Legal News

New Term Based on Trademark

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I was talking with a friend today about a product/treatment that has become super-popular in the US. Jokingly, I added an -ing to the end of the term, and it sounded like it could be a commonly used term. In fact, I may have heard it used before, which is why I thought of it in the first place There are close to 5,000 Google hits for the exact word that I thought I just made up. Out of curiosity, I did a Whois search, and the new term is available in the .com.
When it comes to trademarks, I stay as far away as possible from registering non-generic terms or phrases. At what point does a trademark become a common term and acceptable to use? As much as “Googling” someone is a common term, they actively protect their trademark, and I know this factors into trademark law. I am not going to register the name, but am interested in knowing what the legalities are.

Electronic Frontier Foundation Opposes Snowe Legislation

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As first reported by Mike and Sahar, the Electronic Frontier Foundation has voiced their opposition to the recently proposed Snowe APCPA legislation. According to their official website, the EFF is a non-profit organization that “has championed the public interest in every critical battle affecting digital rights.
From what I have been reading elsewhere, not only would this proposed bill be detrimental to small businesses who own domain names, but it could also hurt the First Amendment rights of Americans who express their view on the Internet. As people continue to examine this bill and its implications, I hope they realize just how impactful this would be on anonymous free speech and domain ownership.

Report: Snowe Bill "Trademark Legislation on Steroids"

From ComputerWorld:

An antiphishing bill that was introduced in the U.S. Senate last week could end up being used by large holders of trademarks to unfairly wrest legitimate domain names away from small businesses and individuals, according to a trade group that represents domain name investors and so-called direct search companies.

Check out ComputerWorld for the entire article.

I have spent thousands of dollars developing my domain names in addition to the cost of acquiring these names, and this bill has the potential to make it easy for companies to take them from me without much trouble. I have been careful acquiring domain names that do not infringe on the marks of other companies, but in the end, I could get burned because of this legislation.   It simply isn’t fair to small-time entrepreneurs like myself.
From what I can tell, the Internet Commerce Association is our best chance at getting the bill changed. They have a great staff working to protect the rights of people in the domain industry, and we need to support them. Please consider becoming a member of the ICA or making a (tax deductible) contribution. Now is the time we need to step up and organize.

Cuba-Related Websites Shutdown; Domains Taken

In this morning’s New York Times, there’s an article about an English travel agent who owned several Cuba-related domain names which were shut down by his registrar eNom, due to their listing on the US Treasury Department’s Office of Foreign Assets Control (OFAC). While owning and operating these websites on his own soil is legal, since they were being managed by eNom, a US-based domain registrar, eNom had to take possession of the domain names and essentially put the owner out of business.
While I am not going to debate the merits of this decision by the Treasury Department, I do think it is important for everyone to take a few moments and check to see where their domain registrar is located. Just a few months ago, a similar situation occurred with Internet gaming giant Bodog, whose domain names were taken and awarded to a litigant who filed suit in the US. While the situation was different then, it still shows that a US government decision or a ruling in a US court could potentially lead to losing domain names.
When doing business in another country, it is important to know that country’s laws related to your business.   Since many non-Americans who own domain names are doing business with American-based companies, it is important to know US law when it comes to domain names and online activities. If you should have any questions related to domain name law, I urge you to contact an attorney.

ICA Response to APCPA

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I am in Florida for an extended weekend and a meeting, but I wanted to post a couple of links for you to see while I am away.
From DNJournal:

There are parties searching for a way to change laws so they can more easily take domain assets they have no right to away from their current owners. The easiest way to do that is to get language favoring their agenda slipped into an otherwise well-intentioned bill like this that would normally sail through the legislative process with little scrutiny. The dangerous language gets inserted in such a bill through lobbying efforts by people who want to remove current barriers that keep them from grabbing domains they are not entitled to. Combating this sort of legislative sleight of hand is exactly why the Internet Commerce Association was formed and why we think it is critical for domain owners to support the organization. Your very livelihood could be at stake in the legal battles over your assets that are just now getting underway.

Also, Mike Berkens posted the ICA response to the proposed Anti-Phishing Consumer Protection Act of 2008. As stated above, the language in the Act could pose a very serious and very real threat to the health of the domain industry. I am not one for blowing smoke or taking political action, but this is something we should all take seriously.
Whether you have great generic domain names or average domain names it doesn’t matter. If super generic domain names become a target – as many people believe will happen if this bill is passed as is – the value of all domain names will drop significantly due to the risk of owning them. The problem I see is that this language is lumped into a consumer and election-friendly bill that will surely be passed. Who doesn’t want to stop phishing? HOWEVER, we need to make sure this bill is changed before it is passed. We need to protect our assets. If some of the big chips fall, you better believe this will impact your business (assuming you own domain names).
I am a Professional Member of the ICA and I will continue to give what I can. I am still selling my two Australian beach domain names with the $5,000 margin going entirely to the ICA from the buyer (who can get a deduction for it). No matter whether you can contribute $100 or $25,000, you need to join the ICA and help protect your domain ownership rights.

More on Anti-Phishing Legislation

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Thank you to Larry Fischer at DirectNavigation.com for analyzing and posting a link to this CNET article about the proposed new Anti-Phishing legislation. Essentially the CNET article discusses the reasons why this legislation is redundant and unnecessary. It doesn’t touch on the fact that the language in the bill could be detrimental to generic domain owners and could subject them to harsh penalties.
As I said yesterday, the Internet Commerce Association is working on a response to this. As far as I am aware, they are the only group working on behalf of the domain investment community. At first glance, the bill looks like it will be helpful to consumers, but upon close review, the language could and probably will hurt the domain industry. We could be in serious trouble if the bill passes as is.
There is time to make a difference, and I am sure the ICA will lobby hard to amend the bill to eliminate some of the gray area that exists and could hurt us. I don’t like to promote a cause on my blog or use this as a soapbox, but I strongly urge you to join the ICA. Although most of the “big guys” are helping to support them, they need the support of everyone. I joined as a Professional Member and intend to give as much as I can afford.
Domain owners own almost priceless virtual assets. I think this bill could lead to outsiders coming in and threatening (or taking) legal action to secure our valuable assets. If this threat becomes real, which will probably happen if the bill passes as is, our assets could become liabilities, and the values of domain names could go down. We need someone to take the side of domain owners and domain investors, and the ICA is the best organized group to do it.

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