Intellectual Property Law

No Commerical Interest Means No Standing, Seventh Circuit Says

By Michael Atkins

Someone with a little too much time on her hands Yahooed! herself. 

To her dismay, the search results linked to Web sites and ads that the searcher found “shameful.”

So Beverly Stayart did the natural thing a person with too much time (and worse yet) too much money would do. 

She sued Yahoo!

Well, the Eastern District of Wisconsin dismissed her claims.

So she appealed.

On Sept. 30, the Seventh Circuit affirmed, finding Ms. Stayart lacked standing to assert her claims because she does not have a commercial interest in her name.

Ms. Stayart argued that her political activities involving advocacy and boycotts constitutes “services” and “commercial activities.”

The Seventh Circuit found otherwise.

“Relying on cases in other circuits, Stayart argues that because her activities include advocacy and boycotts she is engaged in ‘services’ and ‘commercial activities’ and therefore has standing to pursue her claim. In support of this position, she cites to a case from the Second Circuit in United We Stand Am., Inc. v. United We Stand, Am. NY, Inc., 128 F.3d 86, 89 (2d Cir. 1997) that discusses non-profit groups that engage in ‘service’ and that affect ‘commerce.’ The problem with that argument is that United We Stand was brought under a different section of the Lanham Act, 15 U.S.C. 1114(1)(a) or, as it is otherwise known, § 32 of the Lanham Act. That section and its language are distinct from § 43. Specifically, § 32 gives ‘[n]onprofit and charitable corporations … the same protection against confusing use of their names as is given to business corporations. But unlike § 43, § 32 requires that a plaintiff seeking protection have ‘a registered mark.’ Stayart has not raised a claim under § 32, and even if she had, it would still fail because she does not claim that her name is a registered trademark. Therefore, United We Stand is inapplicable and Stayart’s activities do not give her standing under § 43.”

The case cite is Stayart v. Yahoo! Inc., __ F.3d __, 2010 WL 3785147, No. 09-3379 (7th Cir. Sept. 30, 2010).

Full post as published by Seattle Trademark Lawyer on October 06, 2010 (boomark / email).