4LgnTbCZqE2nh7oyD0P07ZLT4wJCzDtrc: December 2012

Sunday, December 2, 2012

Using Seminars to Convert Prospects For Intellectual Property Legal Professionals Into Clients

A couple of weeks ago, I got a letter from a law firm inviting me to a seminar covering employment law. Now, I am sure the content for the seminar was pretty good, but the letter came out of the blue but this topic is not a key issue for me right now.

I want to use this experience to discuss how Intellectual Property Lawyers can use seminars more effectively to get high-quality clients.

The three major questions you have to think about when planning seminars are:

1. What information will you provide that will really improve your prospects' lives or show them how to take away any fears and frustrations? 2. How do you attract prospects who really want to listen to what you have to say? 3. How do you attract prospects with the money to pay for the services you offer now?

Intellectual Property lawyers first have to build a list of opt-in prospects within their target niche(s), and then provide relevant information to this list that shows them how to eliminate any Intellectual Property-related problems they face..

Before sending out any invites to seminars, IP legal professionals have a bit of work to do. First of all, think about YOUR desired outcome from the seminar. Basically, you want the seminar to convince prospects that have not bought your services yet to do so. For many IP legal professionals, seminar invites are the first point of contact in their lead generation campaigns so they want prospects to buy services AFTER attending the seminars.

Given this, you want to avoid a key mistake many IP legal professionals make when trying to use seminars to attract new clients...selling the seminars before getting into their prospective buyers' minds and building relationships with them.

Now, you may ask why this is necessary. You could simply get names from a list broker and do a marketing campaign to advertise the seminar. True, but the whole purpose of this article is to show how you can improve your success rate in terms of lead generation and client attraction.

So I will highlight some key messages related to this:

1. Find out the conversations going on in your prospects minds. 2. Make sure you develop effective multi-step campaigns to prospects within a specific niche to advertise the information you have that they are looking for, or point them to where they can find it. 3. Build your position of authority within your target niche by giving your prospects free information that shows them how to solve their IP problems or at least explains difficult concepts into easy to understand formats (at this stage, you don't discuss the services you offer). This can be done via blogs, free reports, articles, etc. 4. Build your opt-in list by capturing customer details and then make sure you provide much-needed information to your list on a regular basis (e.g. via newsletters, email bootcamps, free reports, etc).

If you are an Intellectual Property lawyer that has failed miserably in the past to get enough clients from seminars you previously run, then go through the four steps above first before inviting people to seminars. This will improve your response rates, and fortunes.

And this is why...by going through the steps above, you market your seminars to potential attendees that have already made the decision to give you their details so that you can interact with them and give them valuable information. If you have already shared valuable content with prospects by the time you make them aware of the seminars (e.g. via blogs, reports or emails), you will have demonstrated the fact that you know your stuff, are willing to focus on building relationships with people and know what your prospects' needs are.

And here is another fact - you don't have to run FREE seminars. If what you are going to provide during the seminar is extremely valuable, then the prospects on your opt-in list will recognize that, and will pay to attend. If you run free seminars, you will always have people that attend even if they have no intention whatsoever of ever buying from you. You want to get those that want to do so, and are willing to make a financial commitment (which does not have to be huge) to learn how to take away any pain they are under.

Some Intellectual Property legal professionals will claim to have done well running free seminars to cold lists. That is great! Remember, I am not saying this strategy would never work. I am just pointing out that you can get a significantly better response to seminar invites if you build relationships with your prospects first as I have outlined above.

Think about this as well...If you are having two-way conversations with prospects, you can tailor your seminars more effectively to give attendees information they really want, and are willing to pay for, because you know what is important to them (not you). It also gives you the opportunity to prime them so that they attend the seminars with a certain level of knowledge regarding Intellectual Property law that they want to have to solve their problems.

This means a change in business model for many businesses, in which you use seminars to 'close the deal' with prospects you have already built relationships with, rather than using them as an initial lead generation tool.

If you automate the communications to your opt-in list, you will find this is a much easier strategy to get high-quality leads as opposed to simply trying to target prospects who have never heard of you. That is hard - cold calling is just not comfortable and most of the people you target don't want to be sold to. They want the option to learn from you, interact with you and to then decide to ask you for your services rather than the other way round.

Benefits of Understanding the Value of Your IP Starting Your Career As An Intellectual Property Lawyer Do You Need a Lawyer to Respond to a UDRP? What Is the Protection of Business Names Under Intellectual Property Law? Hire Patent and Trademark Attorney to Accelerate the IPR Procedure Every Innovative Irish Idea Deserves to Be Protected Correctly in Law

Is Your Lawyer or Law Firm Bragging That They Have You or Your Company As a Client - Loose Lips

Social networks can be dangerous if you are someone who owns a small business. It's far too easy to give important information away, details about your company that your competition can use against you. I am always amazed at how many small business owners list their clients, and have their customers come and post information about themselves on their profile page. As soon as they do that, they just alerted the competition that they are a buyer of those types of goods or services, therefore the competition might try to "friend them" and steal them away.

Of course, this is not the only thing that business owners and entrepreneurs do that can hurt them in the competitive world of business. Often business owners talk too much about their future plans, and what they are doing to their vendors, customers, employees, government inspectors that come in, and even their law firm. Oh, now I have your attention. You probably thought that lawyers have a strict code due to the "client privilege rules" well, I would suggest to you that you shouldn't kid yourself.

Lawyers and law firms often brag about their client lists and even if your lawyer personally never mentions that you are a client, someone else at the law firm might mention it. They know things about your business that you don't want your competition to know, and they are liable to spill the beans in casual conversation at the bar, the local watering hole that is, if not the actual bar. And they do it all the time. In fact, I noted that one of the law firms I used when I was in business, often bragged about its client in its brochures, even listed a few on the website.

They were actually using the brand names of larger corporations which they represent as proof that their law firm was worthy of taking on new clients. Perhaps even worthy of charging you increased legal fees for services. This can be a real problem in a competitive world, and I would submit to you that loose lips sink ships, and it is often people you don't suspect that are giving away your company's most important information and intellectual property.

A lawyer at the law firm you use could discuss a negotiation with a new vendor, and upcoming merger, or any of a number of things that can hurt you competitively in the marketplace. Indeed I hope you will please consider all this and think on it.

Benefits of Understanding the Value of Your IP Starting Your Career As An Intellectual Property Lawyer Do You Need a Lawyer to Respond to a UDRP? What Is the Protection of Business Names Under Intellectual Property Law? Every Innovative Irish Idea Deserves to Be Protected Correctly in Law

How Do You Protect Your Information Products? Part 1

We infopreneurs (information entrepreneurs) are a breed apart in the publication industry. We specialize in making money with information products and at the same time we give away a lot of our information products. We know that free stuff sells stuff. We have learned that lesson well.

All profitable infopreneurs usually give away products to build an "opt-in" mailing list. They then use this mailing list and the permission granted by the opt-in system to sell, up-sell, and to build a marketing funnel that lets them sell increasingly higher priced products to the same clients.

We qualify our freebies by insisting that redistribution of these information products be distributed with all our identifying information and links back to us. We want to freely give but always expect ultimately to profit while helping others.

After all, infopreneurs are information entrepreneurs, and entrepreneurs expect to make money. So, how do we balance creating widespread availability of our products with some degree of protection?

With printed books (as opposed to digital books), two methods are used to identify and protect the author's rights.

Copyright is the first method. It protects the rights of the author and restricts the product's use and dissemination by others. It protects the specific expression of ideas but cannot protect the actual facts and ideas. Copyrights are used for protection of both written and electronic information products. Placing a copyright symbol, the date of the copyright, and the owner of the copyright on hard copies or digital works provides the first line of defense against someone using your work as their own. I suggest that you place a copyright notice with the date of production even on your drafts. It provides one more piece of evidence of your authorship if a question of authorship arises later. Registration of an information product by the author through nationally and internationally recognized "serial" (identification) numbers provides a second line of defense. These include ISBN numbers (for books); ISSN numbers for periodicals (both printed and electronic); and ESN's (for electronic media). These three are not the only "serial" numbers in use, but are the most common ones. Each provides some degree of protection for the author by registering the information product under the publisher or author's name.

You are not required to have a copyright or any other type of identification number on your publications, but not having one is an open invitation to unscrupulous readers to steal your works.

Commercialisation Of Technology: Key Issues To Remember

1) Universities or other private and public institutions regularly undertake research on various areas. Very often the research has as its ultimate goal commercialization, profit-making and winning competition. Research may be commercialised in two ways: (i) New companies are created which are provided with access to the intellectual property rights (IPR), facilities or assets of one party; (ii) Technology may be made available to existing companies. Typically, this would involve the commercial licensing of research work directly to industry, for example, to large pharmaceutical or medical companies.

2) For a collaboration to take place there needs to be an agreement between the parties in place clearly setting out the contributions of each party and of course the rewards should the technology be proved successful. This is achieved by entering into a Technology Transfer Agreement, which addresses the following:

1. Nature of the IPR involved/transferred Define exactly what rights are to be transferred.

2. Method of the transfer The next most fundamental issue to be resolved is the method by which the IPR will be transferred from one or more parties, that is, by assignment or licence.

a. Assignment An outright assignment gives the assignee greater freedom in relation to the technology, since in a typical assignment, there are few, if any, controls placed on the assignee by the assignor. In the event of insolvency, the assignee has an asset that can be sold to create value for the shareholders. Of course, if the assignee has become insolvent it may be because there is no market for the product. However, if the product has failed for other reasons, such as lack of marketing support, lack of follow-on funding, or issues affecting customers a willing buyer may exist for the technology. The practical benefit is that it should be easier (or cheaper) to raise funds if the assignee has some form of assets. Investors usually prefer to invest in a company which owns and has freedom to use all of its assets. If an outright assignment is not possible, this can also be achieved with an exclusive licence.

b. Licences A licence gives the parties a greater feeling of control and also an ability to participate in any successful commercialisation of the technology through royalty streams, as well as being able to participate in any growth of the spin-out business as a shareholder. A licence also ensures greater flexibility for the party; it may be possible to provide that the licence terminates if certain conditions are fulfilled (for example, if the licensee fails to exploit or to exploit successfully the transferred technology). The licensor then has the option to take back the licence and perhaps proceed with a new licensee.

A compromise worth considering is a licence with an assignment trigger built in. The trigger can be linked to the value of the licensee, the return to the licensor(s), or to some other factor. In this way the licensor(s) are protected at a time when the spin-out is most vulnerable and, from the licensee's point of view, should it succeed, it is very likely that it will end up owning the technology outright.

In other scenarios, the licensee can be expected to agree to certain performance criteria. These will often be linked to the number of sales or revenue generated from sales or other commercial exploitation of the licensed technology. Failure to meet the criteria will see the licence come to an end or for the licence to become non-exclusive instead.

3. Consideration The consideration for the transfer of technology can be made up of equity, up-front payments, royalties, or a mixture of all three. This tends to be an area which is most heavily influenced by policies adopted from time to time by the various parties to the agreement. Other factors may affect the value, for example, where one or more of the contributors to the technology was not an employee, but for example, a post-graduate student or consultant. In fact, a post-graduate student will generally fall outside the definition of "employee" under the Copyright, Designs and Patents Act 1988, and so the IPR may not belong to the university.

4. Other rights and obligations Whatever the nature of the IPR transfer, the parties need to agree what continuing rights (if any) the parties will have to use the IPR. If a party is a university it is generally agreed that the university can continue to carry out non-commercial research and teaching using the transferred technology. However, it is worth investigating whether there are existing research projects, such as PhD theses, which need to be completed. If so, specific rights should be carved out of the transfer agreement as necessary to ensure that these projects can be completed. Also it is important to have a clear agreement as to which party will bear and be responsible for: (i) any prosecution and other protection of the transferred rights costs (for example prosecution of patent applications so that they become patents granted!) and (ii) any regulatory licences and approvals.

5. IPR Infringements The key question to be addressed is which party will have primary responsibility for dealing with any IPR infringement of the transferred technology. It is important for the spin-out company/licensee to ensure that it has the appropriate rights to take action against a third party which is infringing the transferred technology in some way.

This article is for general purposes and guidance only and does not constitute legal or professional advice.

Protecting Your Rights When Selling Your Ideas

Lots of people have great and profitable ideas but lack the capability or the resources to get them to the market. These inventors often look for companies to help them manufacture or sell their invention. If you have a very profitable and very unique idea or invention but does not have the money to have it patented before selling it to a company, you may want to secure an intellectual property protection by asking that company to sign a "nondisclosure agreement" to make sure they'll not steal your ideas or your invention.

You may also want to hire an experienced lawyer to help you draft it. Generally, these agreements provide monetary penalties if the parties failed to comply with the conditions or are proved to have breached the contract. You may want to avoid imposing very high penalties that no companies will be willing to sign it.

Without proper intellectual property protection, winning a claim in a district court is very difficult. If someone copied your ideas or invention you may want to hire an IP lawyer to assess the merits of the case. If a company copied your product including the packing to a certain point that it creates confusion to the buying public, you might have a great chance of winning the case. This is the reason why you need to have the necessary intellectual property protection for your invention.

However, some companies are clever enough to modify your design, enough to avoid any possible legal issues. And you must keep in mind that a full lawsuit in any court can be very taxing and very expensive. In most cases, your lawyer first, through a demand letter (cease-and-desist letter) asking the offending company to stop any further manufacturing and sale of the contested product and possibly pay for damages. If the parties fail to arrive in a consensus, a lawsuit usually follows.

The lawsuit can cost you thousands of dollars though out the litigation process and can take so much time from your business. There is also no guarantee that you'll win the case. You also have to prove in court that your business severely suffered from the alleged product infringement

In the long run, the best way to protect your ideas or invention is by being very cautious on whom you disclose your ideas and getting the right intellectual property protection for your invention. You may also want to get some referrals before finally sharing your ideas to anyone.

Managing Intellectual Property Rights and Contract Law

Intellectual property rights are by their nature restrictive rights. Rights owners are granted the power to prevent third parties using their intellectual property without their consent. When it comes time for materials in which IP rights subsist to be exploited, it is the law of contract that is called upon to do permit to use the materials, subject to the conditions of contract.

Contract Law

A contract is simply a legally binding agreement. Parties to contract are at liberty to agree to what may take their fancy and the terms that may please them. The law imposes limitations on what may be contracted for when the courts find that an agreement is contrary to public policy or otherwise restricted by statute. With this background, owners of intellectual property are free to agree to deal with intellectual property in any way that they see fit.

Contractual Dealings with Intellectual Property

Dealings with intellectual property take two basic forms. Firstly, intellectual property rights are personal property, which means that they may be assigned to another person, subject to very limited exceptions. An assignment of intellectual this property rights conveys the title to the rights to another person. Far more frequently however these personal rights are licensed to other businesses for a limited purpose or a limited period, in accordance with the particular terms of contract. Amongst many others, movies, music, software, architectural plans, trade marks, designs, patents may be licensed to businesses or the public at large to use them subject to specified conditions and limitations. These licenses, which are in essence permissions, allow the licensee to perform some act in respect to the intellectual property that would otherwise amount to in infringement of the owner's intellectual property rights.

In the commercial environment contracts allow such dealings to happen.

Copyright is the palladium of product of the arts, such as manuals, computer programs, commercial documents, leaflets, articles, song lyrics, sound recordings, photographs, film, sound recordings and many others. Businesses that trade using copyright works such as these are entirely reliant granting licenses to their customers on specified terms to trade using their stock in trade.

Contract law allows these companies to restrict and limit use of these copyright works to a fine degree. For instance a photograph might be licensed for use in print media for a set price and electronic media for an entirely different price, or indeed prohibit these uses in their entirety.

Patent Rights

Of all the different types of intellectual property rights, it is patent rights that provide the most extensive and complete monopoly over inventions. Products and processes which are inventive may be patented. As the monopoly rights granted are so extensive, so the bar to surpass for registration is higher than any other form of IP protection. Use of patent rights may be managed in the same way as other intellectual property rights.

Confidential Information and Know-how

A common form of license is that granted by non-disclosure agreements. Non-disclosure agreements are legally binding contracts designed to impose restrictions upon information released to another person, pursuant to the terms recorded by the agreement. In the absence of a non-disclosure agreement, the discloser of information would be left with their rights under the general law to protect the information released from unauthorised disclosure or use. The general law requires a claimant must show that the circumstances of the case justify the court finding that the information (1) retained the requisite quality of confidence, (2) was imparted in circumstances importing an obligation of confidence, and (3) that the information has been misused. Establishing such circumstances requires meticulous preparation of evidence. Thus in the vast majority of cases proving to the satisfaction of a court that trade secrets or confidential information have been misused is an onerous exercise.

Contract law simplifies this. If it were the case that a contract has imposed obligations of confidence between the parties, the discloser is not simply left with his rights at general law. The non-disclosure agreement imposes separate and independent rights to the general law, and indeed when properly drafted, may far exceed the rights that a claimant would otherwise be left with under the general law. As with other types of contracts, non-disclosure agreements may be framed to allow different types of uses of the information released - what those terms are rely upon what the parties intend to achieve.

Trade Mark Rights

The law of registered trade marks and unregistered trade marks protect brands, business names, logos, slogans, packaging and shapes in many instances. In industry, service marks and collective are also able to be registered, creating a device to set a standard of service and recognition that becomes associated with a particular standard of quality. Again, use of contracts allow businesses to license use of trade marks to other businesses; it may be that a licensor wishes to impose particular restrictions on the size, colour, geographical location or even the place on a website that a trade mark will be used. Provided these requirements may be reduced to writing with sufficient clarity they may form part of the contractual relations and effectively restrict use of the trade mark. For example, franchises depend on trade marks to create a common branding, as do businesses authorising others to manufacture packaging.

Commercial Environment

When it comes time to make commercial decisions as to the types of uses and licences that will be granted in respect to intellectual property, companies would be well advised to ensure that that contract accurately reflects the commercial intentions of the business. Failures to do so may have dire commercial and indeed legal consequences. Problems may arise by a variety of different courses.

For example, a company may inadvertently accept terms and conditions of the other business printed on the back of a purchase order authorising the payment. In such cases, the licensor's own terms of business may be found not to apply. The consequences of this are that the business contracts on unforeseen terms of contract that may well be contrary to its own intentions, and result in foreseen consequences. In one case that the author has advised on, the author of a University course inadvertently transferred the intellectual property rights to a company rather than license its use. This placed it in a position whereby it had divested itself of the assets in which had invested significant capital expenditure, that it intended to use and re-use for years to generate income. It had assigned the ownership of the course to the other party inadvertently.

A company may wish to license a company to "use" certain intellectual property rights on restrictive terms. Difficulties may arise in the contractual meaning of the word "use" when it is not defined in the contract, and thus introduces ambiguity and uncertainty in the contractual arrangements between the parties. Where a licensor asserts narrow and restrictive rights for "use" and the licensee asserts broad liberal rights to "use" the work, unless there are other material in the contract indicating what the parties intended by "use", it is extremely difficult to ascertain what the parties actually intended to agree to. In situations such as these where intransigence sets in, litigation is required to resolve the dispute causing distraction and expenses that is otherwise perfectly avoidable.

Conclusion

Fundamentally management of intellectual property rights takes place with contracts. Licences and assignment of owners' rights may be coupled other objectives of the parties, for instance:

research grants and consequent dealings with the fruit of such research; funding arrangements and contractual commitments for exploitation; clinical trials and use of consequent results of the trials; fixing royalties for exploitation of intellectual property rights; commercialisation of intellectual property and revenue sharing arrangements granting of options over intellectual property grants for licences for evaluation of relevant materials, and onward licenses cross-licensing different intellectual property rights for mutual research or exploitation; and software licensing.

Like any other commercial contracts, dealings with intellectual property may be complicated. Frequently this is the case because the delineation of rights and use rights granted are set out in fine, granular detail. To truly appreciate the effect of such dealings, readers need to appreciate the particular types of rights that may vest in a particular form of intellectual property.

Learning About Copyright Law

While patents are intended to safeguard the unauthorized use of inventions and designs, copyrights are intended to protect words, music, images and other forms of creative content. Under copyright rules, a creator has the right to control the use, reproduction, distribution and display of their creation.

These regulations provide these nationwide rights so a person can feel a sense of ownership regarding their works and creations.

Exactly what does it protect?

In addition to words, music and images, copyright regulation protects architectural designs, computer software, films and other specified works.

The legislation isn't going to protect ideas, procedures, discoveries or devices "as distinguished from a description, explanation or illustration."

To understand whether your creation is appropriate for copyright, you can easily seek the advice of a nationwide copyright rules law firm. A nationwide copyright law attorney can tell you whether your creation may be protected.

Precisely how do I obtain it?

Technically, a copyright is given automatically from the instant something is created. But there are legal advantages to registering a copyright with the United States Copyright Office. This gives you much better protection of your creation, as it maintains a nationwide public record of your copyrighted work. Moreover, infringement lawsuits may be filed once a copyright is registered.

To apply, you can use the online system of the U.S. Copyright Office, or you can apply with the help of a nationwide copyright legislation lawyer.

Granting Rights

In order to grant somebody the exclusive use of your creation for commercial or other purposes, the law necessitates that an assignment or license be preserved in writing, and signed by the copyright owner. This document must identify the creation and specify the rights to be given.

How long do they last?

A copyright will survive throughout the entire lifetime of the creator, and will not expire until 70 years after the creator's death. If a creation has multiple creators, it will last from the date of its creation until 70 years after the death of the last remaining creator.

Where can I get help copyrighting my creation?

If you need answers or advice regarding copyright regulation, you can contact a nationwide copyright law legal professional. A nationwide copyright rules legal professional can assist you anywhere in the United States. A legal professional can help you apply, secure your rights and protect your creation from infringement.

Marking Product With Patent Numbers Post Pequignot Vs Solo Cup

Many companies choose to seek additional patent protection by labeling their product with a patent number. Under 35 U.S.C. §292 (a), a qui tam action may be brought against an entity that marks on "any unpatented article, the word 'patent' or any word or number importing that the same is patented for the purpose of deceiving the public." The resulting fine for violation of the statute is "not more than $500 for every such offense." Id. The Court of Appeals for the Federal Circuit ("C.A.F.C.") held in Forest Group, 590 F.3d 1295, that every falsely marked article constituted a separate offense. In many situations, this could create a potential for astronomical damages if a company, seeking patent protection, marks a mass-produced product with an expired patent number.

In Pequignot v. Solo Cup Company, the C.A.F.C. added additional insight into this situation. No. 2009-1547 (C.A.F.C. June 10, 2010). On May 4, 1976, Solo was issued a patent for a plastic drink cup lid. Upon being issued the patent, Solo created "mold cavities" that would form the lids in a thermoforming machine. The mold cavities had the patent number formed into them, such that when the lids where being formed the patent number would be imprinted onto each lid. Solo's patent for the lids expired on June 8, 1988, but Solo was not aware that it was marking its product with an expired patent number until June 2000. After seeking outside counsel, Solo determined that because it would be too costly to replace all of the mold cavities at once it would wait for each mold cavity to wear out and upon wearing out replace each mold cavity with a new mold cavity that no longer included the patent number.

In September 2007, Pequignot brought a qui tam action against Solo cup accusing Solo of falsely marking its plastic lids and some additional packaging. Pequignot sought an award of $500 per article of falsely marked product with a total of 21,757,893,672 claimed falsely marked products. The district court found for Solo Cup and the C.A.F.C. affirmed for much of the same reasoning as the lower court. Both courts found that Solo Cup did not act with the "purpose of deceiving the public" as was required under §292. The courts found that Solo Cup successfully rebutted the presumption of "purpose to deceive" by presenting evidence that they were following the guidance of legal counsel. Solo established for the court that their motiviation was not to deceive the public into thinking that they still had patent protection for the plastic lids, but their motivation to not immediately change their mold cavities was to reduce business costs and business disruption.

The decision in Pequignot v. Solo Cup leaves open the question of how long a company can rely on reducing business costs and business disruption before a court will find that the company is acting with the intent to deceive the public. In many circumstance, a mold cavity may last far longer than the life of a given patent. It is rarely going to be cost effective to stop production once a patent expires and retool the factory or replace all of the mold cavities within the production line. While the above decision allows for some leniency in determining when a company has acted with the "purpose of deceiving the public," manufacturers likely should have policy in place to track when a given patent has expired and begin to phase out mold cavities or other marking apparatus as soon as economically feasible after expiration.

The Merits of Moving a Business Or Domain Name Portfolio Outside of the United States

Some courts have declined to exercise in rem jurisdiction where there is no associated registrar, registry, or other authority associated with the domain names. This is particularly important to keep in mind when making a determination about how best to enforce your intellectual property rights. There are two major methods for enforcing these rights;

One, the Anti-cybersquatting Protection Act (ACPA) enables litigation to be brought by the owner of a trademark against domain name registrants where the complainant can establish that the registrant; (1) has a bad faith intent to profit from the mark, (2) registers, traffics in, or uses a domain name, (3) that is either identical or confusingly similar to a distinctive mark or is identical, confusingly similar or dilutive of a famous mark

Two, the Uniform Domain Name Dispute Resolution Policy (UDRP) has been uniformly integrated into the global market of the registration of domain names by the Internet Corporation for Assigned Names and Numbers (ICANN). Importantly, domain registrars provide little if any oversight to make sure consumer registrants are not registering domain names that would infringe upon the rights of a trademark or brand owner. However, any entity registering a domain name automatically must represent and warrant that such registration does not impinge upon the rights of any third party (brand owner). Further, the UDRP ensures that all domain registrants agree to participate in an arbitration-like proceeding should any third party assert a claim against the domain name or registrant.

Any third party asserting a claim against a domain name or registrant must prove the following in order to be successful in a UDRP proceeding;

(1) The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (2) The registrant does not have any rights or legitimate interests in the domain name; and (3) The registrant registered the domain name and is using it in "bad faith."

The UDRP enables suit to be filed against a domain name, registered anywhere globally, because of the mandatory opt-in to arbitration when registering a domain name. Somewhat more situational is the ability to file a successful suit under the ACPA. This is because not all courts handle jurisdiction over foreign registered domain names equally. For instance, some state jurisdictions do not authorize an exercise of jurisdiction over domains where there is no registrant, registrar, registry or other authority associated with the domain names in that state.

The state of Nevada is among those jurisdictions. The recent ACPA lawsuit filed in Nevada by Andre Agassi and his wife, Steffi Graf, serves poignantly to illustrate this point. Deborah Logan wrote in her article "Moving Offshore Jurisdiction in an Internet World Without Borders" summarizing the World Class Tennis Stars' attempt to derail 3rd party cybersquatters who had registered domain names with the Stars' personal names;

"No registrar, registry or other authority associated with the domain names was located in Nevada, and the court found that no in rem jurisdiction could be exercised over the domain names. It appears that plaintiffs had intended to serve the complaint on the domain name registrars in the hope that the registrars would sign Registrar Certificates to be deposited with the district court in Nevada thereby establishing jurisdiction over the domain names. However, this strategy failed."

However, it is important to note that this Nevada decision is not representative of a national stance on jurisdiction over foreign defendants. In contraposition to Nevada, there have been several court cases in recent years have held that US courts can still claim jurisdiction over a domain name regardless of the location of the registrant or domain name registrar.

It is also important to take note that any domain name or owner of a Website that has direct contact with individuals in the US (ex: stream of commerce- sale and export of items from a foreign source into the US), will likely be susceptible to personal jurisdiction in any US state.

To muddy up the waters further, sometimes the act of moving a domain name portfolio to a non-US registrar is viewed by the courts as evidence of bad faith, which when taken into account in giving the ruling can have a very damaging effect on a domain name or Website owner's prospects of winning a UDRP or ACPA dispute.

To summarize, a UDRP proceeding likely always available against an infringing domain name. Suit filed under the ACPA is more likely to succeed in establishing some sort of jurisdiction over the defendant if the registrant, registrar, registry, or other authority associated with the domain is located within the same judicial district as the suit was filed in. Selling items to US consumers likely submits that Website or its owner to personal jurisdiction in the US. And, be wary of moving a domain portfolio overseas so as not to give evidence of bad faith.

Why Protecting Your Business Is Vital

You are an offline and online business owner; your website and blog generates business for your physical location on Main Street. According to Tom Donahue, president and CEO of the U.S. Chamber of Commerce, as one of 26 million Americans you are the core of this nation's workforce. Businesses such as yours employ just under 100 percent of all of the employers in the U.S.

For several years now you have struggled through the current economic depression; your doors are still open. You are passionate about your business; who you are; what you do; what you bring to your customers: Plumber, architect, painter, landscaper, owner of a boutique. Internet business consultant, social media strategist, multi-level network marketer, direct sale distributor, you are the expert in your field.

As you prepare for 2011 your thoughts focus on all of the various protections you have set up for yourself, your family and your home. As a working-class citizen, just what type of insurance coverage do you have. You review your current list:

Life, health, home-owners, and auto insurance; these are the main types of coverage most people have. If you rent an apartment, you may have renter's insurance. As you sit in your living room and look around, you may also have warranties on your large kitchen and household appliances; your furniture; TV, camcorder, computer, game system, cell phone, and a few other electronic devices you may own.

As a private business owner, you are concerned about your expenses, services or merchandise, income, and taxes. In these difficult economic times, where do you gain the necessary capital to continue to operate and be successful? Then there is the risk management of your goods and/or services; you want to guard against the risk of a contingent and uncertain loss.

You do it all, but there's always more to do, always. It can be overwhelming, and it can distract you from the business of running your business. As a self-employed business owner, who handles the legal aspect of your business? If it's you, do you know how? Do you know what's available to you? Do you know what questions to ask?

As a customer, who do you call when your new washing machine quits and the manufacturer refuses to cooperate? What do you do when your jeweler sells you defective merchandise and the owner refuses a refund. What do you do if you slip on a wet floor in the store, are injured but the owner refuses liability?

Some of us may call on a relative or a friend who happens to be an attorney. That may work well, for that particular attorney's expertise. In doing business and providing goods and services, for any breach of contract or violations you may encounter, coverage is necessary because it provides legal protection against lawsuits, and gives you access to legal services for your own questions at minimum cost.

If you give a speech or a webinar online and accept customers for your business, other than a "money-back guarantee" for services rendered, what other protections do you have in the event you encounter a dissatisfied customer? These are questions your attorney relative/friend may not be able to answer.

The majority of your business transactions involve contracts. If you are an owner of a small restaurant you have to negotiate through many contracts; from renting the space; liability insurance, merchandise, phone service, city ordinances, state licenses and laws, physical business security; this lists goes on. If you were an online business owner you are also negotiating contracts. Domain name registration and legal issues with domain names; web hosting agreements; affiliate contracts; privacy agreements; service protection; copyrights and copyright infringements; trademarks and trade names; consumer rights protection; this list will go on and on. As business owners we constantly need quick access to legal advice and a law firm that can provide quick legal advice.

You may already have retained a tax attorney, a CPA, business investors or partners, and advertisers; all of which can be destroyed with a lawsuit. What if your insurance company is doing you an injustice, where would you go? What if your business partners are stealing from you, who would you contact?

When obtaining insurance for yourself, your family, your home and your possessions, preventive legal protection for your business can provide you consultations on an unlimited number of business questions, topics, and situations. A law firm can provide you with attorneys that are specialists in your particular industry.

As a private business owner a law firm can help your business gain a competitive edge for that larger contract that you feel you are qualified for, but may not know how to obtain.

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Safeguarding Your Documents

The basic concept of estate planning is to be prepared - prepared for disability, for retirement... even for leaving your loved ones behind.

So, it only makes sense that part of creating an estate plan is gathering up your important documents and storing them in a safe place. Of course, your Will and your life insurance policy aren't the only documents that need protecting, just as disability and death aren't the only events you need to guard against.

The truth is disaster can strike at any time. Maybe it's a full-blown catastrophe such as a fire or flood or perhaps it's a more focused loss such as your computer's hard drive crashing.

The point is, the more prepared you are, the less you have to worry about finding the documents that you need.

So, what should you be protecting?

Well, for starters, your birth certificate, your Social Security card, your marriage license and divorce decrees.

Any documents regarding your children, such as birth records, adoption records, custody papers, medical records, shot records and the like.

Also remember to safeguard copies of all your estate planning documents (of course) along with life insurance policies, mortgage deeds, pension and retirement plan documents, tax returns, stock certificates, bonds and bank account numbers.

But wait... we're not done yet!

You should also collect and protect other not-so-obvious things like your address book, your pet's vaccination records, copies of any business contracts you've entered into and receipts and warranties that you need to keep.

Think about what you would miss if there were a fire and you had to act quickly. You wouldn't have time to grab much and certainly, you'd miss your furniture, but couches and televisions can be replaced.

What can't you replace? Your family photos? Your computer files? Login information, PINs and access codes for your accounts? What about the love letters that your spouse wrote to you years and years ago?

The beauty of technology is that you can preserve all these things. Scan them into your computer and then burn copies on CDs. You can send those copies to other family members for safe-keeping or store them in your safe deposit box at a bank. Off-site storage services allow you to create a complete and on-going backup of your entire hard drive for a small monthly service fee and an external hard drive allows you to grab your drive and go when there's not much time.

Your estate planning attorney should have copies of all your pertinent documents of course, but it never hurts to keep separate copies for yourself and your loved ones. Keeping these copies safely tucked away ensures that you'll always have what you need, no matter what the future might hold.

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Intellectual Property and the Economics of Entertainment

There's been buzz over the past few weeks concerning how Condé Nast, the New York Times, and other publishing companies are busily preparing digital versions of their various publications. The gist is that they want to be ready for the only-rumored, yet heavily hyped, Apple Tablet. Apparently, the Kids From Cupertino have achieved such a level of credibility that corporations will pour money into preparing for a tablet-style computer that Apple might be thinking about launching maybe next year.

Here we have one more piece of evidence to indicate that the written word has begun its unavoidable migration from paper to the digital media. Good news for tree huggers; bad news for Hammermill, Champion, and anyone who owns a printing press. Not that the tactile enjoyment of a glossy magazine or well-produced book is likely to be replaced by a sterile LCD screen any time soon. And we won't be closing libraries and replacing them with giant servers in the foreseeable future. Of more immediate concern, however, is the effect the presumed Apple Tablet and the all-too-real Amazon Kindle may have on the source of all that content - the writers.

Over the past 20 years, digitization has changed the music industry. Album sales have declined over the past decade to the point where combined CD and download sales now represent only a fraction of what CD sales alone accounted for in 2000. Thousands of recording industry jobs have disappeared; so have thousands of retail record stores across the country. Today, the primary revenue source for the artists is live performances. Being a rock star ain't what it used to be.

Other forms of digitized entertainment, such as cinema and video games, are managing to hold their own against pirate attacks for the time being. But as books become easily shared digital files, how will the authors and their publishers be able to control unlicensed dissemination of the work? Will a Stephen King, a John Grisham, or a Dan Brown continue to produce entertaining works of fiction when the sales dollars begin to decline? Unlike music, there isn't a very lucrative market for live performances by an author.

There is no money in poetry, of course, and poets continue to write, don't they? The difference is that poets write for the purpose of self-expression, not to entertain others. A major difference between art and entertainment is that the latter requires a revenue stream to justify its existence. This isn't to say that works produced to entertain cannot also be art, but let's not forget that Shakespeare wrote plays to earn a living.

You cannot own what we call "intellectual property" any more than you can own an idea. What you can hold onto is the right to control the reproduction and dissemination of its physical manifestations - hence the term "copyright". Should writers and publishers be in a hurry to embrace a method of distribution so inherently vulnerable to illicit reproduction and sharing? If you had a novel going to press tomorrow, would you be willing to allow it to be published digitally as well? Do you see any way to protect book authors in the future... before they all turn to writing for the stage or screen? I'd be interested to know if you do.

By,

Robert Mattson

Executive Vice President- Creative Director & copywriter

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