Audacity by federal policy makers can be admirable, at least in some cases, but it can a bit more problematic in others. A case in point is the Food and Drug Administration's "deeming" of the internet to be a tobacco product. The FDA explained that it was exercising its authority under the Family Smoking Prevention and Tobacco Control Act which gave the agency an extensive set of duties, responsibilities and authorities over "tobacco products." more
On April 30, 2016, ICT Ministers of the "G7 group" concluded their deliberations in the beautiful city of Takamatsu, Kagawa prefecture in Japan. After months of preparatory work and two full days of discussions, the ICT Ministers of the USA, UK, France, Italy, Japan, Canada and Germany plus the European Union issued a joint declaration that: recognizes our digitally connected world; commits to mutual goals and, once again; reaffirms the multistakeholder model for the governance issues facing the deployment, development and evolution of the global Internet. more
A Brazilian judge on Monday issued a 72-hour ban on WhatsApp chat service throughout Brazil. The measure which took effect at 2 p.m. was issued on April 26 following a failed 2013 access order from a branch of civil police that investigates criminal activity online. more
Businesses in the financial services sector are among the most frequent targets of cybersquatters. In this free webinar, I will be joining Craig Schwartz of fTLD Registry Services to provide important information about how domain name fraud is affecting the financial services industries, including banking and insurance, and what businesses and consumers can do to protect themselves online. more
The WIPO Final Report published in April 1999, from which sprung the UDRP the following October, is useful in shedding light on what the assembled constituencies had in mind in agreeing to particularly contentious issues. One of those issues was whether registrants had to actively search trademark records before purchasing domain names. Other than paragraph 2 of the Policy which codifies registrants' representations, there is no guidance as to what registrants must do... more
The U.S. House of Representatives voted unanimously today to pass H.R. 699, the Email Privacy Act, closing a loophole that allowed law enforcement authorities to obtain old email and other digital communications without a warrant from the court. more
A just-launched ICANN "working group" (of which I am a member) will - eventually - help to determine the future of the Uniform Domain Name Dispute Resolution Policy (UDRP), the 17-year-old domain name arbitration system that has been embraced by trademark owners and criticized by some domainers; as well as the Uniform Rapid Suspension System (URS), the new (and limited) arbitration process that applies to the new gTLDs. more
As I pointed out in last week's essay, having trademark rights that come into existence later than registrations of corresponding domain names only gets complainants to first base; they have standing but no actionable claim. I also noted a nuance (not a difference in substance) in standing requirements between the Uniform Dispute Resolution Policy (UDRP) and the Anti-Cybersquatting Consumer Protection Act (ACPA). However, standing depends upon the specific facts of the case... more
There are two essential differences between the Uniform Dispute Resolution Policy (UDRP) and the Anti-Cybersquatting Consumer Protection Act (ACPA), one procedural and one substantive. The procedural difference is quite minor, a mere quirk that Panels adopted by consensus in the early days of the UDRP and deserves no more than a footnote. Under the UDRP, complainants have standing on proof that they have trademark rights when they file their complaints... more
President Obama has threatened to veto a backdoor attempt by a Republican-backed bill that would undermine net neutrality protection measures. The "No Rate Regulation of Broadband Internet Access Act", or H.R. 2666, proposes to prohibit the Federal Communications Commission (FCC) from regulating the rates charged for broadband Internet access service. more
Even before the introduction of new top level domains in 2014, Panels had grappled with the before and after the dot issue with country code suffixes. The traditional procedure is to compare the characters of the accused domain names with the characters of trademarks for identity or confusing similarity. But this did not exclude the possibility of reading across the dot. more
It was standing-room-only at the Congressional Trademark Caucus session in the Rayburn House Office Building in Washington, D.C. on Wednesday, April 6. The topic, brand protection in the new top level internet domain names, is still, it seems, a draw. With nearly two years' experience and statistical evidence of far fewer problems at far lower costs to brand owners than opponents of the program said would occur, it might be expected that the tone would cool. But the price of peace, I guess, remains eternal vigilance. more
The White House will not publicly support a controversial bill that would give law enforcement guaranteed access to encrypted data, according to reports. more
The two bookends of speaking one's mind are commentary and criticism, which is indisputably acceptable as protected speech, and (in order of abuse) tarnishment and disparagement. Defamation, which is a stage beyond disparagement, is not actionable under the UDRP, although tarnishment and disparagement may be. In ICANN's lexicon, tarnishment is limited in meaning to "acts done with intent to commercially gain" (Second Staff Report, October 24, 2009, footnote 2). more
President Obama, in March 2016, again stressed the need for better collaboration between the tech industry and the government. He referred to his own White House initiative - this has resulted in the newly-formed US Digital Service, which is trying to recruit the tech industry to work with and for government. One of the key reasons it is so difficult to establish trustworthy, good working relationships is the extreme lack of tech understanding among most politicians and government bureaucrats. more
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