Just in case you didn't know, the International Trademark Association (INTA) is right in the middle of its Annual Meeting, which this year is being hosted in Chicago. There are oodles of good programs dealing with various aspects of trademarks, branding, and the issues that arise with them in the online marketing context.  One session focused entirely on online resources that are useful when investigating domain names and domain name holders, whether to clear domains for your own use, or track down the bad guys who are wreaking havoc with you by using domains similar or identical to your trademarks and tradenames.  Here are some of the sites mentioned by the speakers (you will want to bookmark these, or at least a link to this post!):

Alexa.com provides current and historic traffic volume data on internet sites, and allows you to compare the traffic between competing sites, which is useful in a number of contexts.

Archive.org is where you can find the "Way Back Machine", which allows you to look and see how long a site has been around, and track changes that have been made to the site over time.

BetterWhoIs.com is a comprehensive, easy to use clearinghouse for domain name WHOIS information, and is a favorite with the presenters.

Domain Tools was said to provides lots of advanced features for finding information about domains, and domain name holders, some of which is free, and some of which comes with a small fee.  For example, for a fee of about $150 per year, you can evidently access Domain Tools archive of WHOIS information, which provides a chain of title of sorts for domain names.   It also has a reverse IP search available, and typo generator, that assists in identifying domain typos on your domain.

Geektools.com provides a set of technical resources for network engineers and system administrators, which  includes whois and traceroute.

Nation Arbitration Forum provides an easy to search database of their UDRP decisions which makes it very simple to see if there have been any arbitrations involving a particular domain or party.

WIPO also provides a searchable database of its UDRP decisions, but it is not quite as user friendly.

SnapNames was identified as a favorite resource for back ordering domain names.  It is free to back-order a domain, and if it is "caught" by SnapNames, a fee of about $65 is due at that time.  Small price to pay for the benefit of eliminating potential problems with domains of interest.

SamSpade.org  is a freeware integrated network query tool for tracking down spam.

There was also an interesting discussion of the problems posed by the anonymous domain hosting services that are popping up everywhere.  Domains by Proxy was mentioned specifically as one of the more popular services. A good practice pointer - when sending out cease and desist letters to these domains, the letters should go to Domains by Proxy (or the other anonymizing registrant), because THEY ARE THE REGISTRANT and owner of the domain.  That is the way they set up their business model. They will likely respond by saying they are not the real owner of the domain, etc., but the word from the presenters was that if you persist, you can expect Domains by Proxy to respond fairly quickly by posting the actual registration information in the WHOIS record for that domain.

In a rare and perhaps temporary  setback for Google, a federal district court judge has refused to dismiss a lawsuit challenging Google's AdWords program.   U.S. District Court Judge Jeremy Fogel ruled earlier this week that the lawsuit filed by American Blind & Wallpaper Factory may proceed, noting that public has an interest in whether AdWords, the company's popular pay-per-click advertising system, violates U.S. trademark law.  Google has already prevailed in similar cases brought by GEICO and Rescue.com.    CNet article here.  Goldman's summary here.

On April 18, 2007, bipartisan legislators in both the Senate and House of Representatives introduced sweeping legislation in the Patent Reform Act of 2007.  It is being well covered by others, particularly Dennis Croutch, so we won't reinvent the wheel, but it is one to follow.   See also the Good and Bad in Patent Reform Act of 2007.

Senator Dan Eastman of Utah has defended Utah's new Keyword Ban on this blog.  Could it be Senator Eastman that posted the anonymous comment to our post below?   In any event, Eric Goldman (we could make a career pointing you to his excellent posts) persuasively takes him to task in this blog entry.  Goldman's point - there is no justification for characterising key word advertising as the equivalent of identity theft or carjacking, and the unfair use of those inflammatory descriptors does not make Utah's case.  Goldman explains that with keyword advertising, there is no coercion, and there is no confusion. 

The piling on against Utah and Senator Eastman is continuing:

The Lobbyist, the Congressmen and the Utah Search Ad Law 

Utah, Land of Dumb Internet Laws?

Utah's Misguided Trademark Protection Act

Is Utah's Internet Law Legal?

Google Opposes Utah Law Limiting Keyword Advertising

Utah Trademark Law Restricts Competition

The use of trademark keyword advertising seems to have reached a pretty decent equilibrium in the online marketing world.  Sure, many advertisers piggyback off of the interest associated with other marks, but sponsored link adwords have evolved into a genuine tool with little likelihood of confusing consumers as to origin.   Google has been vindicated a number of times in the past on this practice. 

That equilibrium could be upset by the Trademark Protection Act recently passed by the Utah Senate and enacted into law.  The law allows owners of trademarks and, potentially, domain names to register a mark and have a cause of action if that mark is used to trigger an advertisement of another business, good or service.   Given the reach of the Internet, the bill certainly faces the possibility that a court could declare it unconstitutional on dormant commerce clause grounds.  Until then, the law further clouds the picture for key word advertisers.  And, as Professor Eric Goldman points out in his blog, recent validations of the scope of Section 230 preemption could serve to protect Google and other online intermediaries.  This could again leave advertisers with most of the risk.

Clashes of new technology and old laws are what make this area of the practice interesting. The latest challenge for open meeting advocates appears to be virtual meetings held via instant messaging and group e-mail discussions. The issue arises when applicable open meeting laws provide that any time a quorum of a city council or similar body is present and discussing governmental business, such must be conducted in an open meeting where the public has the opportunity to be present and possibly participate.  The issue arose recently in Sioux City Iowa, where open meeting advocates claim that technology is assisting city council members in their efforts to sidestep the open meeting laws.  Read the story in the Sioux City Journal here.

A few courts have touched on the issue in the context of e-mail communications, such as Wood v. Battle Ground School District, and Beck v. Shelton, but there is certainly no definitive word on the subject.  The Beck court focused on whether the e-mails involved virtually simultaneous interaction, suggesting that instant messaging is more likely to result in a virtual meeting than the passive receipt of emails.

In any event, this issue will be one to watch as our "always-on" communications technology continues to permeate our daily lives.

Photo courtesy of David Elliott and Friends under Creative Commons

The Ninth Circuit Court of Appeals has released its opinion in a case between adult web site operator Perfect 10 and a number of Web hosting and credit card processing companies.  The case is significant because it expands the already broad protections of Section 230 of the Communications Decency Act.  The CDA has been interpreted very broadly to immunize "interactive computer services" (read online service providers) from liability relating to the content that users post  on their sites.  The Ninth Circuit has taken this immunity one step further, by concluding that Section 230 also shields service providers from liability relating to state law claims, such as claims that their user's postings violate common law rights of publicity, and state trademark statutes. 

On a related note, the decision also contains an analysis and discussion pertaining to the Digital Millennium Copyright Act (DMCA), and the safe harbor provisions of that Act, further reinforcing the notion that online content providers need not actively police their systems in order to maintain the immunity offered by the DMCA.

All in all, this decision is very important for any company that operates an online business where users can post or upload content.  The moat protecting them from liability for user content keeps getting deeper and wider.  Eric Goldman provides a good detailed analysis of the case at his blog that is worth checking out.

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