting because they can have more impact than you think. They allow websites to cut you off from what most people regard as a “free” and “unencumbered” internet. (for now) They allow this because the terms of use are actually contractual language that has evolved from what used to be known as “box top” and “click wrap” licenses.

In the cold dreary days of the 80′s and 90′s there was a ton of litigation about these licenses, but they boiled down to this: you bought the software, when you opened the program for the first time you had to agree to the terms. If you didn’t you could return the software. Your act of using the program was an affirmative gesture showing that you agree to be bound by the terms of those contracts.

That’s the same thing you agree to when you install iTunes, and it is pretty much the same with a website.

So, Elizabeth Ordonez had contracts. She also had a stage name.

Unfortunately, she, unlike the Situation*, did not trademark her name. Which is where Icon Sky Holdings comes in.

The owner of Icon Sky was also named Elizabeth, Nisha Elizabeth George, and apparently she thought it would be a great idea to snatch up the trademark on Mr. Ordonez’s stage name.

At some point, she must have Googled that name and found out that someone else had been using it for years. Because once she had it registered, she went about making demands that the various social media sites where Elizabeth Ordonez was promoting herself drop the model as a user.

That was taking things too far.

When you start using a trade name, it becomes part of your existence. Once you become any kind of big deal you should register your trade name and slogans* to make sure that they are yours, but even if you do, all that registration really is, is proof that you owned it first. When you know someone is using the mark, though, it doesn’t even do that for you.

So, when Elizabeth George and Sky Holdings starting having Ordonez bounced from those websites she was tortiously interfering with a contract because she knew, probably without knowing the law, that her trademark was not infringed upon, but that it was the other way around.

The upshot of the whole matter is a validation and valuation of the internet/social media presence, which was worth $78,000 in this case.

So, remember, get to tweeting and bs-ing on Facebook, because all of that really does have value.

Ed. Note – This strikes me as a good candidate for the marquee claim for alleged infringers against internet providers and copyright holders if SOPA gets put into law.
*Always be like the Situation**
**Try to never be like the Situation, except in business, where he seems to be awesome or has awesome people working for him

About E.C.

Corporate and regulatory attorney. Also experienced in advocacy for the mentally disabled and minor litigation matters. Not currently practicing, but maintaining the blog to keep my research and writing skills sharp. Splitting time between Connecticut and Massachusetts.

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  1. Pingback: JOLT Digest » Ordonez v. Icon Sky Holdings LLC | Harvard Journal of Law & Technology - December 6, 2011

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