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The PunkLawyer Blog Domain Names Archives - The PunkLawyer Blog

Archive for the ‘Domain Names’ Category

.Sucks? How about .no?

Thursday, April 2nd, 2015

The new gTLDs, or generic top level domains, have been in the news a lot lately.  Taylor Swift made big news when she made a smart strategic move and purchased a number of domains related to her name and brand with the new gTLDs .adult, and .porn.  While this initially may seem like a publicity stunt, it’s actually a smart move on her part to protect her brand, and one that brand owners need to take note of in terms of planning their domain strategy.  With the rollout of the new gTLDs, there are more options for what a web address says to the right of the dot, and brand owners are concerned about the potential options that could make their brand look bad.  This is particularly true in the case of .sucks, a domain that I have been monitoring for some time.   Just last week, the IP Constituency of ICANN, the group that represents brand owners at the international body that governs the internet, sent a letter urging ICANN to stop the rollout of the .sucks domain. 

So how can brand owners protect themselves in this new landscape of gTLDs?  A good place to start is setting up a monitoring service to monitor your brands and alert you to marks and domains that may be similar to yours so that you can take appropriate actions.  Another good step to take is to register your brands with the Trademark Clearinghouse, which will notify registered trademark holders of new gTLDs that may be using their marks, and offers them the chance to object to the registration of such domains.  If nothing else, setting up a Google Alert can be a good, inexpensive way to monitor mentions of our mark and news stories related to the brand online.  This space is likely to continue to generate interesting news stories, and I’ll do my best to cover them here.  These services are also among those that Scelsi Entertainment and New Media Law offers, please visit our website for more information and to contact me.

Resolve to Be Smart About Trademarks in 2015

Friday, January 9th, 2015

Happy new year! We’re already 9 days into 2015, and from an IP and entertainment law standpoint, it looks like this year will be another one jam packed with interesting legal and business issues. I definitely think that these issues will include those related to trademarks. As such, I wanted to take this opportunity to talk about trademarks and where they should fall in your business strategy. Too often, I hear brand owners talk about the stress and expense of receiving a cease and desist letter from a trademark owner, as well as the threat of a lawsuit. It pains me to hear these stories, for while there is no 100% guarantee against a trademark infringement lawsuit, there are a number of simple steps that business owners can take to greatly reduce the likelihood of a claim. Ideally, you would hire an attorney to help incorporate the business, as well as check on the availability of the intended business name. Too often, business owners don’t take this second step, and this is where you can run into trouble.

Just look at this past season of Silicon Valley, and the trials and tribulations of the Pied Piper app startup. Spoiler alert if you haven’t seen the show yet: the founder, Richard, runs into trademark trouble, and ends up paying for the right to use the name for his software startup from a irrigation company. It’s important to note that the two uses of the name could have coexisted, as the companies are in two different classes of goods and services, but that’s a post for another day. The larger point is that a simple Google search for the proposed company name, as well as perhaps a search of the USPTO trademark database, would likely have produced results showing the potentially conflicting name, and allowed the founder to plan accordingly.

Have you ever wondered why bands change their names after signing with a major record label, or why so many technology companies have weird names? It’s usually a matter of trademark law, or that the domain for that name isn’t available. However, if you’re proactive in planning your business, you can greatly reduce your chances of getting into trademark trouble. Your best bet is to consult an attorney who practices trademark law. He or she will likely recommend doing a more extensive search, which would include not only searching the internet and USPTO database, but also trademark registrations in individual states. Once the attorney receives the results, he or she can provide you with an opinion as to whether you should or should not pursue registering the company name or logo for federal trademark registration with the USPTO. I know that people are always trying to save money when starting a business, but with business names and trademarks, it’s definitely a situation where an ounce of prevention is worth a pound of cure. Litigation can cost a lot more than the legal fees for an attorney to help you determine if the name is available, so save yourself the headache and budget for it as part of your business plan. So if you’re starting a business this year, resolve to be proactive and make sure that the business or product name that you plan to use is available.

Top 10 Tech Legal Trends to Watch for 2015- Part 1

Tuesday, December 30th, 2014

2014 is rapidly drawing to a close, and it’s time to look to what the new year will likely hold in terms of trends in technology and entertainment law. Here’s the first installment of issues that I think will be trending in these areas of law, or in some cases will continue to be trends in 2015:

1. Privacy.

From the data breaches at Target, Home Depot and other major retailers this year to the current Sony Pictures hacking scandal, data privacy will continue to be a big issue for companies and consumers in 2015. Look for lawmakers to try to find solutions in both federal and state law, and for consumers to continue to find better ways to protect their data.

2. gTLDs.

Speaking of hacking, it was revealed this week that the Internet Company for Assigned Names and Numbers itself had been a victim to the efforts of hackers. As you may have seen this year, a major issue for brand owners was the roll out of the new generic top level domain (gTLD) program. While recent years have involved a lot of crystal ball gazing to see what the future might hold as these new domains are introduced, this year actually saw many of them being introduced. In addition, the disputes over domains that were in contention by more than one party have largely been resolved through auctions, so there will be more new gTLDs than ever being introduced. Though it will be interesting to see how the .press and other domains are used by businesses and brand owners, I think I’m most anxious to see what results from the introduction of my favorite new gTLD, which is .sucks. .enjoy!

3. Projects using real life people

Among the many issues related to the ongoing international crisis that is the Sony Pictures hacking situation is that of the potential consequences of using the identities or personas of real people in fictional works. Right of publicity issues have taken on greater importance in recent years, and 2014 was certainly no exception, with the ramifications of former UCLA basketball player Ed O’Bannon’s antitrust lawsuit against the NCAA for its use of not only his likeness in television broadcasts and video games, but those of potentially thousands of other NCAA athletes looming large on the future of the organization. While these works can be defended on the grounds of parody or fair use, it’s important to keep in mind that if you are at a point where you are discussing these defenses, it likely means you are trying to ward off a lawsuit, or have already been threatened with one. While these situations are typically fact and personality specific as to the potential consequences, it is definitely advised that creators seek the advice of counsel before pursuing the use of the names, likenesses, voices or other identifying characteristics of real life people in commercial projects.

4. CalOPPA

Speaking of real life people, like many states, California regulators have been increasingly concerned about the privacy of its residents online. California implemented the law known as the California Online Privacy Protection Act, or CalOPPA in 2003, and has been making headlines in its efforts to enforce the law, which among other things requires app and website operators to conspicuously post privacy policies on apps and websites. While I understand that design is an important aspect of the work that app and web designers do, I would recommend that designers start finding ways to make the conspicuous of privacy policies and terms of service part of the design plan as a way to keep themselves and their clients in compliance with CalOPPPA and other regulations. In addition, the recent amendments to CalOPPA that are going into effect on January 1, 2015, call for website operators to implement a ‘delete button’ feature that will require them to implement mechanisms that would allow minors to request that their information be deleted from the site, as well as provide minors with notice of this ability to delete online content and instructions on how to do so. Yet another amendment prohibits operators from marketing certain categories of products or services to minors online. Amendments like these highlight the importance of treating a website’s privacy policy and terms of service as living documents that must be tended to and updated as laws change.

5. Kids’ privacy

And to round out the top 5, we’re back to privacy. While it may seem like splitting hairs to some, to parents and regulators, the privacy of children in the internet is a whole separate area of concern. In addition to the changes coming as part of CalOPPA, it is likely that the Federal Trade Commission (FTC) will continue to monitor apps and websites for COPPA compliance, as well as amend the law to better protect children online. It is also likely that companies like Facebook will continue to lobby for the loosening of COPPA and similar regulations in favor of letting companies develop their own mechanisms for protecting children online. Recent FTC settlements with TinyCo and Yelp over COPPA violations illuminated areas of concern for the agency, which primarily focused on the collection and handling of data gathered by apps targeted at children. In the case of Yelp, the FTC noted that while the site had the proper COPPA mechanisms in place on its full website, it was the lack of such a mechanism on the site’s mobile app that brought the attention of the agency.

What other issues do you think will be big in 2015? We’ll be listing the rest of the top 10 tomorrow, and as always welcome your insights.

When Should I Consider Trademarks?

Tuesday, March 11th, 2014

I spoke this past weekend at Florida DrupalCamp on intellectual property law and compliance issues for web developers. It was a great session, with lots of interesting questions from those in attendance, and I hope to incorporate many of them into future posts. I think a good place to start is a question that I am asked a lot by aspiring entrepreneurs, which is “when should I consider registering for a trademark in the startup process?” My answer to this is that it should be considered as early on in the process as possible. Of the many steps that it can take to start and grow a business, sometimes the process of considering whether a company or product name is capable of being registered for a trademark, as well as registering such a name, can tend to end up on the back burner. This can be a costly tactical error for a small business, as proceeding without the use of a company or product name without an idea of whether it could potentially generate a trademark infringement claim can not only result in litigation from another trademark owner, but also mean that the company or product may have to change its name and lose any accumulated recognition in the minds of consumers.

While of course I always advise that entrepreneurs consult with an attorney to help them navigate the trademark search and registration process, there are also simple steps that people can take to get an idea of whether a name is available for use for a company or product. One way is to perform an internet search for that name and the related industry in which it would be used to see if there are any results that could potentially overlap with what you have in mind. The related industry is important, as trademark registrations with the United States Patent and Trademark Office (USPTO) are issued by the class of goods or services for which the mark will be used. This is why you will see in some instances the same name being used for different classes of goods or services, such as Delta Airlines and Delta Faucets. Now an internet search may not give you all the information you would need about whether a name is available for use, or is already registered as a trademark. This is why it is also a good idea to run a search of the trademark registrations with the USPTO on its website to see if there are any names or logos that could conflict with the name you are looking to use in the search results. Of course, the next logical question that may come to mind is if I can do these searches myself, why would I need to hire an attorney? It’s a good question, and the answer is that an attorney with knowledge of trademark law can assist you in performing a fuller search of whether a name or logo is capable of being registered with the USPTO. Why does this matter? As trademarks are not only a matter of federal law, but also state law, there can be registrations or uses of the name in question that may not show up in an internet search or search of the federal database that may show up in a fuller knock out search. Such a search would also include domain name registrations, and if you have ever wondered why some tech companies have such strange names, it is often a result of trying to find an available domain name. Further, an attorney can advise you as to the potential risk that similar or matching results may present, and help a company choose another name if the risk is too great.

No matter which route you opt to take in terms of trying to determine if a name is available for use, and ultimately for registration as a trademark, the point is that these discussions need to take place early on in the startup process. Think about it- if you’re going to spend your time, energy, and money on developing a new product or company, don’t you want to do so wisely? Litigation is expensive and time consuming, so if doing some basic searches can help you head off potential problems, that is time (and money) well spent.

Whose Domain Is It Anyway?

Thursday, January 27th, 2011

I posted a while back about the introduction of new generic top level domains (gTLDs) by ICANN, the organization charged with regulating domains and the like on the internet.  Trademark owners are keeping an eye on the proposed process for registering for these new domains, as well as how potential domain disputes will be handled.  The buzz has already started, as the introduction of the .jobs domain recently sent a shudder through the online classified advertising community, as some of these sites provide job listings for free as opposed to the sites where businesses would have to pay to post jobs.

Another interesting domain related dispute that is before ICANN is that over the .music TLD.  As was reported this week on Billboard.biz, some of the trade organizations representing record labels and songwriters, among others, have sent a letter objecting to the proposed means of registering domain names with the .music extension.  Citing concerns about piracy sites being able to register for .music domains, the trade organizations expressed a desire for the ‘music community’ to have control over the granting of .music domains.  This control would include not granting a .music domain to parties offering free unlicensed music on their sites, a determination that could be difficult to make given all of the new sites and technologies for sharing content.  It will be interesting to see how this debate pans out, particularly for artists as well as new music technology companies creating music apps and the like.  Control of domain names has been an area of contention for artists over the years, who have signed contracts only to find out later that the contract gave their record label ownership and control of the artist’s domain name.  The issue of where independent artists seeking to register a .music domain would fall if control was given to the requesting parties would be an interesting one as well, particularly given all of the artists using social media and other platforms to share their music.  Hopefully once ICANN releases its procedures for registering these new gTLDs it will provide some clarity to situations like this.  I’ll be keeping an eye on these domain issues, not only for the blog but also because I’m speaking on a panel about gTLDs for trademark owners at the American Bar Association Section of Intellectual Property Law Annual Meeting in April.

As you are probably aware or have learned reading the posts here, there is quite a bit of activity going on at the intersection of new technologies, media, and the law.  I’m fascinated by this area and how the law develops in response to issues that might arise.  That’s why I’m really excited to have been invited to speak about legal issues in the use of social media at unGeeked Orlando March 3-5, 2011.  What is unGeeked?  It’s a 3 day social media, marketing and branding retreat designed to engage both the speakers and attendees.  It’s not your typical conference where a speaker will give a presentation with lots of slides and only a few minutes for questions.  At unGeeked you will get the chance to participate with the speakers, and build professional relationships while learning about how to leverage your brand.  For more information about the event, as well as the national and regional speakers, check out the website here.  If you’re interested, contact me for a 10% discount on registration.  I hope to see some of you there