The recent buzz across the internet yesterday was the equivalent of a 21st century “Sit In” as websites and internet users demonstrated against SOPA and PIPA.  SOPA stands for Stop Online Piracy Act, which is related to the recently (October 26, 2011) proposed legislation [H.R. 3261] introduced by the Lamar S. Smith (R-TX) who was also a sponsor of the recently enacted American Invents Act.  The Bill was originally presented to the House Judiciary Committee and builds on the similar PRO-IP Act of 2008 and the corresponding Senate bill [S.B. 1867], the PROTECT IP Act (PIPA).

The proposed SOPA/PIPA legislation (the Bills) were designed to increase the remedies available to copyright holders and to increase the liability of copyright infringers.  The Bills provide for enhanced criminal and civil remedies including the right to obtain monetary damages, seek court orders against websites accused of enabling or facilitating copyright infringement and to stop online commerce with those sites. Depending on who makes the request, the court order may bar electronic commerce with any website accused of facilitating the infringement including the ability to stop online advertising networks and payment facilitators from conducting business with the infringing website, barring search engine links, and requiring Internet service providers to block access to such sites. The bills would also criminalize unauthorized streaming of copyrighted content, with a maximum penalty of five years in prison for ten such infringements within six months. The bills also grants immunity to ISPs that voluntarily take action against websites, and provides for damages against false accusations from copyright holders.

Supporters of the bills include lobbyists for Hollywood, the Pharmacy Companies, media firms and the U.S. Chamber of Commerce. They claim it protects the intellectual property market and corresponding industry, jobs and revenue, and is necessary to bolster enforcement of copyright laws, especially against foreign websites. To support their claim, the supporters cite Google’s $500 million settlement with the Department of Justice for its involvement with ads targeted to consumers offering prescription drugs from Canadian pharmacies.

Opponents of the bill claim that the bill would violate the First Amendment, would effectively create a censorship ban upon the internet, will cripple the free flowing information aspects of the Internet and will threaten whistle-blowing and other free speech activities.

The results of yesterdays sit in was statistically amazing, the protests included blackouts of portions of Wikipedia and Google’s website, online petitions and blogging related activities.  As a result of the protests it has been reported that 162 million people experienced the blackout at Wikipedia and another 8 million took Wikipedia’s suggestion and looked up their congressional reps from their site. Google reported that an estimated 4.5 million people had signed its petition asking lawmakers to reject the SOFA/PIPA legilstation.  Twitter said 2.4 million SOPA-related tweets were made.  WordPress reports that at least 25,000 WordPress blogs joined the SOPA and PIPA protest by blacking out their blogs entirely, and an additional 12,500 had posted a “Stop Censorship” ribbon.

While the outcome is yet to be determined, they have certainly illustrated the power the internet can have on the dissemination of information, something which may be lost if the internet becomes censored.  In addition, the information gathering aspect of the internet was additionally illustrated when the one reader targeted a sponsor of the bill and reported that a website operated for him is allegedly using copyright material in violation of the proposed legislation.

Google continues to buy more patents from IBM, in fact it appears that
Google has bought another 188 U.S. patents and 29 patent applications from IBM.

Some speculate that Google has been buying patents from IBM and others to help it defend its Android software from the challenges involving Apple’s iPhone.

Google’s largest deal so far involved the purchase of Motorola’s Mobility for $12.5 billion to acquire the mobile patents. So far, Google has purchased more than 1,000 patents from IBM.

The recent purchased patents, although undisclosed, relates to patents used in cellphones. The transfers were registered with the U.S. Patent and Trademark Office last week.

The Internet Corporation for Assigned Names and Numbers (“ICANN”) is registering a new top-level domain xxx, despite numerous objections from various groups. Some believe that the creation of the .xxx top-level domain (TLD) will effectively create an official internet ‘red-light district’ while others hope that this will help get the pornographic websites off of the main internet trafficways and into the back alley’s.  Whether you like it or not, companies have to address these issues now, or pay a lot down the road.

Typically, with a new top-level domain, a “land grab” begins with everyone rushing to get great names.  That will selectively begin on November 8, with the general public registration process beginning on December 6th.  However, unlike prior registration processes, the new .xxx registration process is allowing owners of registered trademarks who do not want to see a “.xxx” at the end of their brand name to pre-register to prevent others from tarnishing or stealing their trademark or brand names in connection with the new .xxx domain suffix.

Sunrise Registration .XXX
The registration process allows for different mechanisms for trademark owners to protect their brands in the new .xxx TLD.  If preregistration is not addressed, there is a risk that someone can associate your brand name with sexually explicit material – which may cause customers to be misdirected to when searching for your products or services on the Internet.

The sunset provisions include:

• a defensive registration process during the “sunrise” period when .xxx takes effect
• a Start Up Trademark Opposition Procedure (“STOP”)
• a “Rapid Takedown” procedure for the clearest cases of abusive registrations

Sunrise Process
The sunrise period begins 7 September 2011 until 28 October 2011. During this “sunrise” period for .xxx to take effect, trademark owners not in the adult entertainment industry can request that their registered marks be blocked from registration by third parties using the .xxx domain. This will require payment of a onetime fee.  If you are seeking to preregister an adult website having a registered trademark, you can also preregister your domain name during this same time period.

Registration during the sunrise period, if successful, will allow the trademark owner the ability to reserve or block the registration of its trademark within the .xxx TLD.

Opposition Procedure
If preregistration process is not utilized, the STOP procedure may allow a trademark owner to prevent a proposed infringing use from being activated on the .xxx registry for a limited time, while an opposition procedure takes place.  The STOP procedure must be utilized during this short Oppostion time period, otherwise the domain will be registered.

Rapid Takedown
If a trademark owner wishes to contest the use of a domain name utilizing a trademark within the registered .xxx domain, the trademark owner may initiate a “Rapid Takedown” procedure. In order to initiate such an action, the trademark owner must provide “a short and simple statement of a claim involving a well-known or otherwise inherently distinctive mark and a domain name for which no conceivable good faith basis exists” in the .xxx registry. The claim may be reviewed within 48 hours whether to initiate the rapid takedown procedure, although such determination will not prejudice either party’s ability to pursue another dispute mechanism.

Please contact us if you have any questions regarding the .xxx domain registration process. (913-345-0900)

After the recent announcement by Google related to Motorola’s patent portfolio, HTC has added additional pressure on Apple by filing a patent infringement suit against the Iphone maker. Previously, Apple had sued HTC for infringment of Apples’ patents and HTC lost.  Now, HTC has a score to settle against the Iphone maker and based upon their pleading, they may be trying to knock this ball out of the park, by seeking an injunction, treble damages and attorney’s fees.

Some of you may remember when Apple filed suit against HTC back in early 2010 alleging that the company infringing 20 patents related to the iPhone’s user interface, underlying architecture, and hardware.  Here is a brief explanation of each of the twenty patents.  In the suit, Apple filed over 700 pages of exhibits in federal court.  Subsequently, the ITC (International Trade Commission) partially supported Apple’s claims when an ITC judge deeming that HTC had infringed two of Apple’s patents.  In July, 2011, HTC acquired graphics company S3G in a deal valued at $300 million in a move that some say was designed to purchase patents to fend off Apple in the ongoing lawsuit. Previously, the ITC made a preliminary ruling that Apple has infringed two of S3G’s patent claims.  Then Apple filed a new suit against HTC with a U.S. trade panel over some of Apple’s portable electronic devices and software.  Now, HTC has filed a separate suit against Apple based upon previously acquired patents (2008 and 2009).  Of course, HTC will probably add additional claims or an additional suit based upon the S3G patents.

While, the current litigation playbook employed by Apple is not uncommon between technologically sophisticated competitors, it is reminiscent of  the sort of playbook deployed by Microsoft against Apple so many years ago in which so many Apple loyalists came to their aid.  While the Fat Lady has not yet begun to prepare for her solo, one wonders if this sort of tactic may cause some Apple aficionados to start changes sides.

Protecting Intellectual Property in Social Commerce

The Internet and e-commerce are becoming the standard mode of business in today’s global economy.  The current projection is that e-commerce in 2011 will account for 188 billion dollars with a hundred billion dollars in growth being projected by 2015 as a result of mobile commerce, social commerce and daily deal sites, like GROUPON.  As the social media world continues to displace more traditional forms of advertising, it is becoming more and more important for companies to monitor, evaluate and enforce their intellectual property (IP) including trademark and copyright concerns.  Today some of the largest vehicles for commerce involve the Internet and include EBAY, FACEBOOK and GOOGLE.  In addition, promotion of products involves other electronic media sites like TWITTER, YOUTUBE and various blogs.  Each of these non-traditional modes of commerce are frought with potential illegitmate use of intellectual property, including:

• Trademark infringement, including the non-authorized use of a companies name, slogan, brand names and logos in connection with the sale of competing goods or services;
• Copyright infringement, including the non-authorized use of text, graphics, images, sounds and recorded video materials;
• Unlawful counterfeit or knock-off products which copy the companies protected product,
• Invasion of Privacy or Publicity by posting non-authorized images of a person;
• Defamation, such as slander or libel for making false public statements about a person on the Internet; and
• Breach of Confidentiality by disclosing confidential information such as trade secrets to others.

Protecting your Intellectual Property

The first step to curbing the theft of intellectual property begins with protection and notifying the world of your legal claim.  Protecting your intellectual property involves registering it with a governmental organization, either at the local or national level and usually involves some form of legal advise in deciding how to register the work.  Whether a company chooses to register its trademark/service mark or copyrights, it should still notify everyone of its claim to protection under trademark or copyright laws by using an appropriate notice of its claim to its intellectual property in connection with its copyright or trademark materials.  In some cases, this may involve the use of a superscript TM, in other cases it may involve the use of the © designation or in other cases the ® designation.  Before deciding which of these notices to use, you should contact an attorney to advise you, but in any event, you should properly mark your trademark and copyrighted material with the appropriate legal designation.

Monitoring your Intellectual Property

Once you have protected the mark or work and properly placed the appropriate notice on the work, you should develop a plan for detecting and monitoring any unauthorized trademark, copyright and trade secret activity.  You should begin by developing a reasonable policy and educating internal users about the appropriate usage of the company’s intellectual property, its name, materials, brands and confidential information.   The volume of postings and other electronic messages sent using social media can be overwhelming.  Some people post over 200 messages a day on Facebook.  Because of all of the social media activity, it can be difficult to keep pace with potential violators.   In addition, infringing copies of copyrighted works can be unlawfully accessed and shared by thousands, or even millions, of Internet users in a given day.  But not all infringements are equal. For example, some YouTube video’s have a short life, watched by only a few people before being superseded or buried by more recent postings. Some videos or blog postings, however, are very influential or are read by many people and are therefore more problematic or urgent. In some cases, a post a wide following may be viewed many times or is otherwise influential. In other cases, a posting may be linked or forwarded to others.   Therefore, it is important to set up a reasonable, rationale plan to educate and monitor intellectual property violations.

Creating a Company Branded Site

In addition to policing against unlawful violations, the company should set up its official Internet accounts.  Besides an official company website, many companies need to create official Facebook, Twitter, Ebay and Google accounts using the company name or generally recognized brand names.  Once created, only authorized individuals should be able to access these accounts and post messages, pictures or blogs.  It is recommended that there should be some accountability to who has the responsibility and permission to post information on the Internet with multiple people monitoring the ongoing Internet activities.  One way to monitor for various activities would be to set-up a daily Google alert or subscribe to commercial watching services related to various keywords relevant to the company’s name or other intellectual property concerns.

Recording Infringement Activities

Monitoring violations of IP rights should include the ability to recording information about the unlawful activity or the dissemination of the unlawful material.  This information may be critical to demonstrating the harm and potential damage caused by the unlawful activity.  Because the social media consciousness is fleeting, any evidence of unlawful activity may be lost in a relatively short time, making it difficult to recover from the inflicted harm.  Without evidence, it can be difficult to prove that any unlawful activity actually took place or that if it did, that there was any real impact as a result of the unlawful activity.  Therefore, it is important that a policy for monitoring infringement activity include the ability to record and preserve evidence of any wrongdoing which can, if needed, be proven at trial if a suit is brought to stop the unlawful activity.

Conclusion

Protecting, monitoring and enforcing intellectual property rights against infringement might seem impossible; However, with the proper development and implementation of a strategy against infringements, an companies intellectual property asset can continue to grow and prosper in today’s e-commerce world.