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November 30, 2009

Another One for the Ridiculous Lawsuit File

Law.com's Legal Blog Watch reported on yet another ridiculous law suit that's out there right now. Erik Estavillo, an agoraphobic, has sued the makers of "World of Warcraft" for causing players to become alienated and suffer mental health problems. As a former agorophobic myself, I can assure you that this guy already has "mental problems," so even if this suit weren't frivolous, he'd be the wrong plaintiff for it. For more information, click here to jump to the original report by Legal Blog Watch.

November 13, 2009

Defeating Spam: A Movement Behind Which We Can All Rally

Let me tell you a little story. When I first started working in the field of real estate, I had a great idea for generating business. I decided to respond to all those spam emails I received with the following information: I was a homeowner, my home was worth $1,000,000.00, I had a current loan balance of $200,000.00, and I needed cash fast, so I wanted to get a loan for $800,000.00. If requested, I'd tell them that my credit score was in the 700's. I represented the perfect consumer.

Needless to say, I'd get a phone call immediately from a lender. When they called, I'd break the bad news to them. I'd tell them that I wasn't even a homeowner, but was instead a title attorney trying to get their business. Some were understanding, but others were furious. You see, they didn't actually send me the email. Some spamming service sent it and received my response, which the spamming service then sold to the lender. So, not only did I get to make a sales pitch, but they had to pay to hear it.

I realized very quickly that this probably wasn't the way to do business. If I angered all the lenders, I'd never get any referrals from them.

You, on the other hand (and me with respect to other spammers), are in a very different position.

If we all respond to the spammers, running up their advertising bills, it becomes financially impractical for them to use spamming services to advertise. The spamming services then lose their business and go broke. The result: no more spam.

There are two potential drawbacks.

#1: Most of the spam requires you to enter a phone number. If that's the case, either you're going to have to put up with a single call from them (at the end of which you tell them never to call you again), or you have to give them a fake number. If that number is unlisted, okay. If that number is the local pizza parlor or FCC hotline, see #2 below.

#2: I haven't researched the legality of this practice. My gut has me concerned that it could be some sort of misuse of telecommunications technology -- especially if you're giving another's phone number to the spammer -- which could result in civil or criminal penalties. On the other hand, I'm responding to their request addressed specifically to me. I wouldn't be a bit surprised if there were a way to do it that's 100% legal, or if illegal, never enforced or impossible to prove.

One of these days, I'll probably get around to researching the legality of this practice. In the mean time, I have work to do, and you shouldn't practice it unless you've gotten an attorney's advice on its legality.

Sooner or later, we'll get the bastards.

August 20, 2009

Stealing both a trademark and a domain name? You'll pay for both.

The United States Court of Appeals for the Eleventh Circuit recently held that when you are found liable for infringement (essentially, theft) of a trademark or service mark and you hijack someone's identical domain name (cyberpiracy), there are two separate wrongs you've committed, and you'll pay for both.

In St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, No. 08-11848 (July 9, 2009), Defendant Sanderson, an eye surgeon formerly employed by Plaintiff St. Luke's, had the registration information for two domain names changed to himself after leaving. Sanderson was found liable for both taking the domain names and for infringing the service mark, and St. Luke's was awarded damages (i.e., payment for harm) for both. Sanderson claimed that the two awards for damages were duplicate and, therefore, inappropriate.

The Court of Appeals disagreed.

First, the text of the Anti-Cybersquatting Protection Act ("ACPA"), 15 U.S.C. Sec. 1125(d)(3), states that any damages awarded under the ACPA shall be in addition to any other appropriate damages awarded in the case, and a claim of service mark infringement under the Lanham Act, 15 U.S.C. Sec. 1125(a), was appropriate in this case. So, even if the two damages awards are duplicative, the ACPA allows for both to be awarded. Second, however, these aren't duplicate awards. The key difference is that a case for cyberpiracy requires a showing of a "bad faith intent to profit" from a protected domain name, and so the award for damages served to punish Dr. Sanderson for his conduct in order to deter future violations of the ACPA by him. On the other hand, the award for damages under the Lanham Act was intended to compensate St. Luke's directly for its injuries and losses (for example, loss of business and profit) due to the service mark infringement.

The Court of Appeals added that this distinction between deterrence and direct compensation is consistent with how the Copyright Act (17 U.S.C. Sec. 504(c)(1)-(2)), a similarly worded statute, is interpreted, and as a result, other Federal Courts of Appeal have reached the same conclusion.

The lesson: If you steal the logo for "laserspecialist" and the domain laserspecialist.com, you'll pay for both.

August 04, 2009

You can hide, but I won't seek. I'll just delete you.

I have a saying: "Those who hide things generally have something to hide." If it's your name your hiding, that really makes me nervous. See my latest blog entry here. Originally posted August 4, 2009, on the blog, What About Clients?, on which I'm a regular contributor.