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Archive | October, 2011

Unprotected Speech in Blogland

Co-author Gerald M. Levine Not all speech in blogland is protected although as a general rule there is no exposure to liability and nothing illegal in a blogger communicating opinion or making truthful statements  of matters of public interest in her own name or anonymously. Speech is protected under First Amendment issue. Courts carefully safeguard […]

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Application of Equitable Bar for Not Acting Timely on Infringement

There is a strong consensus that a complainant’s demand for transfer of a domain name that is identical or confusingly similar to its trademark for which the respondent lacks rights or legitimate interests is not barred by the equitable doctrine of laches. This is consistent with the recommendation in the WIPO Final Report that “a […]

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Collective Work (Compilation) (Q & A)

What do I need to know about copyright on a collective work?  One of my stories is being reprinted in an anthology? Unless you have signed an assignment, you do not lose your copyright. I assume that this grant is non-exclusive and you are not prevented from having the story reproduced by yourself or others. […]

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Challenging Transfer Order Under the Anticybersquatting Consumer Protection Act

There is no administrative appeal to a UDRP order, but the aggrieved party has the right to challenge an order denying or transferring the disputed domain name in a court of law. For the respondent challenger, the UDRP provides a limited stay of 10 days to commence a legal action “against the complainant in a […]

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Self publishing With E-Book Publishers (Q & A)

I am planning on self publishing through an e-book service.  Will my rights be transferred to the publisher by means of the terms and conditions of the agreement? Rights granted are only those that you agree to give.  The balance are retained.  Think of a contract as a proposal.  It is not a one-way street.  […]

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Hidden Perils of Publishing Contracts

Co-author Gerald M. Levine There are a number of hidden perils of publishing contracts that are essentially terms to control the licensed property. Authors should not fixate on the myth of “standard” terms, but there are terms that publishers are adamant about that may have to be adjusted to accommodate particular circumstances. One such term […]

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Proof of First Use in Commerce Earlier than Domain Name

Ordinarily, a domain name registered prior to the complainant’s acquisition of a trademark could not have been registered in bad faith “because the registrant could not have contemplated the complainant’s then non-existent right,” WIPO Overview paragraph 3.1. The trademark and disputed domain name in Spacebound, Inc. v. Amaben Internet Services Inc., D2011-1403 (WIPO October 3, […]

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Symbol © on a Manuscript (Q & A)

I am planning on submitting a book manuscript to publishers.  Is it permissible to place a copyright notice on the manuscript? You are permitted to place the symbol © on your manuscript with your name and date of creation.  A copyright exists from the moment a copyrightable work is created. Registration is not a prerequisite […]

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Threatening Complainant as Grounds for Abusive Registration

“Given the human capacity for mischief in all its forms” (said one Panel) “the Policy sensibly takes an open-ended approach to bad faith, listing some examples without attempting to exhaustively enumerate all its varieties,” Worldcom Exchange, Inc v. Wei.com, Inc., D2004-0955 (WIPO January 5, 2005) (<wei.com>). There are three acts that are presumptively abusive, namely […]

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Recourse for Copyright Infringement (Q & A)

I haven’t registered my essay.  What rights do I have against someone who has copied from it? An infringer can be sued in U.S. federal court, but only after a registration has been filed for the work.  One of the privileges of registration is standing to maintain an action.  If registration precedes infringement and you […]

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Requesting and Giving Releases, Consents and Permissions

Releases, consents and permissions are related contractual concepts. They are requested and given primarily to permit the use of rights to intellectual property, authorize the use of materials owned by third parties or avoid invasions of privacy rights. Publishers typically require authors to perform these clearances on forms typically prepared by the publisher. So, for […]

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Adopting Complainant’s Trademark For a Criticism Website

Free speech is not listed as one of the Policy’s examples of a right or legitimate interest in a domain name, but it is clearly subsumed in “fair use” and qualifies as a defense under paragraph 4(c)(iii) of the Policy. The defense rests on the proposition that speaking in opposition to a trademark owner was […]

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Who Owns the Copyright in a Commissioned Work? (Q & A)

I’m a freelance writer.  I’ve just completed a manual for a business group.  Our agreement is that the group will publish and distribute the manual to its members.  I intend to use the manual in my own workshop.  Can I copyright the work in my own name? You did no say whose name will appear […]

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Titles and Characters as Trademarks (Q & A)

I’ve heard of writers getting trademarks for their books.  How does one do this and what has to be done? Titles and characters as trademarks are possible but not personal names. Trademarks perform a different function than copyrights. First of all, understand the purpose of a trademark and why it is not for a single […]

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Identity of Terms Within a String Do Not Add Up To Confusing Similarity

Paragraph 4(a)(i) of the Policy is not satisfied by simply showing that the trademark and the domain name bear a similarity of parts, unless it suggests the whole. Whether the domain name is “confusingly similar” to the trademark focuses on differences in the composition of the string of letters, words or numbers. Prefixes and suffixes […]

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What Is Copyright Infringement?

In assessing claims for copyright infringement similarity is not enough. Verbatim copying is clearly infringes but the standard needed to prove a case of copyright infringement is “substantial similarity.” In a notable case a couple of years ago by a cookbook author aggrieved by another author allegedly poaching in her niche (sneaking vegetables into children’s […]

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Speculating in Domain Names and Monetizing them Lawful Commercial Activities

That a domain name is identical or confusingly similar to a complainant’s trademark is only part of the evidentiary journey. When that fact is coupled with proof that the respondent lacks any right or legitimate interest in the domain name it strengthens the trademark owner’s claim. Taking advantage of the trademark’s reputation to attract Internet […]

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Missing Evidence in Failing to Prove Prima Facie Case

Panels early recognized that complainant could likely not marshal conclusive proof that respondent lacked rights or legitimate interests in the domain name because the evidence was under the respondent’s custody and control. The solution agreed upon within a few months of the inception of the UDRP proceedings was to lower the proof bar and shift […]

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Copyright Protection Extends to Expressive Material

Co-author Gerald M. Levine Copyright protection extends to expressive material. Strings of effectively arranged letters, words, phrases, clauses, sentences and paragraphs are the essence of expression. They are owned by the author who creates them and protected by copyright law, although infringements are not actionable unless the work is registered with the Copyright Office. If […]

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