The Spiritual Mediums, the Websites and Trademark Infringement

-->

On January 22, 2013, James Van Praagh (plaintiff) filed a trademark infringement action against his sister, Lynn Gratton (defendant). Van Praagh v. Gratton, 2014 WL 292460 (U.S. District Court for the Eastern District of New York 2014). He accused her of  “(1) trademark infringement in violation of the Lanham Act, 15 U.S. Code § 1114(1)(a); (2) false designation of origin in violation of the Lanham Act, 15 U.S. Code § 1125(a); (3) trademark dilution in violation of the Lanham Act, 15 U .S. Code § 1125(c)”.  Van Praagh v. Gratton, supra.  

If you are interested, you can find a news story about the suit here.  And Wikipedia has a good overview of trademark law.  

Gratton responded by filing a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which allows a defendant to ask the court to dismiss some or all of the plaintiff’s claims because they are legally insufficient, i.e., fail to state a claim upon which relief can be granted. Van Praagh v. Gratton, supra.  In ruling on a Rule 12(b)(6) motion, a judge does not weigh the facts alleged by both sides; instead, the judge’s task is to note the facts in the case and determine whether, based on those facts, the plaintiff has adequately alleged certain causes of action, such as the ones noted above.

The judge began the process of ruling on Gratton’s motion to dismiss by noting that “[i]t is well-established that a complaint should be dismissed under Rule 12(b)(6) only if it does not contain enough allegations of fact to state a claim for relief that is `plausible on its face.’” Van Praagh v. Gratton, supra (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).  And he outlined the facts from which the suit arose, noting that

[Van Praagh], a resident of California, and [Gratton], a resident of New York, are siblings. . . . While [they] at one time shared the surname `Van Praagh,’ [Gratton] ceased using `Van Praagh’ as her last name when she married on August 28, 1970, at which time she assumed the surname `Gratton’. . . .  instead. . . .

[Van Praagh] purports that for the last twenty years, he has provided spiritualmedium services in connection with his name and trademark `James Van Praagh’ (the `James Van Praagh Trademark’). . . . [W]hile using the James Van Praagh Trademark, he has appeared on syndicated television shows; presented at large conferences and retreats; worked with people throughout the United States and internationally; authored books; maintained a website and online community; and offered seminars. . . . 

[Van Praagh] `has developed an enormous following and is one of the most recognized spiritual mediums in the world.’ . . . He claims that by using the James Van Praagh Trademark in association with his spiritual medium services, books, website, shows and seminars, he `has built valuable good will in his name.’

Van Praagh v. Gratton, supra.  The judge then outlined how this suit arose:

[Van Praagh] alleges that in 2010, [Gratton] began providing her own spiritual medium services in the State of New York using the surname `Van Praagh,’ which he also suggests is trademarked by him (the `Van Praagh Trademark’). . . . Upon learning [Gratton] was using the alleged Van Praagh Trademark, [Van Praagh] contacted [her] and demanded she stop using the name. . . . However, [Gratton] ignored those demands. . . .

In addition, [Van Praagh] claims [Gratton] has used the Van Praagh Trademark while offering her spiritual medium services at various venues throughout the United States and on her websites, Facebook Page, Twitter account and YouTube channel. . . . [He] appears to suggest that his sister has marketed her spiritual medium services using the trademarks `Lynn Van Praagh’ and `Lynn Van Praagh–Gratton,’ and that the use of these names overlap with his James Van Praagh Trademark and Van Praagh Trademark. . . .

With respect to [Gratton’s] websites, [he] alleges that [she] has registered the domain names `www.lynnievanpraagh.com’ and `www.lynnievanpraaghgratton.com.’ . . . According to one of these websites, . . . [Gratton] holds herself out as `a Spiritual Medium with the gift of communicating on the other side with those who have passed’ and she `comes from a long line of highly gifted psychics and mediums, it's been her family's gift for many generations.’ . . . Further, the `about’ page of this website includes claims [Gratton’s] `mother had the gift as do some of her siblings.’

When [Van Praagh] discovered [Gratton], without authorization, was continuing to use and expanding upon her use of the Van Praagh Trademark, he again . . . demanded she cease using the Van Praagh Trademark. . . . [She] declined to do so. . . .

Approximately two years after [Gratton] began using the Van Praagh name in association with her own spiritual medium services, on October 30, 2012, [she] registered the James Van Praagh Trademark with the United States Patent and Trademark Office. . . . The federal trademark registration numbers for the James Van Praagh Trademark are U.S. Reg. Nos. 4,233,849 and 4,233,848. Prior to October 30, 2012, the James Van Praagh Trademark was unregistered. It also appears that the Van Praagh Trademark was and remains unregistered.

Van Praagh v. Gratton, supra.    

The judge began his analysis of the legal sufficiency of Van Praagh’s causes of action with his claims for trademark infringement under 15 U.S. Code § 1114(1)(a) and false designation of origin under 15 U.S. Code § 1125(a).  Van Praagh v. Gratton, supra.  He noted that to prevail on a trademark infringement claim, a plaintiff must demonstrate

(1) ‘that it has a valid mark entitled to protection,’ and (2) ‘that the defendant's use of that mark is likely to cause confusion.’ Juicy Couture v. Bella Intern. Ltd., 930 F.Supp.2d, 489 (U.S. District Court for the Southern District of New York 2013) (quoting Time, Inc. v. Petersen Publ'g Co. LLC, 173 F.3d 113 (U.S. Court of Appeals forthe 2d Circuit 1999)).

With respect to determining whether the use of a mark by the defendant will cause confusion,

`[c]ourts look to the following factors . . .: (1) the strength of the plaintiff's mark; (2) the similarity of the marks; (3) the competitive proximity of the products in the marketplace; (4) the likelihood that the senior user will `bridge the gap’ by moving into the junior's product market; (5) evidence of actual confusion; (6) the junior user's bad faith in adopting the mark; (7) the respective quality of the products; and (8) the sophistication of the consumers in the relevant market.’

Juicy Couture v. Bella Intern. Ltd., supra. . . .

Van Praagh v. Gratton, supra.    

The judge then noted that 15 U.S. Code § 1125(a), which creates the cause of action for false designation of origin, the statute prohibits any misrepresentation likely to cause

`confusion about the source of a product, in particularly the use by any person of [ ] any . . . name . . . likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association . . . with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.’ L'Oreal USA, Inc. v. Trend Beauty Corp., 2013 WL 4400532 (U.S. District Court for the Southern District of New York 2013) (quoting 15 U. Code § 1125(a). . . . `[T]he standards for false designation of origin claims under . . . (15 U.S.C. § 1125) are the same as for trademark infringement claims under . . . (15 U.S.C. § 1114).’ Twentieth Century Fox Film Corp. v. Marvel Enterprises, Inc., 220 F.Supp.2d 289 (U.S. District Court for the Eastern District of New York 2002). . . .

 

Van Praagh v. Gratton, supra.    

Finally, he pointed out that while 15 U.S. Code § 1114 protects registered trademarks, 15 U.S. Code § 1125(a) “`is a broad federal unfair competition provision which protects unregistered trademarks[.]’” Van Praagh v. Gratton, supra (quoting L'Oreal USA, Inc. v. Trend Beauty Corp., supra). To qualify for trademark registration, a mark must be

`either [ ](1) “inherently distinctive,” where its intrinsic nature serves to identify its particular source; or (2) distinctive by virtue of having acquired a ‘secondary meaning’ in the minds of consumers.’ Lopez v. Gap, Inc., 883 F.Supp.2d 400 (U.S. District Court for the Southern District of New York 2012) (quoting Artisan Mfg. Corp. v. All Granite & Marble Corp., 559 F.Supp.2d 442 (U.S.District Court for the Southern District of New York 2008)). 

It `must also be “used in a way sufficiently public to identify or distinguish the marked goods in an appropriate segment of the public mind as those of the adopter of the mark”’ and `must have been used in commerce, not merely adopted by the plaintiff.’ Lopez v. Gap, Inc., supra (quoting Gameologist Grp., LLC v. Scientific Games Int'l, Inc., 838 F. Supp. 2d 141 (U.S.District Court for the Southern District of New York 2011).

Van Praagh v. Gratton, supra.    

The judge then applied these standards to this case, noting that Van Praagh claimed he

has a registered trademark for his name, `James Van Praagh,’ which he has used in connection with his spiritual medium services for approximately twenty years. Thus, the James Van Praagh Trademark would constitute a valid mark for purposes of a trademark infringement claim pursuant to the Lanham Act, 15 U.S. Code § 1114(1)(a).

[He] also claims to have an unregistered trademark for his surname alone, `Van Praagh.’ When a trademark involves a personal name, courts have held:

`Personal names used as trademarks are generally regarded as descriptive terms and are thus protected only if, through usage, they have acquired distinctiveness and secondary meaning. Once an individual's name has acquired a secondary meaning in the marketplace, a later competitor who seeks to use the same or similar name must take reasonable precautions to prevent the mistake. 

Still, determining what constitutes reasonable precautions or limitations entails a fact-intensive analysis that must be made with balance and the understanding that to prohibit an individual from using his true family surname is to take away his identity and is so grievous an injury that courts will avoid imposing it, if they possibly can.’

Shear Contractors, Inc. v. Shear Enterprises & General Contracting, 2010 WL 4781335, (U.S. District Court for the Northern District of New York 2010).

The judge found Van Praagh had sufficiently alleged that “`Van Praagh’ is distinctive so as to qualify as a valid mark for the purposes of a claim for false designation of origin or unfair competition.” Van Praagh v. Gratton, supra.    

Assuming, . . . the factual allegations in the Complaint are true, [he] has allegedly been providing spiritual medium services under the surname `Van Praagh’ for twenty years. In connection with these services, [he] has used `Van Praagh’ for his books, websites, shows and seminars. Over the years, [the Plaintiff], under the `Van Praagh’ surname, has built himself a large following and is now one of the most-recognized purported psychics in the world.

Accordingly, based on these factual allegations, the Court finds that the Complaint has adequately alleged that `Van Praagh’ has acquired a secondary meaning in the marketplace in order to state a claim for false designation of origin under the Lanham Act, as well as an unfair competition claim under New York State common law.

Van Praagh v. Gratton, supra.    

He also found Van Praagh had sufficiently alleged that Gratton’s use his surname  

is likely to cause confusion so that [his] trademark infringement and false designation of origin claims survive this stage of the litigation. Indeed, [he] asserts that the [Gratton], under the name `Lynn Van Praagh’ or `Lynn Van Praagh–Gratton,’ has begun offering the same or similar spiritual medium services as [he] offers. 

She has used these names in connection with marketing she has done online through her website, Facebook page, Twitter account and YouTube channel. In the Court's view, `Lynn Van Praagh’ and `Lynn Van Praagh–Gratton’ could be considered similar to the Plaintiff's James Van Praagh Trademark and Van Praagh Trademark.

Moreover, according to her website, [Gratton], like [Van Praagh], travels across the country offering her alleged spiritual medium services. Also, her website suggests that she is from a family of psychics, and even mentions that some of her siblings have a spiritual gift. As such, the Court finds that it is possible that [her] use of `Van Praagh’ in association with her spiritual medium services may confuse a consumer into think that her services are in some way connected to or endorsed by [van Praagh].

Van Praagh v. Gratton, supra.    

The judge then took up Gratton’s challenge to Van Praagh’s cause of action for trademark dilution in violation of 15 U.S. Code § 1125(c).  Van Praagh v. Gratton, supra.    

`To prevail on a federal trademark dilution claim, a plaintiff must prove (1) its mark is famous and distinctive, (2) its mark is used in commerce by the defendant, and (3) the defendant's use is likely to cause dilution through either “blurring” or “tarnishment.”’ Boarding School Review, LLC v. Delta Career Educ. Corp., 2013 WL 6670584 (U.S.District Court for the Southern District of New York 2013). . . . `[D]ilution by blurring refers to the whittling away of the established trademark's selling power and value through its unauthorized use by others.’ Study Logic, LLC v. Clear Net Plus, Inc., 2012 WL 4329349 (U.S. District Court forthe Eastern District of New York 2012). 

`Whether a mark or trade name is likely to cause dilution by blurring depends on factors including the similarity between the mark and the famous mark, the distinctiveness and degree of recognition of the famous mark, and whether the user of the mark or trade name intended to create an association with the famous mark.’ Study Logic, LLC v. Clear Net Plus, Inc., supra (quoting Estate of Ellington ex rel. Ellington v. Harbrew Imports Ltd., 812 F.Supp.2d 186 (U.S.District Court for the Eastern District of New York 2011). . . .

Van Praagh v. Gratton, supra.    

The judge found Van Praagh had stated a claim for trademark dilution because he,

using the name `James Van Praagh,’ is recognized worldwide for the alleged psychic services he provides, which involves publishing books and appearing on widely syndicated television shows and at large conferences throughout the United States. Thus, the Complaint suggests the James Van Praagh Trademark and the Van Praagh Trademark have been used in commerce and are famous and distinctive.

Moreover, the Complaint further alleges [Gratton] is using the `Van Praagh’ name to offer her own spiritual medium services, which the Court finds could result in the dilution of [his] marks, depending on what discovery reveals with respect to (1) whether [Gratton’s] use has impacted the selling power of the James Van Praagh and the Van Praagh Trademark and (2) the quality of the services offered by [Van Praagh] while using the James Van Praagh Trademark and the Van Praagh Trademark as compared to those offered by [Gratton] while using similar marks. . . .

Van Praagh v. Gratton, supra.    

The judge therefore denied Gratton’s Rule 12(b)(6) motion insofar as it was directed at these claims, which mean they survive.  Van Praagh v. Gratton, supra.    

The Locked iPhones, Search Incident and the 4th Amendment

After he was “charged in a one count indictment with knowingly and intentionally distributing heroin in violation of 21 U.S. Code § 841(a)(1)”, Christopher Williams filed a motion to suppress “all evidence discovered after police seized and searched his cell phones following a traffic stop of a vehicle in which [he] was a passenger.”  U.S. v. Williams, 2014 WL 412526 (U.S. District Court for the District of Vermont 2014).

According to the opinion, this is how Williams came to be prosecuted:

On . . . February 7, 2013, Vermont State Police (`VSP’) Trooper Michael Studin was travelling northbound on Interstate 91 in Vermont when he stopped a motorist for an alleged violation of 23 [Vermont Statutes Annotated] § 1038, which requires that vehicles remain entirely in a single lane `as nearly as practicable.’ In the location of the traffic stop, I–91 is a two-laned highway which is separated from two lanes of southbound traffic by a large median. There was light traffic on the day in question and the weather and pavement were clear.

Studin was driving in the passing lane when he approached a vehicle with out-of-state plates which he recognized as a rental car by the placard in its rear window and because the make and model . . . were typical for a rental car. He observed the vehicle `coming close to the dotted center line,’ . . . and maneuvered his cruiser behind [it]. Shortly thereafter, he purportedly observed the vehicle cross the passing lane demarcation and initiated a traffic stop on that basis. At the time, there was no other traffic with which the target vehicle could potentially collide. . . .

After effecting the stop, Studin exited his cruiser, approached the passenger side of the vehicle, and observed [it] was occupied by two males. [Williams] was the passenger and was seated in the front of the vehicle with the driver. Studin asked the driver for his identification and asked to whom the vehicle was registered. 

The driver provided a New York driver's license and [said] the vehicle was rented by his passenger's girlfriend. . . . Studin noticed `an overwhelming odor of burnt marijuana coming from the car’ and observed `flakes of marijuana’ on [Williams’] clothing and on the floor. . . . Studin asked whether they had been smoking marijuana in the car, and [he] stated they had `rolled a blunt’ and smoked it as they were traveling north.

Studin asked about the purpose of their trip. [Williams said] he was confined to a wheelchair and they were traveling to Saint Albans . . . to retrieve a wheelchair for his use. Studin asked for identification from the [Williams], who denied having photo identification but [said] his name was `Christian Wilson.’ Studin then explained to the men that he stopped the vehicle because it had `drifted into the other lane.’ . . . The driver explained that he was considering changing lanes but decided not to.

U.S. v. Williams, supra.

Studin then “ordered” the driver to get out of the vehicle, after which the driver consented

to a search of his person and was placed in the front seat of the cruiser. In response to questions, the driver [said they] were from New York and . . . the trip was . . . to pick up a wheelchair. The driver further advised that the marijuana belonged to [Williams]. Studin asked for the driver's consent to search the vehicle. [He] consented . . .but [said] Studin should request [Williams’] consent as well because [his] girlfriend rented it.

VSP Sergeant Eric Albright arrived to assist. . . . After Studin advised him of the situation . . . Albright stated he had received an email describing an individual `from the New York City area that was traveling to the St. Albans area who was confined to a wheelchair.’ . . . He retrieved the email, which provided a description that matched the passenger and identified the person as Christopher Williams. As a result of these facts, Studin determined that the passenger had provided a false name and was actually [Williams].

At approximately 4:15 p.m., Studin went back to the vehicle and obtained [Williams’] written consent for a search of [it]. [He] signed the consent form as `Christian Wilson’ and [said] the marijuana belonged to the driver. Studin helped [Williams] exit and instructed him to leave his cell phone in the vehicle. Thereafter, law enforcement searched the vehicle's interior and discovered three cell phones: two iPhones and a flip phone. [Williams] claimed ownership of all three phones and did not consent to a search of them at that time.

U.S. v. Williams, supra.

After the officers searched the vehicle, Studin

confronted [Williams] with the information obtained from the email and [he] admitted his true identity. The driver was given a written warning for violating 23 Vermont Statutes Annotated § 1038. [Williams] and the driver were detained and transported to VSP's Brattleboro barracks.

U.S. v. Williams, supra.

Williams was searched at the barracks and the officers discovered

marijuana on his person. Studin processed [his] cell phones and observed multiple incriminating text messages stored therein. Studin [said] he did not manipulate the cell phones in order to access the messages as they were `clearly visible on the screen . . . without having to do anything to them.’ . . . This was a result of a notification system built into the iPhones that automatically displays missed calls and text messages on the main screen even when the phone is password protected and locked. 

Studin testified [at the hearing on the motion to suppress] that the iPhone screens should have been dark because they had not been in use for an extended period of time and he was unsure how [they] became illuminated such that the messages were visible. As for the flip phone, Studin opened [it] to determine whether it was on, at which point he observed additional messages. Studin did not take photographs of the text messages, but took notes and incorporated them into his report.

U.S. v. Williams, supra.

Officers also contacted

Detective Matthew Plunkett with the Northern Vermont Drug Task Force who reported that he had conducted a controlled purchase of heroin from [Williams] approximately nine months prior to the traffic stop as part of a federal investigation. Thereafter, a decision was made to charge [him] for the prior sale of heroin. [Williams] was formally arrested for that crime within an hour or two of the traffic stop.

U.S. v. Williams, supra.

After he was arrested, Williams was taken to a correctional facility where

Detective Plunkett took custody of his three cell phones. Plunkett pressed the power button on the iPhones to illuminate the screens and photographed the incriminating messages, but was unable to search the iPhones further as they were password protected. Plunkett also searched the flip phone, which was not password protected, and reviewed its text messages and call log. The messages . . . `had [evidentiary] value where people were talking about stuff  [Plunkett] believed to be drugs.’

U.S. v. Williams, supra.

On February 8, 2013, Williams was “charged federally with the May 29, 2012 distribution of heroin.”  U.S. v. Williams, supra. Because the federal authorities thought Williams

may have concealed narcotics in his anal cavity, [they] obtained a search warrant to examine [his] body, using evidence obtained from [the] initial searches of [his] cell phones in [their] warrant application. Following [Williams’] initial appearance, the magistrate judge authorized agents from the Drug Enforcement Agency to take [him] into custody for the execution of the search warrant at a local hospital. . . . No further contraband was ultimately recovered from [Williams] as a result of the search warrant.

U.S. v. Williams, supra. (For a similar warrant and search, check out this news story.)

While he was at the hospital, “`expressed interest in cooperating’” with law enforcement, which led a federal prosecutor to contact his lawyer, who said Williams “might be” interested in cooperating.  U.S. v. Williams, supra.  Discussions between them led to the prosecutor’s asking if Williams would consent to a search of his cell phones, and he agreed, providing “the passwords for his two iPhones, which were searched and” later returned to him.  U.S. v. Williams, supra.

In his motion to suppress, Williams claimed the stop violated Vermont law because “touching the passing lane on a public highway does not constitute a motor vehicle violation under Vermont law.”  U.S. v. Williams, supra. The prosecution claimed the “stop was justified because Studin had reasonable suspicion that the vehicle crossed the line in violation of 23 Vermont Statutes Annotated § 1038”, but the District Court Judge who has the case disagreed.  U.S. v. Williams, supra.  She found the vehicle “momentarily” touched a “passing lane demarcation”, which did not produce a failure to “remain entirely” in the proper lane.  U.S. v. Williams, supra.  So, she found the stop violated the 4^th Amendment which meant Williams was illegally seized.  U.S. v. Williams, supra.

Williams consented to the search of the vehicle after being illegally seized, so he argued his consent was the product of the illegal seizure and the evidence discovered should be suppressed as a “fruit of the poisonous tree.”  U.S. v. Williams, supra.  The prosecution claimed his “detention was proper because he twice provided a false name to authorities in an effort to deflect an investigation of his activities.”  U.S. v. Williams, supra.  The judge agreed, noting that during the traffic stop, Studin had

probable cause to arrest [Williams] for providing false information to a police officer based upon [his] identification of himself as `Christian Wilson’ and an email identifying a man who matched [his] description and travel plans as `Christopher Williams.’ . . .   Searching the vehicle was thus proper . . . because it was objectively reasonable to believethat  evidence of [Williams’] true identity may be discovered in the vehicle from items such as luggage tags, hotel invoices, credit cards, mail, or other documents bearing [his] name, even if law enforcement was more interested in evidence of other crimes. 

U.S. v. Williams, supra. 

That brings us to Williams’ argument that the officers’

post-arrest manipulation and inspection of his cell phones cannot be justified as part of a search incident to arrest because those searches lack a temporal proximity to his arrest and were not necessary for officer safety or to preserve evidence. He further argues that his subsequent consent to a search of his phones was tainted by the initial warrantless searches as well as by the use of evidence derived from the phones to obtain an intrusive search warrant of his body's cavities. 

U.S. v. Williams, supra. 

The prosecution argued, in response, that the officers’

initial searches of the cell phones' content were constitutional under [the Supreme Court’s decision in Arizona v. Gant], or, in the alternative, [Williams’] consent to a search of his phones five days after the initial search purged any conceivable taint.

U.S. v. Williams, supra. 

As Wikipedia notes, search incident to arrest is an exception to the 4^th Amendment’s default requirement that officers obtain a warrant before searching a place, a thing or a person. It allows an officer who has arrested someone to search the person and the area around the person; the justification is to find evidence to prevent it from being destroyed and/or to find weapons that could be used against the officer. You can read more about the exception in this prior post.  In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court narrowed the exception somewhat, holding that police can

search the passenger compartment of a vehicle, incident to a recent occupant's arrest (and therefore without a warrant) only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense of arrest.

Arizona v. Gant, supra. 

The judge in this case did not address the search incident issue, as such.  Instead, she found that

[a]ssuming arguendo that law enforcement's initial searches of [Williams’] cell phones were unlawful, [his] subsequent consent to the search of the cell phones was voluntary and purged of any arguable taint. Upon his lodging at a correctional facility, [Williams] expressed to law enforcement his desire to cooperate. In the five days that followed his arrest, [he] appeared before a magistrate judge, was appointed experienced counsel, and was advised of his rights. . . .

 [He] was accompanied by counsel and presented with the option of providing consent under specific terms to which he and his counsel agreed.  He was not forced to consent to the search or to provide the passwords that would permit it to take place. Instead, his decision to cooperate was a tactical one that he initiated. 

U.S. v. Williams, supra. 

So she held that “[b]ecause [Williams’] consent to search his cell phones was an act of free will untainted by the prior search, the exclusionary rule does not apply.”  The judge therefore denied his motion to suppress.  U.S. v. Williams, supra. 

The Taxi Driver, the GPS Tracker and the 4th Amendment

-->

This post examines an opinion a federal district court recently issues in a civil case: 

On May 31, 2013, plaintiff Hassan El–Nahal filed a complaint against defendants David Yassky, Commissioner Matthew Daus, Michael Bloomberg, and the City of New York alleging that the NewYork City Taxi and Limousine Commission (TLC) has violated 42 U.S. Code §1983 and the 4th Amendment of the United States Constitution . . . by using a global positioning system (GPS) device to track [his] whereabouts without probable cause or a search warrant. 

El-Nahal v. Yassky, 2014 WL 333463 (U.S. District Court for the Southern District of New York 2014).  

Both sides rather quickly filed cross-motions for summary judgment, i.e., El-Nahal filed a motion asking the District Court judge who has the case to award summary judgment for him and the defendants did the same, asking the judge to award summary judgment to them. El-Nahal v. Yassky, supra.  As Wikipedia explains, summary judgment is a judgment a court enters “for one party and against another party summarily, i.e., without a full trial.”  As Wikipedia also notes, to grant summary judgment for a party the court has to find that

1. there are no disputes of `material’ fact requiring a trial to resolve, and
2. in applying the law to the undisputed facts, one party is clearly entitled to judgment. 

It notes that a “material” fact is “one which, depending upon what the factfinder believes "really happened," could lead to judgment in favor of one party, rather than the other.”  So, each side is trying to avoid a trial on some/all of the issues in the case.

As to how the case arose, the opinion explains that the New York Taxi and Limousine Commission (TLC) is the agency charged with regulating and supervising the

transportation of persons by licensed vehicles for hire in New York City. . . . The TLC's responsibilities include regulating taxicab safety, design and comfort; reasonable rates of fare for taxi service; and the licensing of taxi drivers. . . . The TLC has the right to inspect books and records and to require the submission of any reports that it deems necessary. . . .

Since 1992, the TLC rules have required a TLC-licensed New York City taxi driver to create and maintain a trip record. . . . Until recently, drivers were required to keep a trip record in which they entered certain information, including: (1) at the start of each trip, the date, time, specific location, and number of passengers; (2) on completion of the trip, the destination, time, amount of fare, and any tolls paid; (3) the taxi's readings at the end of the shift; and (4) any toll bridges or tunnels used by the driver, whether or not with a passenger. . . .

The TLC currently mandates that all New York City taxis must be equipped with a Taxicab Technology System (`T–PEP’ or `TT’ system), which includes a GPS, a credit-card device, and monitors for the driver and passengers, and which automatically collects certain trip information, including the taxi license number, the taxi driver's license number, the location of trip initiation, the time of trip initiation, the number of passengers, the location of trip termination, the time of trip termination, the metered fare for the trip, and the distance of the trip. . . .Taxi drivers are required to create handwritten trip records if the T–PEP system fails to operate properly. . . .

Taxis are also equipped with a meter that displays the fare, surcharges, and the rate codes. . . . There are six rate codes, including trips within the city, trips to and from airports, trips beyond the city limits and to other counties, negotiated fares, and group rides. . . . At the start of each trip, the driver sets the rate by pushing a button on the meter. . . .

Among other requirements, taxi drivers are prohibited from charging a fare above the approved rates. . . . Penalties apply to various violations of the rules, including overcharging. . . .When a taxi driver is charged with a violation of any TLC rule, the TLC may . . . impose a penalty of license revocation, license suspension of up to six months, and/or a fine. . . .

[I]n 2007, before the technology mandate took effect, the TLC issued a `Statement of Basis and Purpose,’ which stated the reasons for its technology and GPS mandate. . . . The TLC made no mention in this statement (or elsewhere) of using GPS data to investigate or prosecute taxi drivers. . . . On its website, the TLC stated it would use the T–PEP technology to provide customer service improvements, and that it was `replacing the current hand-written trip sheets with automatic electronic trip sheets which are limited to collecting pick-up, drop-off, and fare information, all of which are already required.’ . . .

On March 12, 2010, the TLC issued an e-mail press release in which it claimed that 35,558 taxi drivers had illegally overcharged at least one passenger over a 26–month period by manually switching the taxi meter from Rate Code 1 (the default setting used for trips within the city) to Rate Code 4 (the rate that applies to out-of-city trips). . . . The TLC stated that it used `GPS technology installed in taxicabs’ to make this discovery. . . On March 14, 2010, the TLC issued a revised press release that stated that 21,819 drivers had overcharged passengers. . . .

On or around January 3, 2012, the TLC sent a letter to [El-Nahal] instructing him to appear at a hearing concerning overcharges. . . . [He] was found guilty after a hearing, and the [Administrative Law Judge] imposed fines totaling $550 and revoked his license. . . . The OATH Taxi and Limousine Tribunal appeals board reversed that ruling and reinstated plaintiffs license. . . . On remand, the TLC reinstituted some charges against [El-Nahal]. . . . [He] was again found in violation and his license was again revoked. . . . On appeal, the appeals tribunal again reversed. . . . Finally, [he] was found guilty for a third time, he again appealed, his conviction was again reversed, and his license was again restored. . . .

El-Nahal v. Yassky, supra. 

As Wikipedia explains, the 4^th Amendment bars the government (and the TLC is a government agency) from conducting unreasonable “searches” and/or “seizures.”  Therefore, to have a valid 4^th Amendment claim, El-Nahal had to show he had been the victim of a search and/or seizure that was “unreasonable. 

As I have noted in earlier posts, if there is no search or seizure, there is no 4^th Amendment violation. As I have also noted, and as Wikipedia explains, for someone to have been the target of a 4^th Amendment search, the government must have engaged in conduct that violated that the person believed, subjectively, was a “private” place or thing and society must be prepared to regard that belief as objectively reasonable. 

El-Nahal had two problems with his 4^th Amendment argument:  The first, as the opinion notes, was that he directed “much of his complaint and many of his arguments not to the collection of data through the T–PEP system but to the use of the data in administrative proceedings.”  El-Nahal v. Yassky, supra (emphasis in the original).

Logically, for El-Nahal to have been the victim of an “unreasonable” search carried out by the government, government personnel would have had to have intruded into data or a place that contained data either of which was “private” for 4^th Amendment purposes.  As the court pointed out, if the collection of the data did not constitute a “search,” then there would be no cognizable 4^th Amendment, i.e., no search, and El-Nahal’s claim would fail.  (Using the data might be considered a seizure if the government had taken data that belonged to El-Nahal from him, but the data at issue here clearly did not belong to El-Nahal.  If the government did not take his property, there would be no seizure.)

Or, as the federal judge who has this case explained, a 4^th Amendment search

‘occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.’ Maryland v.Macon. 472 U.S. 463 (1985). This inquiry `embraces two discrete questions. The first is whether the individual . . .  has exhibited an actual (subjective) expectation of privacy—whether . . . the individual has shown he seeks to preserve [something] as private. The second is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable. . . .’ U.S. v. Knotts. 460 U.S. 276 (1983). . . . 

Here, as the [U.S. Court of Appeals for the 2d Circuit] has already ruled, El-Nahal had no reasonable expectation of privacy in the T–PEP data at issue. See Buliga v. New York City Taxi & Limousine Commission, 324 Fed. Appx. 82 (2009).  Local law requires the collection of the data. . . . Prior to the installation of the T–PEP system, drivers were required to create `trip sheets’ containing the same information. . .

Furthermore, `[t]axicabs in New York City have long been subject to regulation by the TLC . . . and the TLC maintains the right to inspect books and records, including the trip sheets. . . . Accordingly, [El-Nahal] cannot show a reasonable expectation of privacy in any of the information collected under the system. . . .

El-Nahal v. Yassky, supra. 

The judge then analyzed El-Nahal’s claim and its defects:

Essentially, [he] alleges . . . he reasonably expected defendants would `not use GPS tracking as a prosecutorial tool.’ . . . That . . . is legally irrelevant to the 4th Amendment analysis here. The subsequent use of data does not create a privacy interest in the information that does not otherwise exist. See Maryland v. Macon, supra (`The mere expectation that the possibly illegal nature of a product will not come to the attention of the authorities . . . is not one society is prepared to recognize as reasonable). . . .

The only expectation that is relevant  . . . is an expectation of privacy in the data themselves. . . . For the reasons set forth above, there is no reasonable expectation of privacy in such information. . . . Regulations not only mandate use of the T–PEP system but also require taxi drivers to create handwritten trip records if the system fails to operate, and have long required drivers to keep records of their activity. . . .

[El-Nahal] had no reasonable expectation of privacy in the data collected through the T–PEP system-regardless of the ends to which defendants ultimately used such data.

El-Nahal v. Yassky, supra. 

Finally, the judge noted that “[e]ven assuming arguendo that a search occurred because [El-Nahal] had a reasonable expectation of privacy in the collected data or because defendants physically trespassed on [his] property, [his] 4th Amendment claim still must fail, because any such search was reasonable under the circumstances.“ El-Nahal v. Yassky, supra.  She pointed out that “[w]hile reasonableness generally requires obtaining a warrant, a search unsupported by probable cause and a warrant can be reasonable and thus constitutional where `special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.’” El-Nahal v. Yassky, supra (quoting Vernonia School District v. Acton, 515U.S. 646 (1995)).

El-Nahal v. Yassky, supra. 

4^th Amendment special-needs analysis requires “the examination of three factors: `(1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs’”.  El-Nahal v. Yassky, supra.  She then found that under this standard, the collection of the data at issue here was reasonable, i.e., did not violate the 4^th Amendment. El-Nahal v. Yassky, supra. 

First, [El-Nahal] had a low privacy interest in the data collected through the T–PEP system, and the governmental intrusion was of a low degree. The data relate directly to [his] work as a taxi driver, and regulations already required [him] to keep track of the information collected through the system. . . . Additionally, taxi drivers have a low privacy interest because `the taxi industry is pervasively regulated by the Commission.’ Statharos v. New York City Taxi & Limousine Comm'n, 198 F.3d 317 (U.S. Court of Appeals for the 2d Circuit 1999); see Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602 (1989) (finding a low privacy interest for employees who participate an `industry that is regulated pervasively’). . . .

El-Nahal v. Yassky, supra.  The judge also found that the government interest in

collecting the data is substantial, and the installation of the T–PEP system and collection of data through the system are an effective way to address that interest. `[T]he City of New York, acting through the TLC, “has a substantial interest in promoting taxi customer service, taxicab ridership, and passenger and driver safety.”’ Buliga v. New York City Taxi & Limousine Commission, supra (quoting (quoting Alexandre v. New York City Taxi & Limousine Commission, 2007 WL 2826952 (U.S. District Court for the Southern District of New York)).

The City's collection of T–PEP data is directly related to those goals; for example, the City can use the data to ensure taxi drivers are driving their vehicles the minimum amount required by regulations or to ensure drivers are not systematically overcharging passengers. Meanwhile, because defendants only collect information related to the locations and times of the start and end of each trip and the trip distance, and only collect information while drivers are on duty . . ., there is little likelihood [they] will obtain personal information through this system-thus rendering it an effective means of addressing the governmental need in question. . . .

El-Nahal v. Yassky, supra. 

Since the judge found (i) that there was no 4^th Amendment search or (ii) if there was, then the search was “reasonable” and so satisfied the constitutional requirements, she granted the defendants’ motion for summary judgment an denied El-Nahal’s motion. El-Nahal v. Yassky, supra.  She also ordered the Court Clerk “to terminate this action.”  El-Nahal v. Yassky, supra.