Most sites on the web are at least faintly familiar with the implementation of legal regulations related to their sites. Most, however, have never heard of the California Catch-22.
Most sites tend to view complying with legal regulations as a somewhat amorphous subject. You know you are supposed to do something, but are not particularly sure why or what to do. This leads to the rather humorous situation where many sites have terms and conditions that are completely inapplicable the what they are doing and also look startlingly similar to terms and conditions found on other sites. One might even imagine a bit of “cut and paste” was going on, but who am I to say!
Much of the confusion is understandable. It comes from the lack of clear legal directives by the federal government. In most areas, you get vague “suggestions” put forth by an impotent FTC.
Interestingly, one state has taken over for the federal government – California. Because the right of privacy is actually mentioned in the constitution of the state, unlike in the federal version, the state has passed numerous laws regulating how sites must handle visitors information from a privacy perspective, sales information, security efforts and so on. Frankly, it is a pretty amazing that a group of state politicians managed to pull it off. There are laws ranging from how a privacy policy must be set up to requirements that you disclose identify theft events to the media. This is why you see major companies issuing press releases about security breaches leading to identify theft.
As a site owner located outside of California, you are probably wondering why you should care about the laws of California. Well, you better be in compliance because California has a unique way of defining what sites the laws apply to. Nearly all of the relevant California legislation contains provisions defining jurisdiction by the visitor, not the site.
So, what does this mean in plain English? You must comply with the laws if you have any customers that are residents of California or from which you obtain certain types of information. If you make a sale to a California resident, you must comply. If you collect the name, email address and so on as part of creating a newsletter mailing list, you must comply!
Given the size of the California population, it is the rare site that never makes a sale or collects information from a California resident. In short, you need to comply with everything from the California Online Privacy Protect Act to the various identify theft prevention and notice regulations. Fail to do so, and it can come back to haunt you when things go wrong.
Thursday, August 2, 2007
Issues With Trademarking Your Domain Name
Protecting intellectual property rights should be a critical step for any business. With an online business, protecting a domain name is all the more critical.
Nothing is more aggravating than having someone infringe upon your domain name. The question for many sites, then, is how to go about protecting the domain. Filing for a trademark is one of the more popular and effective methods, but it is important to understand there are some issues that can come up.
First and foremost, a domain name may only be trademarked if it is more than just an address pointing people to a site. This is often shown by matching the domain name to the actual name of the business and then incorporating it into the page of the site. Let’s look at a classic example.
Google is obviously a distinct trademark. The title “Google” is a trademarkable domain for two reasons. First, it is distinct. Second, it is both the domain name and the name of the business. Let’s assume Google was located at a different domain. Say the domain was se3598xeifp[dot]com. This new domain would not be trademarkable because it did nothing more than point the viewer to the site in question. The phrase “Google” still would.
Another area that causes some confusion is the suffix of the domain. The suffix is the ending, usually com or net. Can you register a domain and include these suffixes? Many are surprised to learn that it is fairly difficult to do so. Why? Well, none of us have any exclusive rights to the “com”, “net” or other suffixes out there. As such, the Trademark Office tends to dislike allowing their inclusion in marks. It can be done, but you should expect to wrestle with them over it.
A final area of some confusion has to do with geographic descriptions. If you use a domain with a city, state or country in it, you are going to have problems. The Trademark Office does not allow people to poach upon municipalities or other defined areas. Sorry, but you can’t register NewYorkCity[dot].com.
At the end of the day, trademarking your domain name makes absolute senses if you can meet the relevant requirements. Said protection can be a powerful tool in helping you fight off third parties trying to poach on your name and reputation.
Nothing is more aggravating than having someone infringe upon your domain name. The question for many sites, then, is how to go about protecting the domain. Filing for a trademark is one of the more popular and effective methods, but it is important to understand there are some issues that can come up.
First and foremost, a domain name may only be trademarked if it is more than just an address pointing people to a site. This is often shown by matching the domain name to the actual name of the business and then incorporating it into the page of the site. Let’s look at a classic example.
Google is obviously a distinct trademark. The title “Google” is a trademarkable domain for two reasons. First, it is distinct. Second, it is both the domain name and the name of the business. Let’s assume Google was located at a different domain. Say the domain was se3598xeifp[dot]com. This new domain would not be trademarkable because it did nothing more than point the viewer to the site in question. The phrase “Google” still would.
Another area that causes some confusion is the suffix of the domain. The suffix is the ending, usually com or net. Can you register a domain and include these suffixes? Many are surprised to learn that it is fairly difficult to do so. Why? Well, none of us have any exclusive rights to the “com”, “net” or other suffixes out there. As such, the Trademark Office tends to dislike allowing their inclusion in marks. It can be done, but you should expect to wrestle with them over it.
A final area of some confusion has to do with geographic descriptions. If you use a domain with a city, state or country in it, you are going to have problems. The Trademark Office does not allow people to poach upon municipalities or other defined areas. Sorry, but you can’t register NewYorkCity[dot].com.
At the end of the day, trademarking your domain name makes absolute senses if you can meet the relevant requirements. Said protection can be a powerful tool in helping you fight off third parties trying to poach on your name and reputation.
Get Sued By Competitors for Lying On Your Privacy Policy
Many sites put up privacy policies without giving them much thought. Once up, they are often forgotten about even if the policy is later changed. This can lead to disaster as one recent case showed.
You probably are not surprised to learn that lying in your privacy policy can get you into trouble. You will definitely be surprised to learn, however, that your competitors could be the parties suing you. Even worse, they could sue you for millions and win! How could this be? It all boils down to competition. In this case, claims of unfair competition.
The Lanham Act is a federal law that established rules related to unfair competition. Part of the language of the Act prohibits businesses from using false statements that a consumer may use in deciding to use the business instead of a competitor. This can include your privacy policy. If you state in your privacy policy that you do not share visitor information with third parties, but then do so, you are making the false statement called for in the Lanham Act.
For this to get you in trouble, however, the false statement must give you an advantage over competitors, to wit, your competitors admit they give visitor information to others. Making the determination in court is a question of fact, which means a jury will decide. Regardless, it is a risky proposition.
Getting rid of the technical legal jargon, the use of the Lanham Act in relation to privacy policies on sites is all about privacy. Between phishing, email and other online scams, many people are nervous about providing their personal information to sites. Along with this heightened public awareness comes a new unique selling position for sites – assuring privacy! Simply put, more people are likely to use a site that does not share their information with third parties than one that admits it does. If false assurances are given, the advantage is gained without merit, which is where a claim under the Lanham Act comes in.
You probably are not surprised to learn that lying in your privacy policy can get you into trouble. You will definitely be surprised to learn, however, that your competitors could be the parties suing you. Even worse, they could sue you for millions and win! How could this be? It all boils down to competition. In this case, claims of unfair competition.
The Lanham Act is a federal law that established rules related to unfair competition. Part of the language of the Act prohibits businesses from using false statements that a consumer may use in deciding to use the business instead of a competitor. This can include your privacy policy. If you state in your privacy policy that you do not share visitor information with third parties, but then do so, you are making the false statement called for in the Lanham Act.
For this to get you in trouble, however, the false statement must give you an advantage over competitors, to wit, your competitors admit they give visitor information to others. Making the determination in court is a question of fact, which means a jury will decide. Regardless, it is a risky proposition.
Getting rid of the technical legal jargon, the use of the Lanham Act in relation to privacy policies on sites is all about privacy. Between phishing, email and other online scams, many people are nervous about providing their personal information to sites. Along with this heightened public awareness comes a new unique selling position for sites – assuring privacy! Simply put, more people are likely to use a site that does not share their information with third parties than one that admits it does. If false assurances are given, the advantage is gained without merit, which is where a claim under the Lanham Act comes in.
What is Cybersquatting and What Can Be Done About It? ACPA or UDRP?
Have you ever had a third party register a domain name that is either exactly the same or very similar to your trademark? If so, it may be a Cybersquatting issue. Cybersquatting is registering, trafficking in, or using a domain name with a bad-faith intent to profit from the goodwill of a trademark belonging to someone else. To address this issue, Congress enacted what is known as the Anticybersquatting Consumer Protection Act ("ACPA"). The ACPA amended the Lanham Act by providing trademark owners with a civil remedy against cybersquatting.
If you’re not sure how this may affect your business, let’s run through some examples. The typical scenario is that the name of your product, or your company name is a registered trademark (or a strong common law trademark). However, you failed to register the domain name for whatever reason. Joe Schmo cybersquatter decides to beat you to the punch and registers the domain name of your trademark. He may have even registered plural versions or misspellings of your trademark as well (this is known as typosquatting). Joe Schmo cybersquatter is simply holding the domain name for ransom hoping to sell it back to you for a nice profit, or he may decide to keep domain name knowing that he will get a lot of traffic to his websites. The cybersquatter may sell products similar to yours or is simply engaged in affiliate marketing and makes money off of the clicks on his website. These situations can obviously cause consumer confusion and can easily cause lost profits to your company and dilution of your trademark(s) as well.
One avenue of recourse is filing an ACPA claim in federal court. The Plaintiff in an Anti-Cybersquatting suit must establish:
1. The Defendant has a bad faith intent to profit from the mark, including a defendant name which is protected as a mark; 2. registers, traffics in, or uses a domain name that--
(I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or
(III) is a trademark, word, or name protected by reason of 18 U.S.C. § 706 (the Red Cross, the American National Red Cross or the Geneva cross) or 36 U.S.C. § 220506
It’s important to distinguish cases in which the cybersquatter is obviously acting in bad faith, from situations in which the individual simply registered the domain name with the intent of doing something else with it that is unrelated to trademark owner’s goods and/or services.
The ACPA excludes a finding of bad faith where the domain name holder reasonably believed that the use was “fair use” or otherwise lawful. Accordingly, bad faith is the biggest component in an ACPA claim. So what is bad faith? There are several elements the federal courts will consider such as:
The trademark ownership rights held by the mark owner; The closeness of the domain name and the cybersquatter’s name; The cybersquatter’s commercial use of the domain name for access to a web site; The cybersquatter’s intent to divert web traffic from the mark owner; The cybersquatter’s offer to sell the domain name to the mark owner; Whether the cybersquatter gave misleading information in registering the domain name; and Similar or repeated cybersquatting on other marks.
For example, in Hasbro Inc. v. Clue Computing Inc. [66 F. Supp.2d 177 (D. Mass 2000)], the district court held that Clue Computing’s use of its registered domain name clue.com, was in fair use, despite Hasbro’s existing registration of the trademark “Clue” for its famous board game. The two company’s fields in which the names were used were not related; Clue Computing had registered the disputed domain name first, used it in legitimate commerce, and not attempted to sell the domain name to Hasbro.
UDRP or ACPA?
So if you’ve concluded that someone has cybersquatted one of your trademarks, should you file a ACPA lawsuit? Before doing so, you should consult with your intellectual property attorney about other avenues such as the Uniform Domain Name Dispute Resolution Policy (“UDRP“). UDPR is an ICANN-approved arbitration that resolves domain name disputes submitted to ICANN for resolution. Very often (nearly 75% of UDRP cases) results in the cancellation of the cybersquatter’s domain name registration. The standards to establish cybersquatting in UDRP cases for wrongful registration is very similar to ACPA’s standards. Furthermore, UDRP proceedings are typically much less expensive and quicker (about 2-3 months total compared to ACPA which is federal litigation and may take years if not settled before trial). Another advantage with the UDRP is that it’s well suited for international domain name disputes because the hearings are ex parte (based only on filed documents; no witnesses or parties are present). UDRP can be used in addition to an ACPA litigation or possibly done before or after an ACPA ruling because UDRP rulings are not binding upon the courts. Also, UDRP findings may be appealed. This is a departure from most arbitration practice (www.icann.org/udrp).
However, the remedies in UDRP proceedings are limited to only transfers of the domain name. Compared to an ACPA litigation, the Plaintiff may obtain monetary damages, attorney’s fees and costs (in exceptional cases), and/or an injunction, in addition to the cancellation or transfer of the improper web domain name to the original owner. Furthermore, under ACPA the Plaintiff has the option of suing for statutory damages for $1,000 to $100,000, as the court deems just under the circumstances.
If you’re not sure how this may affect your business, let’s run through some examples. The typical scenario is that the name of your product, or your company name is a registered trademark (or a strong common law trademark). However, you failed to register the domain name for whatever reason. Joe Schmo cybersquatter decides to beat you to the punch and registers the domain name of your trademark. He may have even registered plural versions or misspellings of your trademark as well (this is known as typosquatting). Joe Schmo cybersquatter is simply holding the domain name for ransom hoping to sell it back to you for a nice profit, or he may decide to keep domain name knowing that he will get a lot of traffic to his websites. The cybersquatter may sell products similar to yours or is simply engaged in affiliate marketing and makes money off of the clicks on his website. These situations can obviously cause consumer confusion and can easily cause lost profits to your company and dilution of your trademark(s) as well.
One avenue of recourse is filing an ACPA claim in federal court. The Plaintiff in an Anti-Cybersquatting suit must establish:
1. The Defendant has a bad faith intent to profit from the mark, including a defendant name which is protected as a mark; 2. registers, traffics in, or uses a domain name that--
(I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or
(III) is a trademark, word, or name protected by reason of 18 U.S.C. § 706 (the Red Cross, the American National Red Cross or the Geneva cross) or 36 U.S.C. § 220506
It’s important to distinguish cases in which the cybersquatter is obviously acting in bad faith, from situations in which the individual simply registered the domain name with the intent of doing something else with it that is unrelated to trademark owner’s goods and/or services.
The ACPA excludes a finding of bad faith where the domain name holder reasonably believed that the use was “fair use” or otherwise lawful. Accordingly, bad faith is the biggest component in an ACPA claim. So what is bad faith? There are several elements the federal courts will consider such as:
The trademark ownership rights held by the mark owner; The closeness of the domain name and the cybersquatter’s name; The cybersquatter’s commercial use of the domain name for access to a web site; The cybersquatter’s intent to divert web traffic from the mark owner; The cybersquatter’s offer to sell the domain name to the mark owner; Whether the cybersquatter gave misleading information in registering the domain name; and Similar or repeated cybersquatting on other marks.
For example, in Hasbro Inc. v. Clue Computing Inc. [66 F. Supp.2d 177 (D. Mass 2000)], the district court held that Clue Computing’s use of its registered domain name clue.com, was in fair use, despite Hasbro’s existing registration of the trademark “Clue” for its famous board game. The two company’s fields in which the names were used were not related; Clue Computing had registered the disputed domain name first, used it in legitimate commerce, and not attempted to sell the domain name to Hasbro.
UDRP or ACPA?
So if you’ve concluded that someone has cybersquatted one of your trademarks, should you file a ACPA lawsuit? Before doing so, you should consult with your intellectual property attorney about other avenues such as the Uniform Domain Name Dispute Resolution Policy (“UDRP“). UDPR is an ICANN-approved arbitration that resolves domain name disputes submitted to ICANN for resolution. Very often (nearly 75% of UDRP cases) results in the cancellation of the cybersquatter’s domain name registration. The standards to establish cybersquatting in UDRP cases for wrongful registration is very similar to ACPA’s standards. Furthermore, UDRP proceedings are typically much less expensive and quicker (about 2-3 months total compared to ACPA which is federal litigation and may take years if not settled before trial). Another advantage with the UDRP is that it’s well suited for international domain name disputes because the hearings are ex parte (based only on filed documents; no witnesses or parties are present). UDRP can be used in addition to an ACPA litigation or possibly done before or after an ACPA ruling because UDRP rulings are not binding upon the courts. Also, UDRP findings may be appealed. This is a departure from most arbitration practice (www.icann.org/udrp).
However, the remedies in UDRP proceedings are limited to only transfers of the domain name. Compared to an ACPA litigation, the Plaintiff may obtain monetary damages, attorney’s fees and costs (in exceptional cases), and/or an injunction, in addition to the cancellation or transfer of the improper web domain name to the original owner. Furthermore, under ACPA the Plaintiff has the option of suing for statutory damages for $1,000 to $100,000, as the court deems just under the circumstances.
Legal Music Downloading
Internet Music downloads have come a long way in a small amount of time. Just a few years ago music companies and individual artist were in an uproar over music download sites. Music download sites such as Napster allowed online users to share and download music for free. Many individual citizens that would never consider doing something illegal figured it was okay to get the music for free and stopped buying it in stores!.
The trend became so popular record sales took a nose dive and companies and artist were out of millions in potential revenue. The music industry fought back and Napster as well as similar sites were accused of stealing music, and forced to close up their businesses.
They may have been down but they were not out for the count! Napster and similar websites revamped and came back this time offering one hundred percent legal music downloads and still free to join.
Legal music downloads are becoming more and more popular due to the rise of the MP3 player. The digital revolution made buying legal music downloads a must for many people. People no longer feel its okay to get music for free especially with the risk of persecution. This new attitude has helped the industry continue to expand. Some people still choose to get free music downloads through illegal means but more often than not they pay the price.
There are still many Internet sites that offer music for free. But as the old adage goes you get what you pay for. This “free” music comes with a very heavy price. Most of it is littered with spyware and viruses that could cause permanent damage to your computer. Every single time you download music from such sites you are putting your computer at risk and you could even have charges filed against you for stealing music.
The trend became so popular record sales took a nose dive and companies and artist were out of millions in potential revenue. The music industry fought back and Napster as well as similar sites were accused of stealing music, and forced to close up their businesses.
They may have been down but they were not out for the count! Napster and similar websites revamped and came back this time offering one hundred percent legal music downloads and still free to join.
Legal music downloads are becoming more and more popular due to the rise of the MP3 player. The digital revolution made buying legal music downloads a must for many people. People no longer feel its okay to get music for free especially with the risk of persecution. This new attitude has helped the industry continue to expand. Some people still choose to get free music downloads through illegal means but more often than not they pay the price.
There are still many Internet sites that offer music for free. But as the old adage goes you get what you pay for. This “free” music comes with a very heavy price. Most of it is littered with spyware and viruses that could cause permanent damage to your computer. Every single time you download music from such sites you are putting your computer at risk and you could even have charges filed against you for stealing music.
iPhone Download Services - Are They Legal?
Since Napster revolutionized the file sharing industry in 1999, peer to peer services have been popping up all over. Movie sharing services were soon to follow with services such as Bittorrent as broadband capabilities spread. With the recent introduction of the iPhone, many iPhone peer to peer networks have come about. The question lingering in many consumers minds is... are these iPhone download services legal? In the following paragraphs, we'll discuss what is legal and what isn't, as well as why.
Ok, so getting to the initial point of the article, are these iPhone download services legal? In short, there is a lot of recent precedence that says they're not illegal. So now you're saying, "but I thought file sharing was a huge no-no?" Well that depends on a couple of things, how you use the technology, as well as the topology of the file sharing network. Liabilities fall on different parties in each case. You may have noticed the hype, the buzz, the hoopla, of peer to peer filing sharing has calmed down recently. Why?
Over the past few years, there have been several lawsuits involving file sharing software such as Morpheus, Grokster, Kazaa, the list goes on. Because of this, now there is plenty of legal precedence stating that the software itself is not illegal. How can this be? To answer this question, we have to explore how this software works, and compare it to how peer to peer used to work.
So, what's legal and what isn't? With the case of the aforementioned Napster, their network was set up in a way where a centralized server, or a central point where every search goes, was responsible for all song requests. The server would then send back a list of references where the user could download his or her music. Since the Napster assets were involved in every search, they were actively participating in the file sharing process. This got them in a lot of trouble. This is not how the iPhone download services at set up.
Now you're saying, ok ... so what's the legal way to do it? Here's your answer. A decentralized file sharing network is a peer to peer network not unlike a centralized network, with one KEY difference. As the name suggests, there is no central server, which means, if the software developer turns of his or her computer, the network can continue to run seamlessly, because the software does not rely on the centralized server to operate. The computers in the peer to peer network that have the software running send out the file references. This is way around the above problem. There have been many court cases in recent years citing that this type of file sharing network does nothing illegal.
The iPhone download services in question are all developed using the decentralized peer to peer file sharing topology described above, meaning the software is 100% legal for the company to distribute. There is one more question to answer however. How can YOU safely use the distributed software. Read on to find out.
The way to get in trouble with file sharing is by sharing hundreds or even thousands of different files. The reason behind this is because if you do that, everyone on the entire network has access to your shares, which means a lot of distributed material from your IP address. How do you stay safe with these iPhone download services? Simple. Disable your file sharing, or if your software won't allow it, simply move your downloads to a different folder. This will make sure you are not sharing all of your files with the rest of the peer to peer network and you'll be in the clear.
You'll also want to run a virus check on the files you download. With peer to peer networks, the developers don't have much control over what files are shared on their networks so sometimes an occasional spyware or trojans will be implanted in the media files. Run virus checks before installing your files on your brand new iPhone.
Take the above precautions and you'll have no trouble with iPhone download services and you'll be well on your way to making your iPhone that much better! I hope this answered any questions you may have had. To find out more about these services, check out the link below. Thanks for reading!
Ok, so getting to the initial point of the article, are these iPhone download services legal? In short, there is a lot of recent precedence that says they're not illegal. So now you're saying, "but I thought file sharing was a huge no-no?" Well that depends on a couple of things, how you use the technology, as well as the topology of the file sharing network. Liabilities fall on different parties in each case. You may have noticed the hype, the buzz, the hoopla, of peer to peer filing sharing has calmed down recently. Why?
Over the past few years, there have been several lawsuits involving file sharing software such as Morpheus, Grokster, Kazaa, the list goes on. Because of this, now there is plenty of legal precedence stating that the software itself is not illegal. How can this be? To answer this question, we have to explore how this software works, and compare it to how peer to peer used to work.
So, what's legal and what isn't? With the case of the aforementioned Napster, their network was set up in a way where a centralized server, or a central point where every search goes, was responsible for all song requests. The server would then send back a list of references where the user could download his or her music. Since the Napster assets were involved in every search, they were actively participating in the file sharing process. This got them in a lot of trouble. This is not how the iPhone download services at set up.
Now you're saying, ok ... so what's the legal way to do it? Here's your answer. A decentralized file sharing network is a peer to peer network not unlike a centralized network, with one KEY difference. As the name suggests, there is no central server, which means, if the software developer turns of his or her computer, the network can continue to run seamlessly, because the software does not rely on the centralized server to operate. The computers in the peer to peer network that have the software running send out the file references. This is way around the above problem. There have been many court cases in recent years citing that this type of file sharing network does nothing illegal.
The iPhone download services in question are all developed using the decentralized peer to peer file sharing topology described above, meaning the software is 100% legal for the company to distribute. There is one more question to answer however. How can YOU safely use the distributed software. Read on to find out.
The way to get in trouble with file sharing is by sharing hundreds or even thousands of different files. The reason behind this is because if you do that, everyone on the entire network has access to your shares, which means a lot of distributed material from your IP address. How do you stay safe with these iPhone download services? Simple. Disable your file sharing, or if your software won't allow it, simply move your downloads to a different folder. This will make sure you are not sharing all of your files with the rest of the peer to peer network and you'll be in the clear.
You'll also want to run a virus check on the files you download. With peer to peer networks, the developers don't have much control over what files are shared on their networks so sometimes an occasional spyware or trojans will be implanted in the media files. Run virus checks before installing your files on your brand new iPhone.
Take the above precautions and you'll have no trouble with iPhone download services and you'll be well on your way to making your iPhone that much better! I hope this answered any questions you may have had. To find out more about these services, check out the link below. Thanks for reading!
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