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Framing

One of the first major cases to challenge framing on intellectual property theories was Washington Post Co. v. Total News, Inc., No. 97 Civ. 1190 (PKL) (S.D.N.Y. June 6, 1997). Total News provided a web site that featured a list of "name-brand" news services, identified by their trademarks, in a narrow column to the left, an advertising banner across the bottom right of the screen, and a content window in the upper right of the screen. When a user clicked on a news service, that news service's content appeared within the window on the Total News site. However, when the news service's content first loaded, the advertising banner on the Total News web site obscured its advertisements. Some of the framed sites responded by setting their pages to refresh when loaded, so that the pages appeared in their own window without the Total News frame.

The plaintiffs - which included the Washington Post, Time, Inc., Reuters America, and CNN-alleged that the defendant's "framing" of their sites constituted misappropriation, trademark dilution, trademark infringement and unfair competition, among other things. They claimed that the Total News site was "parasitic" and "provided little or no content of [its] own." The plaintiffs described the Total News site as the "equivalent of pirating copyrighted material from a variety of famous newspapers, magazines or television news programs; packaging those stories to advertisers as part of a competitive publication or program produced by defendants; and pocketing the advertising revenue generated by their unauthorized use of that material."


The Total News case settled almost immediately. Under the terms of the settlement, Total News may continue to provide links to the plaintiffs' Web pages, but it must do so without framing the linked sites. The settlement also requires that any linking 1) not cause confusion, mistake or deception; 2) not imply endorsement or sponsorship by or association with the publishers without prior authorization; and 3) not dilute the publishers' trademarks.

A more recent case involving framing is based substantially on copyright claims. Defendant, Applied Anagramics, owns the "1-800-DENTIST" trademark, and exclusively licensed it to plaintiff Futuredontics. Desiring some benefit relating to the mark, Anagramics created a web site that displayed the mark by framing Futuredontics' site. Futuredontics has sued for copyright infringement, alleging that defendants created an unauthorized derivative work within the meaning of the Copyright Act, and alleging a false advertising claim under § 43(a) of the Lanham Act, arising out of certain representations made by Applied Anagramics.

Consistent with the Futuredontics ruling, it is generally agreed that the strongest case for copyright infringement in "framing" cases is a derivative works claim. The copyright owner's exclusive right to prepare derivative works is violated if a legally-owned copy of the copyrighted work is altered, modified or presented to the public in a distorted form

Suits in future "framing" cases can also be expected to include Lanham Act unfair competition claims, as in Total News. Unfair competition may be established if the use of the link falsely states or implies that a person or company has endorsed, sponsored or approved certain goods/services. The relevant test for determining liability under a Lanham Act unfair competition theory is whether it is likely that consumers will be misled into believing that a product or service has been endorsed or approved when in fact it has not.

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