Tag: Internet

The “Dot-Brand” Explosion: What You Need To Do Now

Dickinson Wright LogoEarlier this year the company that manages the global internet address system (the Internet Corporation for Assigned Names and Numbers, or ICANN) accepted the first round of applications for new “generic top level domains,” or gTLDs – the part of an address that goes to the right of the dot. Most businesses register domain names that use the familiar “.com” suffix or one of a handful of other available options such as “.org” or “.biz.” The new program makes it possible to register a business name, a trademark – indeed, virtually any word in any language – as a TLD in its own right. Depending on whose crystal ball you consult, this Dot-Brand initiative could revolutionize the way the internet works, or hopelessly complicate it, or both.

The initial application window recently closed. The list of applications offered a few surprises, a number of omens for the future – and some important action items for brand owners who did not apply for a gTLD this time around.

  • One surprise was the sheer number of applications. Originally, ICANN was anticipating 500 or so. In the end there were almost 2,000 (at $185,000 apiece!) The unexpected volume slowed down the application process, and will surely slow the review and approval process even more.
  • Many of the applications were for famous brand names (.chevy, .nikon, .walmart) and several were for geographic locations (.paris, .nyc, .amersterdam). The most interesting ones were for generic terms like .art, .tech, and .store, which will be of interest to a great many people. Lots of brand owners in the auto industry, forexample, may want to be part of the “.cars” domain.
  • Not surprisingly, many of these generic domains are the subject of multiple applications: thirteen for .app; seven each for .mail and .news; nine for .shop. There will be a lengthy dispute-resolution process, probably culminating in an old-fashioned auction to the highest bidder, to see who ultimately gains control of these domains.

A recent survey of attorneys responsible for protecting trademarks found that while 91 percent were aware of the new gTLD program, only 36 percent had read the Applicant Guidebook, which explains how the process work. That Guidebook, and the initial application list, suggests some important steps you should take now to protect your brand:

1. Make sure no one has applied for a domain that incorporates one of your trademarks. A formal objection period for addressing such issues is now open and will run until January 2013.

2. Identify “generic” domains of interest, and investigate the applicants and their business plans. If you’re in the financial services sector, for example, you’ll want to know who’s behind the applications for .bank, .broker, .finance, .fund, .insurance, .investsments, .lifeinsurance, .loans, .money, .mutualfunds, and others. A 60-day comment period, open to anyone, runs through August 12; if there is something ICANN ought to know about one or more of the applicants or proposed domains, now is the time to tell them.

3. Start planning for defensive domain-name registrations in appropriate generic and geographic domains. Depending on the business you’re in, you may want to make sure you are the first to register your company name and key trademarks within appropriate domain names – before someone else does. The “someone else” could be a competitor, or just an old-fashioned cyber-squatter of the sort brand owners have been dealing with in the .com sphere for years. And don’t forget about domains like “.sucks,” where having someone else register your brand could be embarrassing.

The best defense is a good offense. Starting in October 2012, for a small fee you will be able to list your brand names in ICANN’s Trademark Clearinghouse; anyone that tries to register your brand as a domain name will be advised of your rights.

Update on Advanced Micro Devices (AMD) Trade Secret Misappropriation Case: Judge Hillman Issues Narrow Interpretation of the Computer Fraud and Abuse Act (CFAA)

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As originally discussed on this blog back in February, a lawsuit brought by Advanced Micro Devices (AMD) against former employees accused of taking AMD trade secrets with them to competitor Nvidia has been ongoing and a recent opinion in the case highlights the uncertainty surrounding the Computer Fraud and Abuse Act (CFAA).

A recent opinion issued by Judge Timothy S. Hillman narrowly interpreted the CFAA in this case. Judge Hillman declined a broad interpretation of the CFAA and held that AMD’s allegations in its complaint are insufficient to sustain a CFAA claim.

The relevant portion of the CFAA provides that it is a violation of the CFAA to:

Knowingly and with intent to defraud, [access] a protected computer without authorization or [exceed] authorized access, and by means of such conduct [further]the intended fraud and [obtain] anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period.

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There exists a circuit split on the interpretation of this clause. As Judge Hillman noted, the 1st Circuit has not clearly articulated its position on the issue. The broad interpretation defines access in terms of agency or use. That is, whenever an employee breaches a duty of loyalty or a contractual obligation and acquires an interest adverse to their employer, then all subsequent access exceeds the scope of authorized access. Proponents of the narrower interpretation argue that the intent of the CFAA was to deter computer hacking and not to supplement common law trade secret misappropriation remedies and therefore fraudulent means must be used to obtain the information initially.

Judge Hillman utilized a narrow interpretation of the CFAA and held that AMD had not pleaded sufficient facts to maintain a cause of action under the CFAA. AMD had pleaded that the defendants used their authorized access to computer systems to download and retain confidential AMD information which they retained when they left to go work at Nvida. The complaint, while alleging the defendants had the intent to defraud AMD, provided no facts which support the allegation that the defendants obtained the information through fraudulent or deceptive methods.

Judge Hillman did not outright dismiss the claim given the truncated evidentiary record and has allowed AMD the opportunity to plead specific details indicating that some or all of the defendants used fraudulent or deceptive means to obtain the confidential information and that they intentionally defeated or circumvented technologically implemented restrictions to obtain the confidential information. If other judges in the 1st Circuit follow Judge Hillman’s approach, plaintiffs will need to ensure that they plead with sufficient detail that the defendants obtained the information through a fraudulent or deceptive method as opposed to simply obtaining the information through permissible access.

Future of Tribal Internet Gaming Subject of Oversight Hearing

 
 
 
On November 17, 2011, the Senate Committee on Indian Affairs is conducting an oversight hearing to discuss the future of tribal Internet gaming. There are several witnesses from government regulatory agencies, tribal governments and gaming associations, and the gaming industry who will offer testimony regarding the use of the Internet to serve tribal gaming operations in the future. The Internet is a largely unregulated medium which has seen increased use by commercial interests to conduct business operations and exchanges. Recently, in the case of Comcast v. FCC, the federal Court has held that the FCC lacks the ability under the FCC’s ancillary authority in the Communications Act,to regulate Internet Service Providers like Comcast. In the Comcast case, the FCC attempted to prevent Comcast from using network management operations which allegedly excluded non-Comcast applications from its Internet network. Comcast challenged the assertion of FCC authority in regard to regulating the Internet under the Communications Act. Prior to this case, the FCC classified the Internet as an informational service as opposed to a common carrier like a traditional telephone company. Under the Communications Act and FCC regulations, a common carrier is subject to a wider range of FCC regulation than is an informational service. The decision by the Court in Comcast upheld the classification of the Internet as an informational service and as a result, the Court determined that the FCC had no authority to regulate the Internet, such that it could impose punitive action against an Internet Service Provider such as Comcast.On a similar front, states are generally allowed a minimal role in regulation of the Internet. States are permitted to regulate the Internet only so far as the action to be regulated occurs entirely within the state and the action does not involve interstate commerce. Thus, many tribes are not subject to state regulatory jurisdiction when it comes to the Internet. A question which may be raised as a part of the discussion about to occur in the Senate this week should involve the ability of the states to regulate gaming if it occurs over the Internet on an Indian Reservation or gaming facility. The push to regulate Internet gaming may also raise questions about the Communications Act and whether it will have to be amended to allow federal agencies an expanded role in regulating the Internet. There are no Internet Service Providers who appear to be testifying at the upcoming Senate hearing and it would likely be prudent at some point to include them in future discussions. After all, it is the Internet Service Providers who will provide gaming operations with the connectivity to the Internet, service the Internet connections to ensure reliability and speed, and most importantly, provide the necessary Internet security to prevent cyber attacks or the loss of customer personally identifiable information.

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