Saturday, March 17, 2012

gTLDs Pose New Threats in Cyberspace : IP Law Alert

On January 12, 2012, ICANN, the Internet?s domain name registration watch dog, began accepting applications for new generic Top-Level Domains?(gTLDs) to add to those already in existence, including .com, .net, .biz and others. Under the new scheme, any company can apply for a gTLD, thereby expanding the domain name system (DNS). Ultimately, this expansion will change the Internet forever. Each new gTLD poses an incremental risk for trademark owners who are already under heavy assault in cyberspace from cybersquatting (registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark owner), brandjacking (assuming the online identity of another entity for the purposes of trading on another?s brand equity), and typosquatting?(registering URLs with common misspellings) by those seeking to generate illicit profits. According to the Coalition Against Domain Name Abuse (CADNA), cybersquatting already costs trademark owners more than $1 billion each year due to lost sales, lost goodwill, and increased enforcement costs. However, with a major increase in gTLDs, many corporations fear an expansion in expensive litigation to enforce their brands and trademarks.

To safeguard its valuable marks, a company should be proactive. Steps to consider are: First, the company should register its service marks or trademarks with the USPTO. Second, the company should consider registering its marks with the newly created Trademark Clearinghouse and Claims Service, which will serve as a central repository for trademark information submitted by trademark owners. Third, the company should monitor the first round of gTLD applications published by ICANN and file a ?Legal Rights Objection? to any gTLD that infringes its marks. Fourth, the company should consider a defensive strategy by registering gTLD domain name variants within the 30 days after each new gTLD is launched. Lastly, the company should actively monitor new gTLD registrations as it does existing TLDs for key terms and marks and challenge potentially infringing domain names utilizing the most appropriate means, namely the Federal Trademark Dilution Act (FTDA), the Anticybersquatting Consumer Protection Act (ACPA), the Uniform Domain Name Dispute Resolution Policy (UDRP), or the new Uniform Rapid Suspension System?(URS).

Upon identification of an alleged infringer, a mark owner may first consider serving a cease and desist letter to the alleged infringing entity to halt an activity (cease) and not to take it up again later (desist) or else face legal action. In many instances, the cease and desist leads to a negotiated settlement. Failing that, trademark owners have three avenues of relief in cybersquatting cases. They can pursue legal action in federal court under the FTDA, Lanham Act or, more commonly, the ACPA. Alternatively, a trademark owner can seek to recover the domain name under ICANN?s UDRP. UDRP is a good option when there is evidence of bad faith by the domain name registrant. The UDRP allows a trademark owner to challenge domain name registrations in expedited administrative proceedings. UDRP proceedings can be faster and cheaper for trademark owners than litigation and outcomes tend to be pro-plaintiff. Lastly, the new URS process promises to provide trademark owners with an even faster and less expensive means of preventing trademark abuse. However, trademark owners in URS matters will face a higher burden of proof - clear and convincing evidence - and a finding against the trademark owner is always without prejudice. Thus, a secondary proceeding under URS, UDRP, or in federal court may be required.

Some trademark owners prefer to bring ACPA claims in the first instance because they offer more remedies than the cancellation or transfer of the domain name (the only remedies available under UDRP proceedings). In addition to corrective measures, a federal court can issue an injuction; award damages, including enhanced damages for willful infringement; and provide costs and/or attorney?s fees to a prevailing owner. A court ruling also provides a mark owner with final resolution of the matter and as such, a suit under the ACPA may deter future cybersquatters more effectively than a UDRP proceeding.

In order to prevail on a ACPA case, the trademark owner must prove that the domain name registrant (1) has a bad faith intent to profit from the mark and (2) registers, traffics in, or uses a domain name that is (a) identical to or confusingly similar to a distinctive mark, (b) identical to, confusingly similar to, or dilutive of a famous mark. In Mayflower Transit, L.L.C. v. Prince,?the court found that while the plaintiff had a registered mark and that defendant?s domain ? was confusingly similar, the court found that the defendant had a bona fide noncommercial use of the mark, therefore, the claim failed and the defendant was not liable for injunctive or monetary relief. 314 F. Supp. 2d 362, 367 (D.N.J. 2004). In contrast, in Verizon California, Inc. v. Navigation Catalyst Systems,?the court found registration of numerous websites in a very short time that were confusingly similar to the Verizon mark was evidence of a bad faith intent to profit and held defendants liable. 568 F. Supp. 2d 1088, 1092-97 (C.D. Cal. 2008).

The impact of gTLDs on the Internet and their intersection with trademark law, among others, will be closely monitored.

Luis J. Diaz?is a Director in the Gibbons Intellectual Property Department. John J. Cahill, an Associate in the Gibbons Intellectual Property Department, co-authored this post.


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Friday, March 16, 2012

Identity fraud ? 5 Ways for you to Be a Victim ? Identity Theft ...

Across the country, the threat of id theft continues to climb, this white collar crime continues to plague American consumers about cheap bumper plates, although it has a direct impact on your wallet, its not just about the amount of money anymore. By using your medical advantages to enable illegal immigration to more insidious crimes, identity fraud criminals are always inventing new ways to use stolen information.

1.)Drivers License Identity ? In the usa, our driver?s licenses, from each state?s Department of Cars or Department of transportation, have grown to be our national identification card. Unlike a passport, we stock our license along with us almost everywhere, multiplying the chance of theft. If the license is stolen and utilized by somebody who receives a DUI or DWI after which does not appear in court, you may be arrested.

A Pre-Paid Legal membership using the Legal Shield add-on gives you use of legal counsel 24-hours a day using a toll-free telephone call. You can understand the price of having a lawyer on call in the event that you?re stopped by police and there?s a warrant to your arrest to fail to look in the court.

2.)Medical Identity ? When someone uses your name, Ssn, birthday or your insurance card to obtain medical services, they?ve attacked your medical identity. If they assume your identity with regards to getting tests, or receive treatment, not merely will your name be around the bill, but the results can become section of your medical history. Occasionally medical id theft means another person is using your medical benefits.

Setting the Medical Information Bureau straight ? and restoring your medical identity ? in most cases requires legal counsel. Having a Pre-Paid Legal membership about olympic weight sets, you should have qualified a lawyer when you need it.

3.)Social Security Number Identity ? When your Ssn is used by an identity thief to file using the Internal Revenue Services (IRS), you are stuck in the centre using the goverment tax bill, along with a serious requirement for legal counsel. If the undocumented worker uses your Ssn to get a job, the income reported for the IRS from the W-2 will raise a warning sign as unreported income in your tax return.

Alternately, when the thief files before you, the internal revenue service will think that you have already filed and received your refund, and the return you submitted is a second copy or duplicate. Having a Pre-Paid Legal membership you need to get a lawyer and also to IRS audit legal services as needed.

4.)Character Identity ? It may look like something from a film, however, if someone assumes your identity and commits a criminal offense in your name, the drama is real. If the being detained or arrested for a criminal offense you didn?t commit, you will obviously desire to talk with legal counsel. The Legal Shield (if for sale in your jurisdiction) gives you use of legal counsel across The united states by telephone Twenty-four hours a day so if you feel detained or arrested. In times such as this, it is not likely your bank card company will probably be associated with a assistance. Quick detection is essential in the combat id theft. The Identity fraud Shield alerts you when there has been a change in your Experian credit report, which could be considered a change of address or plunge to your public records, including felonies.

5.)Financial/Credit Identity fraud ? This kind of fraud may be the one most commonly thought to be id theft: stealing your identity for profit. A thief may setup accounts in your name, use your existing accounts, borrow money against your property, or purchase cars or possibly a house in your name. When your credit continues to be exhausted ? and ruined ? the thief disappears and instead gives off you using the daunting task of clearing your personal name.

One of the best misunderstandings about id theft is that consumers usually do not generate losses. Actually, nothing could possibly be more mistaken. If the credit transaction is included by Regulation E, you merely have a couple of days to report a cost before you begin taking a loss for example site. If you don?t deny the debt within Sixty days, your financial institution is not obliged to relieve you of the debt. Because identity thieves often alter the mailing address on file with creditors, extremely common for victims to be not aware of a theft situation until months after the crime has occurred. In situations like these ? and others ? early detection and restoration services that come with the Identity fraud Shield and the legal services of your Pre-Paid Legal membership, offer an added layer of protection. The amount of time associated with dealing with id theft add up. It?s reported required 600 hours to deal with true id theft, would you understand just how the Pre-Paid Legal membership combined with Identity fraud Shield is an invaluable plan to your household. Pre-Paid Legal may be the only company that provides a suite of products that fights id theft before during and after the crime.

Remember we?re not immune, a seasoned thief can assume your identity and ruin your credit as well as your reputation. Some time you will find measures you can decide to try safeguard your identity, including Pre-Paid Legal?s Identity fraud Shield, we?re not immune. The main difference for many who employ the assistance Pre-Paid Legal offers is that once you become a victim, you will find the power of a lawyer and the connection with licensed investigators working on your behalf. There is a power to react.


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