Anti-Cyber Squatting Consumer Protection Act Update

Our law firm receives a lot of calls from people and companies who are being threatened with an Anti-Cyber Squatting Consumer Protection Act claim because they registered a domain name identical or similar to a trademark held by someone else. Inevitably, we hear the words Network Solutions allowed me to register the domain, so there is no way someone can say that I did anything wrong.

Of course, Network Solutions and the other registrars do little to ensure that a person registering a domain has legal right to do so. In fact, about the only thing registrars do is make each person who purchases a domain affirm that they are not interfering with some elses legitimate trademark rights. The fact that you are able to register a domain doesnt mean that you wont get sued for having done so under federal law.

The ACPA is a federal law that took effect in November 1999, in order to preclude bad faith registration of domain names. This new domain name dispute law is intended to give trademark and service mark owners legal remedies against defendants who obtain domain names in bad faith that are identical or confusingly similar to a trademark or service mark. In order to win a case of cyber squatting, plaintiff must prove that defendant has a bad faith intent to profit from the mark that is identical or confusingly similar or dilutes plaintiffs mark. The key element is that plaintiff must prove that defendant hasbad faith intent to profit from the mark. What this means is that if defendant merely registers the domain and does nothing with it commercially, plaintiff will have a difficult if not impossible time proving bad faith. Typically, intent to profit is shown by the use of the domain as a commercial Adavjlosjxvxyy which sells goods or services. For an alleged domain violator who does not develop a website, bad faith intent to profit is often shown when the defendant tries to sell the domain name to the trademark holder. Any transfer of the domain for consideration will typically satisfy the profit test.

Another bad faith factor is if the registrant provides false contact information to the registrar or fails to maintain correct contact information moving forward. Because of this bad faith factor, it is important for all domain name owners to check their domain registrations regularly in the Whos database to determine if their contact information is correct.

If you should decide to file an ACPA lawsuit, you have a variety of remedies which are available to you under the act. The most important one is potential forfeiture or cancellation of the domain name or transfer of the domain name to the plaintiff. In lieu of actual damages, the plaintiff may elect statutory damages and has discretion to award between $1,000 and $100,000 in damages for bad faith registration. Attorneys fees are also available for a bad faith registration. Sometimes, the domain owner cannot be found or served with a Summons and Complaint because they have provided false information or are not located within the United States. In these instances, a trademark owner may bring in In Rem action against the domain name in the judicial district in which the domain name registrar, domain name registry or other domain name authority that registered or assigned the domain name is located. Money damages are not available in an In Rem lawsuit. Typically, the trademark owner is more focused at having the domain name transferred to them.

One recent Sixth Circuit Court of Appeals case, Interactive Products, Corporation v. A2Z Mobile Office, No. 01-3590 (6th Cir., April 10, 2003), was not good news for trademark holders in our jurisdiction. The Court held that the post-domain path of a URL (the sub-file directory). . . does not typically signify source (of goods or services). The post-domain path merely shows how the websites data is organized within the host computer files. Accordingly, the Sixth Circuit held that the presence of plaintiffs trademark in the path of the domain name of a competitor was unlikely to cause consumer confusion. Interestingly, the Court reached this result even though the defendant, A2Z, was selling competing products. It should be noted that the Court did not hold that using some elses trademark in the top level domain, on the website itself or in the meta tags is exempt from ACPA liability.

Each ACPA case turns on the particular facts presented. It should also be noted that the Interactive Products plaintiff did not present any evidence that the presence of its trademark in the post-domain path caused actual confusion or was likely to cause consumer confusion. If such evidence existed and was presented, the outcome could have been different. The ACPA in an important weapon for trademark holders in protecting their intellectual property in the online world. If you do not protect your trademarks, you may lose rights in those marks altogether. Besides, if you dont protect your marks, who will?

Enrico Schaefer is the founding attorney of Traverse Legal, PLC, a law firm specializing in href="traverselegal.com">web law. You can find out more about protecting your domain name, UDRP arbitrations and anti-cybersquatting laws at Traverse Legals tcattorney.typepad.com/domainnamedispute/">domain name theft and tcattorney.typepad.com/ip/">trademark blogs.

The Legal Aspects of Home Security Surveillance Plans

The law is the law, whether it has been defined, reworked, modified or changed over the years. If you are going to install a home security surveillance system or develop a plan that includes a security company or a gun it is in your best interests to know the laws that correspond with your plan.

The 4th Amendment to the Constitution basically was written to protect the citizens from unlawful search from the government. However, over the years that has been used more by individuals protecting their writes against individuals. Obviously, criminals don't pay attention to the laws. But you have too. Many things can be turned one auto donations or another in a court of law. Everyone has a different way of looking at the law. You could very easily break the law and not even realize it. When you place video cameras outside you have to ensure that they do not have a sweep that extends into a neighbors house. This would be an invasion of their privacy and would therefore be against the law.

Gun laws vary as well. Even though the 2nd Amendment of the Constitution recognized the rights of Americans to bare arms. That law has been played with for years and in no way does it resemble its original form. Every state has different laws on gun ownership. Most areas do request a registration form be filed. However, regardless, it is in your best interest to find out what the laws are for sure. Some laws tend to backfire on you. In addition, if a gun is really in your security plan you need to check out the laws on discharging it. Anytime that you pull a gun on someone, it can be turned around on you in a court of law. It is tough, but the law is the law.

Its also important that you know what your security company is doing. Make sure they have all the licensing information they are required for the actions that they may take. Understand what they will do in different situations. Everything can come back on you, the homeowner. There are things you just have to consider. Steps that you have to take to ensure that you are protected under the eyes of the law, whatever it may be.

The laws are meant to assist us. Unfortunately, if you are not careful the very law that is supposed to be protecting you turns against you. One minute you are the innocent home owner trying to avoid being burglarized, and the next you are the criminal who pulled a gun on a would be intruder. I was always told that if someone is breaking into your house, and you decide to shoot them, you had better hope they fall inside the house. If not the law could work against you. There are many things that just don't seem right. It is your responsibility to know what you can do and cannot do. You cannot plead ignorance. Even as we take precautions to protect ourselves and our families we have to be careful not to break a law in the process.

The legalities are many. When you are considering a gun option, always spend a little extra time, focusing on the possibilities of having one around your home. If you have children, you must take special precautions to keep it hidden and safe. Only you can decide if a gun is really an answer to your home security surveillance needs. Plan legally.

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