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Technology Law Source

Mapping the evolving legal landscape

A new Ohio weapon against patent trolls?

Posted in Intellectual Property, Patents

Ohio may become the next state — after Virginia, Georgia, and thirteen other states — to take on the fight against patent trolls. A bill pending in Ohio’s General Assembly, H.B. 573, would provide additional tools to thwart abusive tactics by patent trolls. But how useful those tools may prove in the battle against the problems they are intended to remedy is yet to be seen.

“Patent troll” is a pejorative term without a well-defined meaning. It is widely used to describe an entity that does not make or sell any products or services, but acquires patents from others and then seeks to exact licensing fees through abusive tactics, including meritless assertions of patent infringement. Because defending against patent infringement claims can be an expensive endeavor, those targeted by meritless lawsuits often opt to pay patent trolls’ relatively low demands rather than aggressively defend against the claims in court. It is a decision that can leave business leaders steaming because, in their view, their companies are essentially being subjected to a shake-down by the threat of a meritless lawsuit.

In addition to frustrating business leaders, abusive practices in enforcing patents can stymie the economy. When companies are forced to settle meritless claims of infringement, they have less to spend on payroll, research and development, and other expenses that add value to the company and make it more likely to contribute to a thriving economy. Thus, patent trolls (as defined above) harm their targets, but they also negatively impact society more generally. Continue Reading

Delegation slows this week but the gTLD program is still going steady

Posted in Domain Names, gTLDs, Intellectual Property, Trademarks

Three new gTLDs have been delegated to the root zone since our last post. The newest group of gTLDs to be delegated include:

  • .gent
  • .nrw
  • .scb

gTLDs in Sunrise period — update

The following gTLDs are now added to the long list of gTLDs available for sunrise registrations so far this month: Continue Reading

ICANN continues to rapidly expand the Internet this summer — newest statistics released

Posted in Domain Names, gTLDs, Intellectual Property, Trademarks

As of July 4, 2014 ICANN announced that out of the 1,930 applicants received in 2012, 1,146 have been invited to contracting. Contracting is the process through which ICANN will contact eligible applicants and engage with them through execution of the registry agreement. Contracting is part of the transition to delegation phase of the New gTLD Program. To date, 464 registry agreements have been signed and those new gTLDs have entered the delegation phase of the program.

Next six gTLDs jump into the Internet pool

More than 300 new gTLDs have now been delegated to the root zone. A gTLD is delegated to the root zone and becomes a part of the Internet once it has completed the new gTLD program. The newest group of gTLDs to be delegated is:

  • .deals
  • .melbourne
  • .city
  • .schmidt
  • .cuisinella
  • .cancerresearch

Continue Reading

Beware of the Antitrust Laws’ extraterritorial reach

Posted in Information Technology

Our colleagues Jay Levine and Jason Startling recently wrote an interesting post on Porter Wright’s FedSec Law Blog. Though the article covers some interesting international and antitrust issues, the case Jay and Jason focus on is one that many in the technology industry may wish to follow. With technology products in particular, more and more goods are sold outside of the United States, yet seem to find their way back into the U.S. economy — often as a resale product or as part of a finished downstream product. The question that arises for many companies is whether U.S. antitrust law applies to that foreign sale. The article discusses how the  Foreign Trade Antitrust Improvements Act (FTAIA), governs this conduct.

The Internet revolution — new gTLD update

Posted in Domain Names, gTLDs, Intellectual Property, Trademarks

Since our last blog post, the total number of domain name registrations among all new gTLDs has reached 1,414,766. There has been little movement this week on the leader board. The leaders are:

Number

New domain

Total registrations

1

.xyz

250,731

2

.berlin

136,703

3

.club

78,767

4

.guru

64,123

5

.photography

39,868

6

.email

34,799

7

.link

33,781

8

.在线 (online)

33,726

9

.today

29,669

10

.tips

25,661

ICANN has delegated four new gTLDs to the root zone:

  • .active
  • .suzuki
  • .place
  • .direct

Protecting the home front

It is important to remember that each newly delegated string that is set to launch is potentially one new threat to a trademark owner’s brand unless it has proactively protected its registered trademarks. Continue Reading

Do you know what your employees are posting while they’re at work?

Posted in Electronic Discovery, Intellectual Property

Our colleagues at Employer Law Report posted about an interesting case in which FedEx was sued because one of its employees used the company’s internet connection to post allegedly defamatory comments. The Court of Appeals of Indiana affirmed the trial court’s decision dismissing the plaintiffs’ claims based on Section 230 of the Communications Decency Act.

In short, the court found that FedEx and another employer (500 Festival) that was sued were providers of an “interactive computer” service, that the claims sought to treat the defendants as a “publisher” or “speaker” of the comments, and the defendants did not develop or create the comments. The case also raised an e-discovery issue that highlights the importance of having updated legal hold procedures in place in addition to appropriate social media and computer usage policies. The plaintiffs argued that FedEx spoliated evidence because it failed to preserve the logs for its proxy server which filtered Internet traffic for thousands of users and did not preserve electronic records until a year after being added as a defendant.

The court found that there was no spoliation because FedEx had properly responded to non-party discovery served on it before being added as a defendant (including disclosing its document retention policy for the logs) and the plaintiffs did not complain about FedEx’s responses, including its overbreadth objections. The plaintiffs also argued that 500 Festival spoliated evidence because the identify of its employee was known and 500 Festival failed to preserve the information on the employee’s work computer. Interestingly, the court acknowledged that 500 Festival should have preserved this information, but the court declined to sanction the failure to preserve because the plaintiffs did not specifically tell 500 Festival to archive the contents of the employee’s computer and 500 Festival was immune from liability anyway under Section 230.

Though this spoliation ruling came out in favor of the employers, not all courts would have seen it the same way. Read the full Employer Law Report post and a copy of the court’s decision in Miller v. Federal Express Corporation.

Florida ramps up data breach notification law

Posted in Data Breach Notification, Information Technology, Privacy

The Florida Information Protection Act of 2014, aimed at strengthening Florida’s data breach notification law, goes into effect tomorrow, July 1, 2014. The act contains major changes to Florida’s existing data breach notification statute and makes it one of the toughest in the nation.

Shortened notice period

For example, notice to consumers must be given within 30 days of the discovery of the breach or belief that a breach occurred, unless delayed at the request of law enforcement for investigative purposes or for other good cause shown. Previously, the law allowed 45 days for such notice. Fines may be imposed on private entities for failure to comply with the notice provisions ($1,000 per day for the first 30 days following a violation of the notification requirements; $50,000 for each subsequent 30-day period thereafter; and, if the violation continues for more than 180 days, an amount not to exceed $500,000). The notice requirement applies to personal information contained in any computerized data system and is triggered when unencrypted personal information may have been acquired by an unauthorized person. Continue Reading

It’s game time — 140 new gTLDs are now publicly available

Posted in Domain Names, gTLDs, Intellectual Property, Trademarks

To date more than 1.3 million new second-level domain registrations have been registered within new gTLDs that have launched. The top 10 on the leader board are:

Number

New domain

Total registrations

1

.xyz

214,789

2

.berlin

136,371

3

.club

76,035

4

.guru

63,234

5

.photography

39,066

6

.email

34,172

7

.在线 (online)

33,605

8

.link

33,456

9

.today

28,887

10

.tips

25,120

Continue Reading

The Redskins trademark decision — great media interest, overhyped reaction

Posted in Intellectual Property, Trademarks

The June 18, 2014, decision of the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board (TTAB) cancelling six federal trademark registrations for trademarks used by the Washington Redskins professional football team has received substantial media coverage and generated great interest among the public.

The impact of the decision has been widely misstated in early news reports. Harry Reid, the Senate Majority Leader, stated on the Senate floor: “The Redskins no longer have trademarks. They are gone.” According to the Majority Speaker’s statement, anyone who wants to sell T-shirts with the name Redskins can now do so.” Highly regarded publications have advised their readers: “The ruling, if it stands up to an appeal to the U.S. Court of Appeals for the Federal Circuit, would mean that the NFL no longer has the exclusive right to sell merchandise and apparel branded with those specific uses of the nickname.”

The truth is far different. Though undoubtedly a matter of significance in the trademark area, the legal impact of the TTAB’s decision is likely to be far less influential than these news reports suggest. Most importantly, the decision, even if ultimately upheld, does not mean that the team has lost all rights in the marks or that the marks are not enforceable under state or federal law. To put the case into perspective, let’s look at what happened, what the decision means to the NFL, and what it means for the rest of us. Continue Reading

LinkedIn class suit proceeds because endorsement (spam) emails might cause users reputational harm

Posted in Information Technology, Privacy, Social Media

Have you ever received an email from LinkedIn with the invitation: “I’d like to add you to my professional network.”? If you did not respond, did you receive a reminder email a week later? And another one a few weeks after that? If you did, or if you were one of the LinkedIn users who (inadvertently) sent out one of these “endorsement emails,” then Perkins v. LinkedIn (N.D. Ca. June 14, 2014) is a class action lawsuit against LinkedIn you might want to keep an eye on.

The crux of the complaint, which has been brought by nine individual plaintiffs as a class suit, is that LinkedIn violated several state and federal laws by harvesting email addresses from the contact lists of email accounts associated with the class plaintiffs’ LinkedIn accounts and used the contacts to spam their users’ contacts with LinkedIn ads. The class complaint alleged five causes of action:

  1. violation of California’s common law right of publicity;
  2. violation of California’s Unfair Competition Law (“UCL”);
  3. violation of the Stored Communications Act (“SCA”);
  4. violation of the Wiretap Act; and
  5. violation of California’s Comprehensive Data Access and Fraud Act (“CCDAFC”).

The district court is allowing the case to proceed on the California right of publicity claim, but not on any others. Here is how the court came to that decision. Continue Reading