In a voluntary self-policing effort most likely intended to help safeguard their Communications Decency Act (“CDA”) Section 230 immunity from suit, several Internet Service Providers (“ISPs”) have created a “Copyright Alert System” (“CAS”) to allow content owners the opportunity to report piracy, through which “strikes” can be issued to Internet service users as a warning for piracy. This YouTube user who I can’t identify as an authority, has a few generally accurate, and fairly informative videos about the CAS regime. It’s not clear whether this user is a representative of the ISPs or not. Comcast also has a pretty good set of faqs on the CAS.
Essentially, the CAS allows content owners to identify infringing IP addresses after verifying that infringement is taking place by P2P (“peer to peer”) file sharing. The ISP then sends a warning to the Internet service user who had that IP address at the relevant time. After multiple warnings the Internet service user may be required to view a video about piracy, and after several warnings that user’s service may be “throttled,” or slowed down to make piracy more difficult or time-consuming. The CAS includes an arbitration process for challenging warnings (Russell’s teapot: How do you prove you weren’t pirating?), but no circumstance under which an Internet service user’s account is to be terminated.
What is Internet law?
I get that question a lot. When you think of it, the Internet and the law the governs has pervaded society over the last ten years and its expansion and this integration will continue. This will be especially true for businesses – hence the name for this blog. Below the jump are some examples of common trends and issues:
Sometimes stating the obvious is necessary – like in the photo attached to this post (which I took while traveling in Australia this past winter). People ask why in society we need disclaimers preventing behavior that would seem obvious and unnecessary to 99.999999% of the population. The next time someone complains about unnecessary disclaimers to me, I will point them to this post about the online and now legal saga between FunnyJunk.com (Funny Junk) , TheOatmeal.com (The Oatmeal), and attorney Charles Carreon (who, according to Arstechnica.com, is a self-proclaimed “counsel to the good and the good looking“). I guess homely evil-doers need not apply. Yes, I’m talking to you Kim Jong-un.
To many, lawyers have a sketchy reputation. Just recently, we’ve had lawyers as prostitutes [insert lawyer joke here], lawyers planting drugs on an elementary school volunteer, and possibly even as murderers. Now we have lawyers suing charities. Wonderful.
How did we get to a lawyer suing charities including the American Cancer Society (especially one with a storied and successful career)? Read more below.
In a recent UDRP proceeding, the popular X-Sports manufacturer Vans, Inc. tried to gain the rights to the domain name <protechelmet.com> from the company, Military and Rescue Supply. Despite the evidence provided by both sides, a team of three Panelists decided that this dispute is not the type covered by the UDRP and should be resolved by the courts. Due to this decision, the domain name for now rests with Military and Rescue Supply. Read more
In several cases decided recently, the UDRP transferred the rights to several domain names using common misspellings to the complainant. For example, in one decision dated September 30, Google Inc. gained the rights to 37 domain names from Zhou Murong. These 37 domain names ranged from common misspellings to domain names actually containing the word Google. Examples include: gogledeals.com; googeldeals.com; gooogledeals.com; and my personal favorite, googeebooks.com.
Other sites have had similar problems with common misspellings of their websites being used to steal traffic from their actual site. Other examples where the rights to the domains were transferred to the owner of the correctly spelled name are:
- Etsy, Inc. received the rights to etsyy.com
- Enterprise Holdings, Inc. received the rights to
With all three of these cases, there have been two things in common. First, the respondent has not responded to the filed complaint. And secondly, each misspelled website was simply a host for third party links, occasionally featuring competitor links for the website they were misspelling.
As discussed with other similar cases, the case for transference of the domain rights is a lot easier to make when the respondent does not respond to the complaint. Thus making it a lot easier to establish that the three points necessary for transference:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In each case, it was fairly easy to prove all three points due to the nature of the website and fact that the respondents did not respond to the complaint. Because of the common misspellings of the websites in question and the fact that each company had trademarks for their names, it was easily shown that each website was registered in bad faith and was simply created to steal potential traffic from the correctly spelled website. Each case also resulted in the rights to the domain name being transferred to the owner of the domain they were misspelling.
You can read the actual decision for Google, Etsy, and Enterprise by clicking on their names.
Yesterday, Apple lost its appeal and has been denied the trademark for “multi-touch” by the United States Patent and Trademark Office. The original application for the trademark was on January 9, 2007, the same day the iPhone was introduced. However, the application was eventually denied, with the decision stating that the, “applicant’s proposed mark is merely descriptive of applicant’s goods.” Read more
In another UDRP decision last week, the rights to the domain name Weldon.com were transferred from the owner to the Complainant, IPS Corporation, largely because the original owner failed to respond whatsoever to the complaint. IPS Corporation owns several trademarks worldwide for the term WELD-ON, which is a bonding material for use with all types of plastic pipes. However, the weldon.com website as it stood before the decision of the Panel, simply contained third-party links and a search engine.
Earlier this week, Lady Gaga lost a domain name dispute trying to grant her the rights to LadyGaga.org from its owner, an avid Lady Gaga fan. The fan website has already been up for three years and clearly states that it is for non-commercial use and is an unofficial fan-site simply dedicated to everything Lady Gaga.
A quick report today that is not entirely surprising: trademark holders have won 93 domain name disputes for the .co extension and lost just one at the World Intellectual Property Organization.
So, who was the one loss? The article has the answer:
The only organization to lose a case is Comite Interprofessionnel du vin de Champagne, which failed to get Champagne.co.
There are a few caveats: National Arbitration Forum cases were not considered because they were not broken down by TLD extension and “terminated” cases were counted as wins.
Even with those caveats, it is an impressive record and demonstrates that cybersquatters who trade off another company’s trademark usually lose.