REASON FOR THE PAGE: As an active web page designer and content provider, I came up against the fact that the emerging area of "Cyberlaw" is becoming more and more a concern for people who create pages that go beyond detailing the author's favorite foods, or showing a collection of their favorite pictures of their cat Fluffy. I felt that a page going into some of the more salient points of cyberlaw was appropriate and perhaps needed.

For more on the Perils of Online Information Page Publishing, Please CLICK HERE .

A few important links :

http://www.loc.gov/copyright/ U.S. Copyright Office

http://www.uspto.gov U.S. Patent and Trademark Office

Electronic Frontier Foundation they support freedom-this is cool

http://www.patents.ibm.com/ patent searches

http://floridalawfirm.com/iplaw/index.html interesting internet law site

http://www.procopio.com/Resources/Library/Articles/net11.htm an interesting take on trademark and domain relationships

http://www.softwareprotection.com/usdigital.html The U.S. Digital Millenium Copyright Act

CONTROVERSIAL CONTENT :
The most common charge against a page critical or a person or business is probably one incorporating defamation and libel . For an such charge to have power, there must be falseness. A completely true statement is never, and cannot be, defamatory, no matter how negative it may be. Attorney Greg Abbott from Minnesota has a good page about defamation here at  http://www.abbottlaw.com/defamation.html#I.A.3

DOMAIN NAMES AS TRADEMARKS :
An interesting link regarding this topic is here. This is the page which touches on the appeal of the PANAVISION INTERNATIONAL v TOEPPEN case.   Another good informational source is http://www.patents.com/nsi/iip.sht. Another interesting page is titled WHY FEDERAL TRADEMARK LAW DOES NOT PROTECT INTERNET DOMAIN NAMES . The page addresses why "I. Domain names are not protectable" and " II. Domain names cannot infringe trademarks . " The author makes a very cogent, logical, and fact based argument to back up these assertions. Another interesting perspective on this issue is found at http://jolt.law.harvard.edu/low/articles/v9n2p483.html. More information can be found by checking out http://www.loundy.com/JMLS-Trademark.html

TRADEMARK and PATENT LAW GONE MAD :
During the remaining two months of 1999, a federal judge issued a preliminary injunction which barred "Barnesandnoble.com" from allowing customers to make purchases with a single mouse click. The reason? Amazon.com says it has patented this method and the court's remedy to this dire situation (page author adds this term "dire" sarcastically) was to require Barnesandnoble.com customers to use the "two click purchase" method. Is this the kind of stuff that merchandizing giants are using up federal court time for now? It is just the tip of the iceberg in what I term "copyright/trademark/patent madness on the Internet". Jerry Yang,co-founder of Yahoo.com is reported saying "People are getting patents on things that are too general". He goes on "...It's not healthy for patents to be used to stop other people from doing business". The patent office granted 1,390 patents related to the Internet in just the first half of 1999 (compared with just 648 in the whole year of 1997). There is such a backlog, that the Patent office has hired 500 additional examiners in its software and Internet staff (twice what they already had).

WHO IS AT FAULT FOR THE MADNESS ?
I place the blame on two parties. One party to blame is the person or company attempting to patent things that should be open to general usage. The other, is the Patent office which has broadened the scope of patentable items as they relate to the Net. Before, we thought of someone who invented a brand new "thingamabob" which uses new technology or old technology in a novel manner. But now, the Patent Office is approving applications to patent overbroad areas it calls "business methods". For example, Sightsound.com of Pennsylvania says it has the patent on the whole process/method of selling music via downloads of the digitally formatted music. They demand that anyone selling music this way, pay an online royalty of one percent. It is suing CDNow on this claim. Many people blame the Clinton administration for , in its effort to support the growth of technology related companies, has been far too liberal in granting software patents and patenting of so-called "business methods". My own view is that, the only one who is really going to profit from this nonsense, will be the lawyers.

THE SURGEON'S SCALPEL, NOT THE EXECUTIONER'S AX :
My observation and contention is that a general principle needs to apply to all forms of registered creations from copyright to trademark to patents, and it can be summed up in one word, SPECIFICITY !
There needs to be great specificity in what one can register and call as ones own. Whatever becomes legally the property of a business or person, should be defined with such specificity and uniqueness, that it would not diffuse into the ability of that business or person being able to interfere with a broad usage of the elements which make up that protected creation. For example, just imagine if someone patented "the wheel". Just imagine if you could trademark or copyright the word "selective" or " insurance". Not only would this generate a lot of problems by people who have legitimate right to use those words (or in the instance of the wheel, people who drive or invent things using a circular element which has a central hub), but it would just be completely wrongheaded and restrict free trade and free expression too much.

One of what I consider a wrongheaded notion is this whole "dilution of trademark" issue which became section 43(c) of the Lanham Act.

The US Federal Trademark Dilution Act of 1995 as it applies to the Internet.

What is the "dilution of a trademark"?

The Federal Trademark Dilution Act of 1995 has been in effect in the United States since January 6, 1996. This Act  is now Section 43 (c) of the Lanham Act, 15 U.S.C. Section 1125(c). For the first time, causing dilution, via a commercial   use, of a "famous" trademark is made a violation of United States law, thereby giving a trademark owner an additional remedy  in protecting its goodwill. Since state anti-dilution statutes are only in effect in approximately 25 states (New York, Massachusetts, Illinois and California have such statutes), this new Federal Statute provides a powerful tool for the protection of famous marks and trade names in the Federal arena, on a national basis.  More on this topic can be found at : http://www.iael.org/d6dilute.html

Another good link on this topic is found at :   http://lawoffices.net/tradedom/sempap.htm

What is not actionable under this law ?
It is advised from various sources that the following are not actionable under the Federal trademark dilution Act :

(4) The following shall not be actionable under this section:

(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion
to identify the competing goods or services of the owner of the famous mark.

(B) Noncommercial use of a mark.

(C) All forms of news reporting and news commentary.

To restate this ,The Trademark Dilution Act makes clear that certain actions will not be subject to the provisions of the Act. Specifically, the Act states that fair use (such as comparative advertising), noncommercial use (such as noncommercial web pages), and all forms of news reporting and news commentary (which would apparently include reporting and commentary appearing on the Internet) would not constitute dilution under the Act.

REGARDING STATE LAWS ABOUT DILUTION OF TRADEMARKS :
Twenty-five states had already enacted trademark dilution statutes by the time the federal Act was passed. These state statutes generally provided for similar protection for dilution as provided under the federal Act, except that the state statutes rarely included a provision for the collection of monetary damages. These state statutes may be of little consequence in the future, since the federal Act specifically states that federally registered marks may no longer be the subject of state law dilution claims. By so declaring, the federal Act effectively preempts the existing state dilution acts for most famous marks.

THERE ARE CERTAIN ELEMENTS OF ESTABLISHING A SUCCESSFUL CASE ON TRADEMARK INFRINGEMENT
The sine qua non of a good trademark infringement case have been well established under both federal and state case law. Basically, any plaintiff in one of these claims must prove that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark. The plaintiff then must show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff. If a person who constructs a page makes a very prominent disclaiming statement stating no association directly or tangentially with the product or service, this is a strong bar to any such action.

Courts have generally looked at the following eight factors regarding confusion likelihood :

1) Similarity in the overall impression created by the two marks (including the the look of the mark, phonetic similarities, and underlying meanings)
2) Similarities of the goods and services involved (including an examination of the marketing channels for the goods)
3) the strength of the plaintiff's mark
4) any evidence of actual and real confusion by consumers
5) the intent of the defendant in adopting the mark
6) the physical proximity of the goods in the retail marketplace
7) the degree of care likely to be exercised by the consumer
8) the likelihood of expansion of the product lines.

The first five of these factors are examined in every trademark infringement action.
The last three factors are the most common ancillary factors that are considered by a court.
The first two are probably the most important.

If you put up a web site which criticizes a person or business, here are some ways which the person or business who is the target of your criticism may respond.

A BULLYING TACTIC USED BY ATTORNEYS
Big business (or public figures) do not like people publishing web sites which expose negative sides of their operation or their life. If the business (or person) finds that a site which publishes things about them that they do not want the public to see, they can ignore the site, or they can try to bully the owner of the site into either making it inoffensive or try to make them delete the site completely. if they decide not to ignore the site, usually they will have an attorney write a letter to the page author (as well as the ISP which hosts the site) and threaten to sue them. The attorney's letter will usually allege that the site either infringes copyright or trademark rights, and/or says that the page author is making statements which are "false,misleading,defamatory, and/or libelous".

I have seen some of these attorney letters. One I received , from the law firm of Pitney, Hardin, Kipp, and Szuch, I have posted online so that others can see what they are up against. A copy of a letter I got from a law firm purporting to represent
Selective  Insurance (they claimed me using their name on my page was a violation of trademark law...lol). Click here for their letter.

I also sent an addendum, instructing the person who wrote me from the law firm, what dilution of trademark is and what violations are actionable and what are not (from my understanding and research )...click here.

Now, my site was reporting what I content were actual events and true facts about "Selective Insurance". Truth is an absolute affirmative defense to ANY charge of libel and/or defamation. Why? Because an essential element which defines libel or defamation is that the statement must be FALSE. You cannot have libel or defamation if everything you say is true.

What is happening nowadays is Inappropriate allegations of Internet trademark infringement in which companies begin to threaten action against ANY site which may have its trademark or some mark which appears similar to its trademark.

Another issue that arises is the difference between competing domain names and "sub-domain" names. The disputes that arise over domain names generally involve "second level" domain names. The second level name is the name directly to the left of the top level domain name in an Internet address. What that means is that if one had the domain http://www.alphabet.com, the word "alphabet" would be the so-called "second level". A domain name is an internet address that must be registered (to this point, with Internet Solutions,Inc. (used to be called "InterNic"). Sub-domains are URLs which the owner of a registered domain may give out to other parties, such that "alphabet.com, could establish a URL called "http://joeblow.alphabet.com" wherein "Joe Blow" could have his own page "hosted" by alphabet.com.

Ultimately, it is a smarter technique on their part to ignore you, because, if they publish to a third party that you published lies (i.e. alleging defamation or libel on your part in the publication of the page, this certainly may open THEM up to a libel suit ). Also, the more they make of it, the more they risk the national media picking the story up. We have an old saying in Texas, "If you find a fresh cow pattie, you don't make it smell better by picking it up and waving it about! You just give everyone else downwind a whiff". Well..with the internet...the WORLD is downwind.

Another tactic which can be used is what I call a "straw man" tactic. The person or business which does not like your site can have someone generate spam e-mail and have a link to the site they wish to destroy. Most free sites and other ISPs have "Terms of Service" agreements which says that if you engage in spam e-mail (or apparently if someone else does and links to your page and the ISP gets any complaints) they can withdraw your account and privileges and unceremoniously, delete your files and account. Homepage.com (using the name only to refer to and specify the business and not has a trademark infringement) , for example, in the case of the page of mine which they revoked my membership privileges, claimed to have gotten complaints of spam e-mail which had a link to my page (they did not even accuse me of generating the spam e-mail and despite my demands to produce examples of this alleged "spam e-mail" or even of the complaints, they have stonewalled and not responded with these examples.

Allegations of  Copyright Infringement-

Another tactic that can be used is the "infringement of copyright". This tactic is much like the trademark infringement. Many people believe that something must be registered with the Office of Copyright for them to have the copyright. As a copyright holder myself, I have to advise you that this is not true. The laws governing copyright in the United States are written to support the notion that when you create an original work (e.g. graphic art, music,sculpture, writing, etc.) at that time you have generated a copyright for that creation and that you hold that copyright. Legal registration of your copyright is often a good idea if you want to pursue litigation against those persons or businesses might use your work either without your permission, or who might claim ownership and authorship for their own.

Copyright law itself is a fairly complex and involved topic. For example, with writing, there is the "fair use" principle in which one has the ability to quote from a work (as when you are reviewing the work). In general, if you are concerned about whether you can use something or not, either DON'T or opt to contact the owner of that copyright and ask for permission to use it. As with trademark law, most of the time, the person who holds the copyright or trademark, is urged by law to contact you and ask you to discontinue using the materials which they are claiming trademark or copyright to, so you usually have some time to decide what you want to do about the material.

Advice if you intend to erect a site critical of a public person or business :

1) Make certain that your site does not contain copyrighted materials of that company or person.
2) Make certain that your site contains truthful statements and allegations.
3) Make certain that you have a disclaimer statement at the beginning of the page which makes it
clear that your page is not associated with, nor is it the official website of that person or business. After reading that disclaimer, the "reasonable person" should be clear in his or her mind that this is a private, non-commercial site which is offering truthful information on the business or individual and that every effort to authenticate the statements.
4) Make clear that your page content does not necessarily reflect the views and opinions of the ISP or hosting company which hosting your page and also, that you are the one responsible for content.
5) Since you are generating the page from scratch, you have the right to post a notice of copyright, giving the year of copyright and your name, and also, reserving exclusive rights to your creation.

I wouldn't let all of the above cautions keep you from posting a site critical of someone or some business which has wronged you or others. But try to reduce your liability. Also, remember, bullies will often threaten to do something even when they don't have the ability to carry through with it. And bullies are most generally, ignorant cowards.

If you have comments, please feel free to contact me by clicking here. Thank you for visiting.