Law

UDRP and the ACPA Differences, Advantages and Their Inconveniences

The ACPA and the UDRP provide two separate and distinct methods for resolving domain name disputes. Both alternatives have many critics and proponents, but the true value of each will ultimately be determined by how well each combats cyber-squatting. Separately, the UDRP and the ACPA will probably work well to defuse most of the cyber-squatting that is currently invading the Internet. If combined together the UDRP and the ACPA can be a cost saving and effective way to prevent cybersquatting... more

Is 47 USC 230(c) an Immunity or an Affirmative Defense (Does it Matter?)

Procedure matters. It matters whether a defendant can dispose of a litigation right out of the gate, or whether the defendant must suffer the slings and arrows of discovery, motions, and trial before presenting a successful defense. Procedurally, once a litigation has been initiated, defendant has a chance to say, "hey, wait a minute, there isn't actually a cause of action here." It's like someone suing me for being tall. Well, yeah, but there is no recognized cause of action against being tall. more

Thinking Carefully About New gTLD Objections: String Confusion (Part 1 of 4)

Since speaking last fall on community-based TLDs at the New gTLD Summit in Los Angeles, I have been asked a number of times to provide input on the objections ICANN allows in its New gTLD Applicant Guidebook ("AGB" or simply the "Guidebook"). As the March 13 deadline approaches, I now present the first of a series of four spotlight articles on the subject -- one on each of the four permissible grounds for objection. more

Europe and Data Protection: We Need a Real Debate - Exactly What We Don’t Have Now

Europe is at the forefront of the global debate about data protection and privacy. Unfortunately that debate is characterised more by hyberbole and scaremongering than real discussion. Europeans deserve better -- and so does the world, who rightly see Europe as a leader on this subject. The new Commission has a chance to truly lead in partnership with governments, like Brazil, that agree with us. more

When Two Trademarks Aren’t Confusingly Similar to One Trademark

As I've written before, domain name disputes involving multiple trademarks sometimes raise interesting issues, including whether a panel can order a domain name transferred to one entity without consent of the other. While panels typically have found ways to resolve this issue, one particularly troubling fact pattern arises when a panel denies a complaint simply because a disputed domain name contains trademarks owned by two different entities. more

EU Ruling on Google Ad Keywords: Implications for Brand Owners

In a landmark judgment issued this past Tuesday, the European Court of Justice (ECJ) ruled that Google is not liable for trademark infringement when an advertiser purchases a keyword based on a competitor's trademark to trigger a search ad, so long as it removes infringing ads promptly when notified by brand owners. However, and this is critical, individual advertisers could be held liable if ads triggered by a keyword involving a competitor's trademark are found to confuse consumers. So, what qualifies as consumer confusion? more

Proposed Generative AI Disclosure Act Seeks Transparency and Fairness in AI Training Datasets

In response to ongoing controversies over the use of copyrighted content in training artificial intelligence, U.S. Representative Adam Schiff has introduced the Generative AI Disclosure Act more

Article 22 of the GDPR Should Not Preclude Contemplated Automation

There is an ongoing disagreement among various members and groups in the ICANN community regarding automation -- namely, whether and to what extent automation can be used to disclose registrant data in response to legitimate data disclosure requests. A major contributing factor to the complications around automation has been confusion about how to interpret and apply Article 22 of the GDPR. more

Mass Surveillance: A Turning Point in Internet History

So far, the debate on mass surveillance has dwelt on the immense resources made available to the agencies (NSA in the US, GCHQ in the UK), on the technological advantage that enables them to access any data and bypass encryption, and on the lack of proper oversight in those two countries. But in order to make their voices heard by their elected representatives, Internet users around the world need to have an even more complete view of the emerging reality. more

U.S. Congress Nears Breakthrough Agreement on National Online Data Protection Framework

In a landmark move that may pave the way for enhanced online data protection in the United States, key congressional committee leaders are on the brink of finalizing a national framework to safeguard Americans' personal data on the Internet.  more

Breaking Ground: Historic Launch of UN Global Mechanism for Cyberspace Governance

The international community has long struggled with the challenge of translating international law into actionable norms and practices in cyberspace. The conclusion of the United Nations Open-Ended Working Group (OEWG) on the security of and in the use of information and communications technologies 2021-2025 marks a vital milestone in that ongoing process.  more

Microsoft Sees Serious Appetite for Revised Privacy Laws in US, Says It’s Time to Match EU’s GDPR

With the first anniversary of the European Union's General Data Protection Regulation (GDPR) approaching in just a few days, Microsoft's Corporate Vice President and Deputy General Counsel, Julie Brill says GDPR has been an important catalyst for progress in privacy protection around the world. more

Minding the GAC and the Heckler’s Veto

ICANN meetings sometimes congeal around a single theme. In San Francisco the theme was captured on clever t-shirts bearing the iconic symbol of the London Underground with the words, "Mind the GAC." Here was a succinct and timely plea for the ICANN Board to pay serious attention to the Governmental Advisory Committee (GAC)'s concerns about new generic Top-Level Domains (gTLDs), rather than to risk undermining the long-term viability of the multi-stakeholder model. more

Canada Says Facebook Has Refused to Address Serious Privacy Deficiencies Concerning Its Local Laws

The Canadian government released a statement saying "Facebook committed serious contraventions of Canadian privacy laws and failed to take responsibility for protecting the personal information of Canadians." more

Lawful Registrations of Domain Names

Doug Isenberg notes in a recent CircleID essay that two records in domain name disputes were broken in 2017, namely number of cybersquatting claims (3,036 in 2016, 3,073 in 2017) and number of domain names implicated (5354 in 2016, 6370 in 2017). Fairly consistently from year to year, approximately twenty percent of filings are terminated (withdrawn): whether by settlement or nolo contendere we don't know. (All of these statistics come from the World Intellectual Property Organization (WIPO). more