November 1999 Vol. 5 No. 11 ISSN 1087-6219
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In This Issue

• Network Solutions not liable for registration of infringing domain name
• Police department may be liable for failure to investigate child abuse
• FEHA plaintiff with mental disorder need not show substantial limitation
• False advertising claims on book covers not protected by the First Amendment
• UPDATES

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Network Solutions not liable for registration of infringing domain name

The Ninth Circuit has ruled that the domain name registration process does not make the registrar liable for infringing domain names. The registrar does not supply a “product” that is used to infringe a trademark.

Lockheed has a registered and incontestable service mark in the name “Skunk Works.” That is the name of Lockheed's aircraft design and construction laboratory. During the relevant period, Network Solutions was the sole registrar for domain names for the .gov, .edu, .com, .org and .net top-level domains.

Several third parties registered variations of “skunk works” as domain names with Network Solutions. Lockheed brought two of those registrations to the attention of Network Solutions. Network Solutions took no action, because Lockheed had not followed its dispute resolution procedure. Lockheed sued Network Solutions for contributory service mark infringement.

Contributory infringement occurs when the defendant supplies a product to a third party with actual or constructive knowledge that the product is being used to infringe the service mark. Inwood Lab., Inc. v. Ives Lab., Inc., 456 U.S. 844 (1982). That concept has been extended to situations where the defendant supplied the necessary marketplace for the sale of infringing products. The critical factor is the extent of the defendant's control over the third party's means of infringement.

Network Solutions provides the service of linking a domain name to a particular server's location on the Internet. It does not control the use that the registrant makes of the domain name. Therefore, its conduct does not fall under the Inwood Lab definition of contributory infringement.

Lockheed Martin Corp. v. Network Solutions, Inc., 1999 WL 965618 (9th Cir. Oct. 25, 1999).

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Police department may be liable for failure to investigate child abuse

The Second District Court of Appeal in Los Angeles has ruled that the police have a duty to investigate and report suspected child abuse. A child injured through a breach of that duty may sue for damages.

Three-year old Alec Alejo lived with his mother and her boyfriend in Alhambra, California. Alec's father, Hector Alejo, reported his suspicions that the boyfriend was abusing Alec to the Alhambra Police Department, which did nothing. Six weeks later, the boyfriend beat Alec, and left him permanently disabled. The trial court sustained Alhambra's demurrer to Alec's negligence claim without leave to amend. The Court of Appeal reversed.

California Penal Code section 11166 provides that certain public employees, including police officers, must report reasonably suspected child abuse. That obligation includes an implied duty to investigate. A violation of the statute may give rise to liability for negligence per se.

At the demurrer stage, the boyfriend's conduct could not be deemed a superseding cause that broke the chain of causation. Whether or not that conduct was reasonably foreseeable was an issue of fact.

The court rejected Alhambra's statutory immunity defenses. Discretionary immunity under Government Code section 820.2 was not available, because section 11166 imposes a mandatory duty. Immunity for failure to enforce an enactment under Government Code sections 818.2 and 821 did not apply, because those provisions do not apply to enactments that impose mandatory duties.

Alejo v. City of Alhambra, 1999 WL 974541 (Cal. Ct. App. Oct. 27, 1999).

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FEHA plaintiff with mental disorder need not show substantial limitation

The Second District Court of Appeal in Los Angeles has ruled that establishing a mental disability under the California Fair Employment and Housing Act (FEHA) does not require proof of a substantial limitation. The standard diverges from the one applied under the federal Americans with Disabilities Act.

Dr. Stanley Swenson was a physician at the Los Angeles County/University of Southern California Medical Center. He suffers from attention deficit disorder, dyslexia and a disability involving writing and written expression. He discharged his duty to prepare written patient records by using residents that he supervised in the teaching ward to which he was assigned.

In 1992, the Medical Center reorganized its wards, and assigned Dr. Swenson to a non-teaching ward. Without the residents that had been available in his teaching wards, Dr. Swenson had difficulty preparing written records. He requested various accommodations, including transfer to a teaching ward, a quiet environment, use of dictation services or computer software. No accommodation resulted. Eventually, the Medical Center terminated Doctor Swenson's employment.

In Dr. Swenson's lawsuit for mental disability discrimination under the FEHA, the trial court instructed the jury that “[a]n employee has a mental disability when he has or is regarded by his employer as having any mental disorder or condition which affects one or more major life activities.” The jury awarded $532,000 in economic damages and $370,000 in non-economic damages. The court awarded $268,210 in attorney's fees. The Court of Appeal affirmed.

Under the federal ADA, a disability is a physical or mental impairment that “substantially limits” a major life activity. FEHA's definitions are broader. A physical disability is one that “limits” a person's ability to participate in major life activities. A mental disability is “any mental or psychological disorder.” FEHA does not contain an express requirement as to the degree of disability required.

The Court of Appeal refused to engraft the ADA definition onto FEHA. If statutory language is unambiguous, a court may not look beyond the statute's words and examine extrinsic aids. FEHA's language is clear, and leaves no room for imposing the ADA's substantial limitation requirement.

Two earlier Court of Appeal decisions on this issue had reached opposing results. In Pensinger v. Bowsmith, 60 Cal. App. 4th 709 (1998), the court concluded, as the instant court did, that it could not ignore FEHA's plain language. A few months later, a different Court of Appeal disagreed, concluding that the omission of the ADA definition was a “legislative oversight.” Muller v. Automobile Club of Southern California, 61 Cal. App. 4th 431 (1998).

Swenson v. County of Los Angeles, 1999 WL 826195 (Cal. Ct. App. Oct. 18, 1999).

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False advertising claims on book covers not protected by the First Amendment

The First District Court of Appeal in San Francisco has ruled that verifiably false factual statements on book and videotape covers do not enjoy First Amendment protection. The statements constituted commercial speech that may be regulated if it is false.

A group of retired women in Beardstown, Illinois, formed an investment club that eventually claimed a 10-year average investment return of 23.4 percent. “The Beardstown Ladies” spawned a videotape and several books. The covers for these publications contained claims such as “23.4% annual return,” “59.5% returns in 1991” and “learn how to outperform mutual funds and professional money managers 3 to 1.” The statements also appeared in the publications themselves.

Russell Keimer sued the publishers for false advertising and unfair business practices. The trial court sustained the publishers' demurrers without leave to amend. The Court of Appeal reversed.

Commercial speech enjoys less protection under the First Amendment than non-commercial speech. The state may regulate and restrict it in the pursuit of legitimate state interests. The statements identified in the lawsuit were commercial speech, because their purpose was to sell the publications.

Determining the constitutionality of restrictions on commercial speech involved a four-prong analysis: (1) whether the speech involved is misleading; (2) the strength of the governmental interest; (3) whether the restriction directly advances the interest; and (4) whether the restriction is reasonably tailored to serve the interest. See Central Hudson Gas& Elec. v. Public Serv. Comm., 447 U.S. 557 (1980).

California's false advertising rules target misleading speech, which the state has a “fervent interest” in regulating. The restrictions directly advance that interest. There was no claim that the restrictions were overbroad.

The publishers argued for greater protection, because the statements also appeared in the publications themselves. The statements in the publications were entitled to full First Amendment protection. However, there was no convincing authority to support the publishers' contention that the protection for the publications should apply to the covers.

Keimer v. Buena Vista Books, Inc., 1999 WL 974479 (Cal. Ct. App. Oct. 27, 1999).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Amos v. Alpha Property Management (August 1999 issue), petition for review filed (Sep. 3, 1999).

County of Los Angeles v. Superior Court (Schonert) (September 1999 issue), now reported at 21 Cal. 4th 292 (1999).

Gilbrook v. City of Westminster (June 1999 issue), now reported at 177 F.3d 839 (9th Cir. 1999).

Gonzalez v. Hughes Aircraft Employees Federal Credit Union (March 1999 issue), modified on denial of rehearing (Mar. 25, 1999), review granted (Jun. 3, 1999). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.

Jewish Defense Org., Inc. v. Superior Court (July 1999 issue), review denied (Sep. 15, 1999).

Kleitman v. Superior Court (September 1999 issue), now reported at 74 Cal. App. 4th 324 (1999), petition for review filed (Sep. 27, 1999).

Lagatree v. Luce, Forward, Hamilton & Scripps (October 1999 issue), petition for review filed (Oct. 22, 1999).

Marich v. QRZ Media, Inc. (August 1999 issue), review denied and official reporter directed not to publish the decision (Oct. 20, 1999). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.

Overly v. Ingalls Shipbuilding, Inc. (September 1999 issue), now reported at 74 Cal. App. 4th 164 (1999), petition for review filed (Sep. 21, 1999).

Real v. City of Compton (September 1999 issue), now reported at 73 Cal. App. 4th 1407 (1999), petition for review filed (Sep. 15, 1999).

Robi v. Reed (April 1999 issue), cert. denied, 1999 WL 688536 (Oct. 18, 1999).

Sposato v. Electronic Data Sys. Corp. (October 1999 issue), now reported at 188 F.3d 1146 (9th Cir. 1999).

Stanley v. University of Southern California (July 1999 issue), petition for certiorari filed (Oct. 14, 1999).

Stoll v. Runyon (February 1999 issue), amended (Mar. 22, 1999).

Thomas v. Anchorage Equal Rights Commission (February 1999 issue), rehearing granted and opinion withdrawn (Oct. 19, 1999).

Wellington v. Lyon County Sch. Dist. (October 1999 issue), now reported at 187 F.3d 1150 (9th Cir. 1999).

Zelig v. County of Los Angeles (August 1999 issue), review granted (Oct. 20, 1999). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.

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