Chapter 1
Legal Environment, Judicial System, Constitutional Law, and Ethics
Answer to Critical Legal Thinking Case
Flexibility of the Law
Google is not civilly liable to Dawn Bennett for the statements posted by Scott Pierson about
Bennett on Google. Section 230(c)(1) of the Communications Decency Act (CDA), a federal
statute, specifies that a service provider (such as Google) is not a publisher of information
provided by a content provider that is posted by a third-party (such as Scott Pierson). Therefore,
Google cannot be held liable for defamatory statements made by Pierson on Google.
Section 230(c)(1) of the Communications Decency Act (CDA) is an example of how the law
is flexible enough to adapt to new technology. If Section 230(c)(1) had not been enacted into law,
the internet would not have developed as quickly or as extensively as it has. If the providers of
internet services were held liable for every defamatory statement posted on their site by third
parties, then there would be few if any surviving service providers. Bennett v. Google, LLC, 882
F.3d 1163 (United States Court of Appeals for the District of Columbia Circuit, 2018)
Answers to Ethics Cases
1.2 Ethics Case
The U.S. district court found only minimal similarity and weak evidence of association between
Charbucks trademarks and Starbucks trademarks. The court held in favor of Wolfe’s Borough
Coffee, Inc., finding that Starbucks had failed to prove a likelihood of dilution of its “Starbucks”
trademarks by Wolfe’s Borough’s “Charbucks” trademarks. The court permitted Wolfe’s
Borough to continue using the “Charbucks” name in selling coffee products.
The U.S. court of appeals upheld the decision. The court of appeals stated, “There is no
question that ‘Starbucks’—an arbitrary mark as applied to coffee—is highly distinctive. The
ultimate question is whether the Charbucks marks are likely to cause an association arising from
,their similarity to the Starbucks marks, which impairs the Starbucks marks’ tendency to identify
the source of Starbucks products in a unique way. Here, minimal similarity strongly suggests a
relatively low likelihood of an association diluting Starbuck’s marks. We agree with the district
court that the distinctiveness, recognition, and exclusive use of the Starbucks marks do not
overcome the weak evidence of actual association between the Charbucks and Starbucks marks.”
Did Wolfe’s Borough act ethically in choosing a name that was similar to Starbucks? Based
on how well known the Starbucks brand is worldwide, it seems rather unlikely that Wolfe’s
Borough came up with the name “Charbucks” without thinking that it was similar to the name
Starbucks. It is very likely that Wolfe’s Borough choose the Charbuck’s name because it sounded
like Starbucks. However, as seen, the court found it was not a legal violation to have done so.
Starbucks Corporation v. Wolfe’s Borough Coffee, Inc., 736 F.3d 198 (United States Court of
Appeals for the Second Circuit, 2013)
1.3 Ethics Case
The U.S. court of appeals held that the defendant pet food manufacturers did not engage in false
advertising or misleading labeling in violation of Section 43 of the Lanham Act. Instead, the court
of appeals found that the defendants’ advertising and labeling claims were mere “puffery” that did
not violate the law.
The court of appeals stated. “Surely a reasonable consumer could understand the defendants’
packaging as indicating the type of animal from which the food was made (e.g., chicken) but not
the precise cut used (e.g., chicken breast). Reasonable consumers know that marketing involves
some level of exaggeration—what the law calls ‘puffery.’ Mere puffery is not actionable under the
Lanham Act. It is not plausible that reasonable consumers believe most of the (cheap) dog food
they encounter in the pet-food aisle is in fact made of the same sumptuous (and more costly)
ingredients they find a few aisles over in the people-food sections. The puffery defense is such an
obvious impediment to Wysong’s success.”
Was the defendants’ “puffery” advertising ethical? The defendants act of by placing
photographs of delectable lamb chops, T-bone steaks, chicken breasts, and other premium cuts of
meat on their advertising and packaging of their dog food products does seem quite exaggerated.
However, based on the “false” marketing environment consumers face daily, it is likely that they
,have become so jaded that very little advertising, no matter how outlandish, would any longer
offend their sensibilities. The court’s ruling might require the plaintiff to “join the crowd” and
plaster its dog food bags with similar photographs. Wysong Corporation v. APN, Inc., 889 F.3d
267 (United States Court of Appeals for the Sixth Circuit, 2018)
, Chapter 2
Courts and Jurisdiction
Answers to Critical Legal Thinking Cases
2.1 Quasi in Rem Jurisdiction
Yes, the U.S. district court must hear and decide plaintiff Cerner’s claim against Ahmed Saeed
Mahoud Al-Badi Al-Dahari to recover property owned by Al-Dahari that is located in Oregon. A
plaintiff who obtains a judgment against a defendant in a foreign country can collect the judgment
by attaching property of the defendant that is located in a state of the United States. The plaintiff
can bring a court action in the state in which the property is located to recover the judgment. This
is permitted under quasi in rem jurisdiction. This, Cerner may proceed in U.S. district court
to recover property of defendant Al-Dahari that is located in a state of Oregon. Cerner Middle East
Limited v. iCapital, 939 F.3d 1016 (United States Court of Appeals for the Ninth Circuit, 2019)
2.2 Service of Process
Yes, May Facebook, Inc. may use alternative service of process by sending email notices to the
defendants’ websites. Facebook sued the defendants for trademark infringement, cybersquatting,
and false designation of origin by their use of typosquatting schemes whereby the defendants
register internet domain names that are confusingly similar to facebook.com (e.g., facebock.com)
so that potential users of Facebook’s website who enter a typographical error are diverted to the
typesquatter’s website, which is designed to look strikingly similar in appearance to Facebook’s
website, to trick users into thinking that they are using Facebook’s website. Facebook has
introduced evidence that it has not been able to serve the defendants personally, by mail, or by
telephone. The U.S. district court granted Facebook’s motion to be permitted to serve these
defendants by sending an email notice to the defendants’ websites. The U.S. district court stated
“Here, service by email is reasonably calculated to provide actual notice.” The U.S. district court
issued an order permitting Facebook to serve the defendants by email. Facebook, Inc. v. Banana
Ads LLC. 2012 U.S. Dist. Lexis 65834 (United States District Court for the Northern District of
California, 2012)
Legal Environment, Judicial System, Constitutional Law, and Ethics
Answer to Critical Legal Thinking Case
Flexibility of the Law
Google is not civilly liable to Dawn Bennett for the statements posted by Scott Pierson about
Bennett on Google. Section 230(c)(1) of the Communications Decency Act (CDA), a federal
statute, specifies that a service provider (such as Google) is not a publisher of information
provided by a content provider that is posted by a third-party (such as Scott Pierson). Therefore,
Google cannot be held liable for defamatory statements made by Pierson on Google.
Section 230(c)(1) of the Communications Decency Act (CDA) is an example of how the law
is flexible enough to adapt to new technology. If Section 230(c)(1) had not been enacted into law,
the internet would not have developed as quickly or as extensively as it has. If the providers of
internet services were held liable for every defamatory statement posted on their site by third
parties, then there would be few if any surviving service providers. Bennett v. Google, LLC, 882
F.3d 1163 (United States Court of Appeals for the District of Columbia Circuit, 2018)
Answers to Ethics Cases
1.2 Ethics Case
The U.S. district court found only minimal similarity and weak evidence of association between
Charbucks trademarks and Starbucks trademarks. The court held in favor of Wolfe’s Borough
Coffee, Inc., finding that Starbucks had failed to prove a likelihood of dilution of its “Starbucks”
trademarks by Wolfe’s Borough’s “Charbucks” trademarks. The court permitted Wolfe’s
Borough to continue using the “Charbucks” name in selling coffee products.
The U.S. court of appeals upheld the decision. The court of appeals stated, “There is no
question that ‘Starbucks’—an arbitrary mark as applied to coffee—is highly distinctive. The
ultimate question is whether the Charbucks marks are likely to cause an association arising from
,their similarity to the Starbucks marks, which impairs the Starbucks marks’ tendency to identify
the source of Starbucks products in a unique way. Here, minimal similarity strongly suggests a
relatively low likelihood of an association diluting Starbuck’s marks. We agree with the district
court that the distinctiveness, recognition, and exclusive use of the Starbucks marks do not
overcome the weak evidence of actual association between the Charbucks and Starbucks marks.”
Did Wolfe’s Borough act ethically in choosing a name that was similar to Starbucks? Based
on how well known the Starbucks brand is worldwide, it seems rather unlikely that Wolfe’s
Borough came up with the name “Charbucks” without thinking that it was similar to the name
Starbucks. It is very likely that Wolfe’s Borough choose the Charbuck’s name because it sounded
like Starbucks. However, as seen, the court found it was not a legal violation to have done so.
Starbucks Corporation v. Wolfe’s Borough Coffee, Inc., 736 F.3d 198 (United States Court of
Appeals for the Second Circuit, 2013)
1.3 Ethics Case
The U.S. court of appeals held that the defendant pet food manufacturers did not engage in false
advertising or misleading labeling in violation of Section 43 of the Lanham Act. Instead, the court
of appeals found that the defendants’ advertising and labeling claims were mere “puffery” that did
not violate the law.
The court of appeals stated. “Surely a reasonable consumer could understand the defendants’
packaging as indicating the type of animal from which the food was made (e.g., chicken) but not
the precise cut used (e.g., chicken breast). Reasonable consumers know that marketing involves
some level of exaggeration—what the law calls ‘puffery.’ Mere puffery is not actionable under the
Lanham Act. It is not plausible that reasonable consumers believe most of the (cheap) dog food
they encounter in the pet-food aisle is in fact made of the same sumptuous (and more costly)
ingredients they find a few aisles over in the people-food sections. The puffery defense is such an
obvious impediment to Wysong’s success.”
Was the defendants’ “puffery” advertising ethical? The defendants act of by placing
photographs of delectable lamb chops, T-bone steaks, chicken breasts, and other premium cuts of
meat on their advertising and packaging of their dog food products does seem quite exaggerated.
However, based on the “false” marketing environment consumers face daily, it is likely that they
,have become so jaded that very little advertising, no matter how outlandish, would any longer
offend their sensibilities. The court’s ruling might require the plaintiff to “join the crowd” and
plaster its dog food bags with similar photographs. Wysong Corporation v. APN, Inc., 889 F.3d
267 (United States Court of Appeals for the Sixth Circuit, 2018)
, Chapter 2
Courts and Jurisdiction
Answers to Critical Legal Thinking Cases
2.1 Quasi in Rem Jurisdiction
Yes, the U.S. district court must hear and decide plaintiff Cerner’s claim against Ahmed Saeed
Mahoud Al-Badi Al-Dahari to recover property owned by Al-Dahari that is located in Oregon. A
plaintiff who obtains a judgment against a defendant in a foreign country can collect the judgment
by attaching property of the defendant that is located in a state of the United States. The plaintiff
can bring a court action in the state in which the property is located to recover the judgment. This
is permitted under quasi in rem jurisdiction. This, Cerner may proceed in U.S. district court
to recover property of defendant Al-Dahari that is located in a state of Oregon. Cerner Middle East
Limited v. iCapital, 939 F.3d 1016 (United States Court of Appeals for the Ninth Circuit, 2019)
2.2 Service of Process
Yes, May Facebook, Inc. may use alternative service of process by sending email notices to the
defendants’ websites. Facebook sued the defendants for trademark infringement, cybersquatting,
and false designation of origin by their use of typosquatting schemes whereby the defendants
register internet domain names that are confusingly similar to facebook.com (e.g., facebock.com)
so that potential users of Facebook’s website who enter a typographical error are diverted to the
typesquatter’s website, which is designed to look strikingly similar in appearance to Facebook’s
website, to trick users into thinking that they are using Facebook’s website. Facebook has
introduced evidence that it has not been able to serve the defendants personally, by mail, or by
telephone. The U.S. district court granted Facebook’s motion to be permitted to serve these
defendants by sending an email notice to the defendants’ websites. The U.S. district court stated
“Here, service by email is reasonably calculated to provide actual notice.” The U.S. district court
issued an order permitting Facebook to serve the defendants by email. Facebook, Inc. v. Banana
Ads LLC. 2012 U.S. Dist. Lexis 65834 (United States District Court for the Northern District of
California, 2012)
