TechLaw

Lulu.com lost its bid for an injunction against Hulu.com last week, though in the process Lulu might have secured admissions further limiting the prospects of the much-maligned Hulu venture.

Hulu is the NBC- and News Corp.-funded video distribution site that, some say, is already doomed to failure. NBC executives said last weekend that they were pulling their material entirely from YouTube in favor of distribution on their own site, Hulu. The NBC distribution arrangement is not an exclusive one and Hulu is going to have to start from scratch generating traffic, so right from the beginning Hulu has its work cut out for it.

The Lulu lawsuit promises to make matters worse for Hulu. In papers opposing Lulu's motion for a preliminary injunction shuttering the site, Hulu's lawyers promised to stay out of the user-generated content business. At least for now.

Lulu, online self-publishing service that permits users to publish text, audio, and video (at lulu.tv), alleged in a trademark and cyberpiracy suit against Hulu that their names were confusingly similar and that Lulu and Hulu were in the business: distribution of user-generated content. Lulu alleged that Hulu -- which is still in beta and hasn't done anything yet -- will offer user-uploaded content just like Lulu. Lulu argued that it will be "overrun by the massive resources of Fox and NBC-Universal." Worse, Internet users will assume that Lulu, not Hulu, is the trademark infringer, Lulu's attorneys claimed. Lulu noted that Hulu's trademark registration application covered a wide selection of media businesses and that Hulu's chief executive officer declared in discovery that Hulu intended to engage in all the lines of business mentioned in its trademark registration application.

However, the court said that Lulu was making too much from this evidence. It cited for support a statement in Hulu's brief that "Hulu's business [will be] focused exclusively on premium content -- television shows and films -- via the internet, and it will do that -- and only that -- on launch." With this assertion in mind, the court decided that Lulu had nothing immediate to fear from Hulu, and it denied the injunction for lack of a showing of irreparable harm to Lulu.

The case is Lulu Enterprises v. N-F Newsite a/k/a Hulu LLC, No. 5:07-cv-347 (E.D.N.C. Oct. 19. 2007).