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Archive | January, 2012

Claiming Joint Ownership of Copyright

Co-author, Gerald M. Levine Claiming joint ownership of copyright signifies a collaboration beyond making suggestions or performing editorial services.  This is clear in the definition of the relationship in the Copyright Act of 1976, Sec. 101.  A “joint work” is “work prepared by two or more authors with the intention that their contributions be merged […]

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Parties in Same Business and Operating in the Same Geographical Area

Distance is not only geographical and temporal but also measured by product or service offerings. The principle underlying temporal distance is that the respondent could not have registered the domain name in bad faith if the trademark had not then come into existence. Subsequent bad faith use (except in the view of panelists who argue […]

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Assessing Similarity of Part for Confusing Similarity of the Whole

The test for establishing confusing similarity is relatively modest. Low though the bar is set, however, it is not satisfied by simply showing that the trademark and the domain name bear a similarity of parts. “The concept of ‘confusingly similar’ lies at the very heart of all trademark conflicts, where the test is whether the […]

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When Does “In Book Form” Include Grant of EBook Rights?

Co-author Gerald M. Levine In agreeing to publish a work publishers typically demand author “grant and assign” an exclusive license to “print, publish and sell” the work for the “term of copyright and all continuations, extensions, and renewals thereof” in stipulated languages and territories. In modern publishing agreements the language is clear that the grant […]

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Injunctive Relief Against Domain Name Registrants for Unauthorized Registration of Personal Name

Unless personal names have achieved trademark status they are not protected under the UDRP and there can be no injunctive relief against domain name registrants.  It may be abusive but it is not actionable. Report of the Second WIPO Internet Domain Name Process, The Recognition of Rights and the Use of Names In the Internet […]

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Inadvertent Infringing Use of Domain Name

There can be inadvertent infringing use of domain name without incurring forfeiture. Complainants of trademarks on the lower end of the classification scale have a greater burden to prove bad faith registration even where there is proof of infringing use, albeit quickly cured. Proving a trademark is only the first step in the process of […]

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Legitimate Noncommercial or Fair Use of Domain Name Identical or Confusingly Similar to Trademark

Lego is one of those trademarks instantly recognizable in the marketplace. The number of UDRP proceedings against Lego infringers runs into the dozens (I’m probably underestimating). Here is a baker’s dozen decided in December 2011: <legodiscounter.com>, <legoninjagofiretemple.com>, <legoverhuur.com>, <legoland florida.com>, <legolandorlando.com>, <legosoft.com>, <legowatches.org>, <lego-fan.net>, <legomen.com>, <legostarwarsgames.org>, <legoharrypotterquidditch match.net>, <legoarmory.com>, <legocitycorner.com>. How can a respondent escape […]

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False Memoirs and Other Misbehavior

Co-Author Gerald M. Levine What better to start the New Year than with grimy tales about authors, literary agents and publishers? It cannot truthfully be said that in the annuls of publishing there has not been false memoirs and other misbehavior including deliberate misrepresentations, breaches of contract and “extraordinary” fraud. One such (you may remember […]

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Respondent’s Right or Legitimate Interest Trumps Complainant’s Trademark Right

There have been a number of cases lately in which complainant has either failed to prove a prima facie case or been unable to overcome respondent’s evidence of its right or legitimate interest in the disputed domain name. Respondent’s use of the domain name is a critical factor, but so too is the trademark. Longevity […]

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