Washington Post v. Total News

Citation

Washington Post Co. v. Total News, Inc., No. 97 Civ. 1190 (PKL) (S.D.N.Y., filed Feb. 20, 1997) (complaint).

Factual Background

The defendant, Total News, Inc., was a website owner that provided a portal to various news services available on the Internet. Total News' website, at the time of the complaint, provided links to a variety of other news sites on the Web, including CNN, CBS, NPR, and others. The linking mechanism was initially implemented in such a way that the news organizations’ Web pages appeared to be “on” the TotalNews page. This particular variant of in-line linking is popularly known as “framing,” as it involves a border from one site &mdash' the frame — surrounding or edging the content from another site. In the TotalNews situation, the framed content was surrounded by TotalNews advertising.

Trial Court Proceedings

Various news organizations (Washington Post, Cable News Network, Times Mirror, Dow Jones and Reuters New Media) sued Total News for misappropriation, federal trademark dilution, trademark infringement, false designation of origin, copyright infringement, and various state claims. Paragraph 30 of the complaint stated:

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At the heart of Defendants' wrongful conduct is a practice known as “framing” that causes Plaintiffs' websites to appear not in the form that Plaintiffs intended, but in an altered form designed by Defendants for their own economic advantage. The totalnews.com website consists of lists of numerous “name-brand” news sources, including the famous trademarks exclusively associated with Plaintiffs in the public mind. When a user of totalnews.com “clicks” on one of those famous trademarks with the computer mouse, the user accesses a Plaintiff's corresponding website. (In Internet parlance, the trademarks here function as “hyperlinks”: areas on the screen that, when clicked on, take the user directly to another website.) Plaintiff's site, however, does not then fill the screen as it would had the user accessed Plaintiff's site either directly or by means of a hyperlink from a website that does not “frame” linked sites. Nor does Plaintiff's URL appear at the top of the screen as it normally would. Instead, part of Plaintiff's site is inserted in a window designed by Defendants to occupy only a portion of the screen. Masking part of Plaintiff's site is the totalnews.com “frame,” including, inter alia, the “TotalNEWS” logo, totalnews.com URL, and advertisements that others have purchased from Defendants.

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Settlement Agreement

On June 1997, the case was settled without any judicial decisions on the legality of framing. The following are relevant portions of the settlement agreement:

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4. Plaintiffs agree that Defendants may link from the totalnews.com website or any Plaintiff's website, provided that: (a) Defendants may link to Plaintiffs' websites only via hyperlinks consisting of the names of the linked sites in plain text, which may be highlighted; (b) Defendants may not use on any website, as hyperlinks or in any other way, any of Plaintiffs' proprietary logos or other distinctive graphics, video or audio material, nor may Defendants otherwise link in any manner reasonably likely to: (i) imply affiliation with, endorsement or sponsorship by any Plaintiff; (ii) cause confusion, mistake or deception; (iii) dilute plaintiffs' marks; or (iv) otherwise violate state or federal law; (c) Defendants' link must operate in a manner consistent with paragraph 2; and (d) each Plaintiff's agreement to permit linking by Defendants remains revocable, on 15 business days' notice in accordance with paragraph 14 below, at each Plaintiff's sole discretion. . . .

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