BOOKMARK
PRINTACPA
False Sense of Security
Wed, 03/10/2010 - 11:30 — Steve Levy — PermalinkThe Ninth Circuit Court of Appeals, in US v. Kilbride, No. 07-10528 (9th Cir. 2009), upheld fraud and conspiracy charges arising from the defendant’s sending of spam emails containing advertisements for pornographic materials. Key to this ruling was the fact that the spam emails contained false and non-functioning email addresses in the “From” field.
More interesting, however, is the fact that the defendant’s use of a privacy service to block access to the Whois information for the domain names they used for such emails constituted “materially falsified” information as defined under the CAN SPAM Act. Specifically, the Court stated ““It should have been clear to Defendants that intentionally falsifying the identity of the contact person and phone number for the actual registrant constitutes intentionally decreasing the ability of a recipient to locate and contact the actual registrant, regardless of whether a recipient may still be left some avenue to do so. We therefore conclude Defendants had notice that their conduct violated.”
You may remember that the New York Federal District Court recently sentenced Alan Ralsky, the self-proclaimed “King Of Spam”, and others to prison terms of several years for their participation in a pump-and-dump stock-trading scheme in which the defendants would artificially and temporarily inflate the price of a given stock by the use of spam emails touting that stock.
These cases raise the questions of whether the Federal government is taking a more aggressive approach in its prosecution of spam purveyors within its jurisdictional reach and also what, if anything, this could mean for civil domain enforcement actions. Even if not subject to the criminal terms of CAN SPAM, cybersquatters on the defensive side of UDRP and ACPA actions could find themselves subject to this more aggressive approach to enforcement.
This could be good news for brand owners since a high percentage of spammers, cybersquatters and others rely on private or false Whois information in their attempts to avoid being held accountable for their illegal actions.
Cybersquatting - Not Just for Brands
Wed, 02/10/2010 - 10:42 — Josh Bourne — PermalinkOn January 29, the Coalition Against Domain Name Abuse (CADNA), which FairWinds helped found and runs, hosted a policy forum here in Washington, D.C. The forum focused on emerging challenges for the Internet community in 2010, specifically the future of ICANN under the Affirmation of Commitments (AOC) and potential reform to the Anti-Cybersquatting Consumer Protection Act. Attendees heard from two panels regarding these issues, which featured brand owners, online policy experts and Congressional staff members. The keynote address was given by Senator Stephen Urquhart (R-UT 29th District), the Chairman of the Utah State Senate Transportation and Public Utilities and Technology Committee. Urquhart recently introduced the E-Commerce Integrity Act to the Utah state legislature. This bill is designed to make the state of Utah more business-friendly by creating greater deterrents to prevent cybersquatting: firstly, the bill raises the damages that can be levied on a cybersquatter, and secondly, it holds affiliates of domain name registrants liable if it is found that they benefit from cybersquatting behavior.
In addition to Sen. Urquhart, representatives of Jay Rockefeller (D-WV), Chairman of the Senate Commerce, Science, and Transportation Committee; and Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee spoke on the panels. Cybersquatting is an issue that hits close to home for the Senators they work for: PatrickLeahy.com and JohnDRockefeller.com both point to pay-per-click (PPC) sites. (JayRockefeller.com, however, does lead to the Senator’s Web site.) SteveUrquhart.com also leads to a PPC site.
When discussing the problem of cybersquatting, much of the attention often gets focused on businesses and infringements on brands and trademarks. However, individuals like politicians and celebrities are also frequently the victims of squatting and other malicious conduct online. It’s great to know that Senator Urquhart and Congressional staff members understand this issue, and we’re happy to have them involved in efforts to create a safe, stable and flourishing Internet.
Bad Intent on Goodwill.com?
Wed, 12/23/2009 - 11:56 — Steve Levy — PermalinkSince our report a week ago on the hostess.com decision, a claim under the Anti-Cybersquatting Consumer Protection Act (ACPA) has been filed in the Federal District Court for the Eastern District of Virginia by Goodwill Industries International, Inc. against Cyber2Media, Inc., the owner of the domain goodwill.com.
As with the word "hostess," the word "goodwill" is arguably a descriptive term. However, this case is very different from the hostess.com example because the defendant uses goodwill.com to forward visitors to a pay-per-click Web site featuring links to the plaintiff’s site and to other charitable organizations. By using the domain name this way, the defendant appears to be attempting to profit of off Goodwill’s fame as a charitable organization. By registering goodwill.com and hosting links to charitable organizations, the defendant is likely hoping to take advantage of confused visitors to the site who will assume that the links are approved by Goodwill Industries International. This sort of proof of intent was the missing element in the hostess.com case and seems here to be strong evidence of lack of legitimate use of the domain and the defendant’s registration of the domain in bad faith.
In an interesting side note, the domain savechildren.com was recently ordered to be transferred to the owner of the well-known Save The Children trademark in a UDRP decision which did not make any mention of the potentially descriptive nature of the phrase "save children." In that case, however, the respondent did not file a response and the domain resolved to a pay-per-click Web site featuring links to complainant's competitors and other unrelated products and services.
Disorder in the Court
Wed, 04/29/2009 - 16:45 — Josh Bourne — PermalinkSouthern Company (Southern), a Fortune 500 company that provides energy related services in the South, filed for an injunction against Dauben, Inc, a corporation that owns over 600,000 domain names, to suspend its use of the domains sotherncompany.com and southerncopany.com. Southern, which is a Fortune 500 gas & electric utility, had filed a lawsuit against Dauben over the registration and use of sotherncompany.com and southercopany.com—Southern claimed that Dauben was engaged in typosquatting and was therefore in violation of the Anti-Cybersquatting Consumer Protection Act (ACPA). The district court found that Southern was likely to prevail in its lawsuit and awarded the injunction to prevent any further damage to the company until the matter was officially resolved.
An appeal filed by Dauben, however, vacated the injunction. The appellate court found that the district court was too quick to assume the likelihood of Southern prevailing in its lawsuit against Dauben. Looking to ACPA, the appellate court determined that Dauben may succeed in its defense using the Act’s “fair use” clause and that the district court did not adequately consider how Dauben’s use of the domains caused “irreparable injury” to Southern.
I’m not a trademark lawyer, but in reading the decision, the language that particularly struck me centered around the appellate court’s dismissal of the “irreparable injury” claim. The appellate court stated that the district court inaccurately assessed the confusing similarity of the typo domain names to southerncompany.com and determined that “the likelihood of confusion test in trademark infringement law is different, and more comprehensive, than the test for ‘confusingly similar’ under ACPA.”
CADNA has been pushing for a more comprehensive ACPA for years now. In order for ACPA to be an effective piece of legislation—in other words, a piece of legislation that creates a deterrent against cybersquatting, which is what it was intended to do when it was passed a decade ago—it needs to be brought up to date. Cybersquatting techniques have evolved and continue to evolve; we need ACPA to evolve along with them or else cybersquatters will continue to find loopholes to avoid accountability.
