Friday, July 31, 2015

Domain Name & Trademarks - Is a Suffix an Identifier?


Intellectual Property Law
Can a generic top-level domain (gTLD) just be considered as part of a web address or should it be considered a source of the domain name registry?  Top-level domains (TLDs) are administered by the Internet Assigned Numbers Authority (IANA) for the domain name system we call the internet.

 One can simply see it as a suffix at the end of a domain name (DN). The USPTO is concerned that the general public would construe the suffix as part of the DN and not serving as intended which is to be a source indicator for the registry.  Given that concern, it does not meet the criteria as a valid component to be considered as inclusive in a trademark.

As we follow gTLDs filed applications such as Vox Populi Registry’s “.sucks,” it would be worthy to note what effort will be made to demonstrate that the intended mark will be construed by the general public as a source indicator by employing a marketing campaign.

The burden will be to overcome the USPTO’s rebuttable presumption that it is not issuable as a trademark.  Whether “.sucks” engages in marketing in order to enhance its filing’s success, whatever efforts are taken they will have to demonstrate normal course of business as they may use T-shirts and condoms in their marketing distribution system.  Their marketing may shed some light on what goods the mark will be approved on.

Meanwhile, Vox Populi administers the Trademark Clearinghouse or TMCH that processes names of registrants seeking to protect their name from being associated with negative suffix connotations.  

Lorenzo Law Firm, P.A. copyright 2015


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Thursday, July 30, 2015

Internet Privacy Law - Real Name Use in Social Media



Internet Privacy Rights

A longstanding policy has been successfully challenged in Germany, where Facebook’s real name policy was a must.  Germany disagreed with the policy in that they view that it violated users’ privacy.

Facebook also argued a jurisdictional point raising that Irish law should weigh in on this because Facebook European offices are headquartered in Ireland, but data protection commissioner in Hamburg Germany disagreed.  The data protection commissioner held that Facebook operating in Germany with German citizens must abide by their privacy regulations.

The decision prevents Facebook from changing users’ usernames to actual name. The decision prohibits the request for official ID upon subscription.  The case was filed after a subscriber used a pseudonym and Facebook blocked it and changed it to the user’s name.

Facebook argued unsuccessfully that safety is ensured in social media if the users know who they are interacting with on the web.  However, privacy interests prevailed when safety is factored in.

Lorenzo Law Firm, P.A. copyright 2015.

https://www.linkedin.com/pulse/real-name-policy-does-stand-privacy-social-media-lorenzo-jr-?published=t


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Internet Privacy Law - Privacy Rights and Invasion of Privacy - Children's "iRights"





Internet Privacy Law Children's "iRights"

“iRights” has become a movement with valid concerns and motivations such as improving children’s digital literacy and enforcing children’s “right to be forgotten.”  This effort is geared up in the UK by the Internet Safety and Security Minister.

The goal is to foster a working relationship between government and businesses to enhance privacy and security of online life and that of the protections for internet use by children.  The integral component is the responsibility that is so critical when dealing with children on the web.

The “iRights” effort  is centered on the concept that children should be able to erase their digital footprint.   At the cusp is the rise of the importance of user privacy.  Enhancing privacy is seen as fostering commercial benefits in all aspects of ecommerce, internet marketing, social media exchanges, and C2C, B2C, and B2B interactions.


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Friday, July 24, 2015

Technology Law │ Trade Secrets and Source Code



Intellectual Property Law - Trade Secrets and Source Code

Intellectual property law lawyers are scratching their heads as state courts are struggling with archaic laws on trade secret theft cases. For instance, the New York Supreme Court determined in a trade secret case ruled, resulting in overturning a conviction as it defined ‘tangible’ as not the same as when source code is electronically transferred. The court determined that electronically transferring source code is not the same as replicating the code.   The judge’s decision was based on a dictionary definition of ‘tangible’ and opining that electronically transferring the source code to a different medium was not considered a reproduction.

The court thought that in order for there to be an infringement there had to be a physical manifestation in a physical aspect. This certainly overlooks the capability of current technology and cements the notion of archaic laws and not-up-to-date judges. The court specifically stated that “computer code does not become tangible merely because it is contained in a computer.”

What can be a valid stance on the issue is the recognition by judges of what was claimed in the Beaugard case (In re Beauregard, 53 F.3d 1583 (Fed. Cir. 1995)) where computer readable medium (“CRM”) is used within the system which inherently protects the intellectual property of the source code as it functions.

Under this claim, the aspect of readability within a program in a system obviates the believed obligation of there being a ‘tangibility’ in physical form for there to be evident infringement and theft of trade secret and could finally lead to the acknowledgement respecting the fact of transferability and readability being an effective aspect of operability of a reproduction.

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Wednesday, July 15, 2015

Internet Law - International or National?



Internet Law

The freedom of the internet may not be as free as it once was in short order as countries peer in to assess cross border information flow. National courts are determining internet content in a growing rate causing inconsistency in the ‘www.’ Canada, France, China, Iran, Saudi Arabia, Russia and Turkey are setting example for seeking content restriction.

Although there is merit to preventing national law from being violated, such as the exercise of free expression, there are challenges to foreign affairs when national courts weigh in on trade secrets, privacy, freedom of speech, data protection, digital legacy of an individual, right to be forgotten, to name a few. For instance, a British Columbia Court of Appeal, in Equustek Solutions Inc. v. Jack, required Google to remove websites from its global index. It did not order Google to remove selected links.

What it did do was address the database as a whole. The purpose was to prevent anyone from accessing the search results. The B.C. Court cited a Yahoo case in France along with the EU decision on the issue of the ‘right to be forgotten,’ and opined that these decisions are not inconsistent with international comity.

The stretch to have a ‘removal order’ decision have global impact is monumental. The unraised question is to what extent does a forum country overstep its sovereign juridical restriction vis-à-vis other countries, with all due respect to their sovereignty? There are multidimensional consequences that touch on trade policies, media censorship, freedom of expression, democracy, information access, advertising, public relations and IP blocking to prevent content disclosure. The ultimate consequence would lead to a smaller ‘WWW’ with regional and national influences directed by local regimes. The concern should be the course of piecemeal decisions setting precedent that national courts resort to despite not being juridically equipped to impact the ‘WWW.’


Lorenzo Law Firm, P.A. copyright 2015


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Tuesday, July 14, 2015

Trademark Law │“Free-riding” - Diluting Trademark Reputation



Intellectual Property Law - Trademark Law

Company brands struggle against other entities that are not necessarily in their industry, benefiting by their use of a similar if not identical mark from the reputation they have tried to build. This “free-riding” effectively could dilute the reputation of an established trademark. The protection of a trademark’s reputation should be protected even to the extent of the absence of harm.

Free-riding could be so evident in design and scope that the intent is blatantly obvious upon first impression. A mark with significant public awareness has a lower hurdle to leap. Yet in obscure fields a prior trademark yet known in that field should be able to establish the dilution of its mark by an entity dealing in related and dissimilar goods.

The burden will be heavy on the subsequent user relative to the distinctiveness of the original owner of the mark. How should the presumption weigh? Arguably, it is unfair to benefit from the distinctiveness of a previously established mark, even in a dissimilar field of goods and services. This free riding should shift the burden of proof  to the subsequent user of the similar or identical mark to demonstrate the basis for its choice for that mark in question.

The argument of broad dilution becomes harder when considering how a mark is received by public perception and demands of goods and services when the mark is appearing in dissimilar goods and services. Does it lose its distinctive meaning in its original service area for goods? The struggle continues!

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Monday, July 6, 2015

Internet Law │Computer Law -“Florida’s CADRA”


Computer Abuse and Data Recovery Act - Florida

Florida Legislature passed HB 175/SB 222 this year to create the "Computer Abuse and Data Recovery Act" ("CADRA") allowing for civil cause of action for the hacking of business computers. The bill provides for the recovery of actual damages, lost profits, and economic damages, as well as injunctive or other equitable relief to victims of hacking. CADRA does not exempt employee or insider hackers or impose any conditions precedent to bringing a claim for relief. The pertinent provision will be Chapter 668 F.S. where Part V is being created, consisting of ss. 668.801 - 668.805, Florida Statutes.

The provision of the CADRA is to address the gaps existing between the Florida Computer Crimes Act (“CCA”) in Section 815, F.S. and the federal Computer Fraud and Abuse Act (“CFAA”) in 18 U.S.C. § 1030. Specifically, CCA provides for civil action upon the individual criminally convicted and it exempt employees acting within the scope of their employment. CFAA requires there to be damages of at least $5,000. In addition to the courts disparate determination over hacking committed by insiders and employees, business have found it difficult support civil claims under both CCA and CFAA. CADRA will become effective October 1, 2015.

The time limit for an action under CADRA is 3 years after a violation occurred, it was discovered, or should have been discovered through due diligence. CADRA also provides for attorney fees for the prevailing party.

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Friday, July 3, 2015

Cyber Hack Liability Insurance │ Assessing Business' Cyber Security Insurance Needs


Internet Security

Cyber Hack Insurance and Business Liability

Securing insurance coverage for cyber-attack events should address your cyber liability. Considerations should address monitoring, risk assessment to prevent gaps in coverage, lower deductibles with the use of encryption, phishing attacks, negotiating sub limits for potential claims, coverage for legal representation, and forensic analysis.

One needs to be aware that claim coverages have set sub limits, for instance $250,000 sub limit under a $1 million policy. Looking for a policy feature allowing for adjusting the sublimit will be beneficial. Look for policies that feature reductions in premiums with the implementation of company security and monitoring practices.

A current review of your business’s liability policy should be done to assess gaps to enhance internet security. The implementation of riders may be helpful but a comprehensive assessment for vulnerabilities would pay off in the long run. Your current policy or one being considered should have coverage for regulatory compliance and expenses.

Do note that with the rise of cyber events, insures are being conservative with their coverage. As regulators are paying more attention to cyber events, insurers are revising their products. A careful review of internal practices is a must along with seeking to leverage best practices as a means to secure lower premiums at a balance for the coverage addressing your company’s potential cyber-attack exposure.

Lorenzo Law Firm, P.A. copyright 2015.


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Wednesday, July 1, 2015

Internet Technology Law │ FCC – From Landline to Internet


Communications and Technology "Internet Communications"

Federal Communications Commission wants fiber landlines to continue getting signals during a power outage much like the copper networks. The recommendation by the FCC Chairman would require providers to offer backup power for customers as they transition from copper.

The FCC will vote in August. One concern is the cost for the backup power since it will be passed on to the consumer.  Carriers will be required to notify customers of limits to voice during outages and of their transition away from copper networks.

The rules would force phone companies to notify customers and other interconnection carriers before they retire their copper networks. FCC is looking into prevailing issues of 911 support, quality of service, and coverage reliability.


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