Thursday, December 20, 2007

SPAM - Part 5

Another violation to be aware of is of any False or Misleading transmission information. It is unlawful for any person to send an e-mail that contains, or is accompanied by, header information that is materially false or materially misleading.


Header information that is technically accurate but includes an originating electronic mail address, domain name, or IP address the access to which for purposes of initiating the message was obtained by means of false or fraudulent pretenses or representations shall be considered materially misleading.


A "from" line that accurately identifies any person who initiated the message shall NOT be considered materially false or materially misleading.

Monday, December 17, 2007

SPAM - Part 4

Header information or registration information is materially falsified if it is altered or concealed in a manner that would impair your ability, your Internet access service, or or a law enforcement agency to identify, locate, or respond to a person who initiated the electronic mail message or to investigate the alleged violation.

Monday, December 10, 2007

SPAM - Part 3

Once you have determined that the e-mail you have received qualifies as 'spam', the next step is to determine if there has been a violation of the CAN-SPAM act.
Some of the violations involve fraud and related activity, such as someone who knowingly or conspires to:
1) Access your and/or another person's computer without authorization and sending the 'spam' messages from the unauthorized computer(s).
2) Send a 'spam' message with the intent to deceive or mislead recipients or any Internet access service as to the origin of such messages,
3) Falsify header information in the 'spam' message,
4) Use false identities for five (5) or more e-mail / online user accounts or two (2) or more domain names and intentionally sending the 'spam' messages from any combination of such accounts or domain names, or
5) Falsely representing themselves to be the registrant or the legitimate successor in interest to the registrant of five (5) or more IP addresses and sending ore-mail from such addresses.

Friday, December 7, 2007

SPAM - Part 2

For futher clarification on what is NOT spam . . . it is NOT a transactional or relationship message with the primary purpose of which is—
(i) to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;
(ii) to provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;
(iii) to provide—
     (I) notification concerning a change in the terms or features of;
    (II) notification of a change in the recipient's standing or status with respect to; or
    (III) at regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender;
(iv) to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or
(v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.

Thursday, December 6, 2007

SPAM - Part 1

To be considered spam, one of the criteria is that the message is transmitted by electronic mail with the primary purpose being a commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).

This does NOT include a transactional or relationship message, such as one you would receive from a company where you have purchased and/or used services.
So, if you have recently signed up for a service and/or previously signed up for a service, you may still be getting e-mail from the company and it would not be considered spam. Most likely they informed you via their online terms of service that they would send you messages as a result of your service request.

Monday, December 3, 2007


The next series of posts will deal with identifying spam messages, which may allow you to have your Internet service provider pursue the spammer under the CAN-SPAM act. There are several criteria that determine whether a message is classified as spam in your inbox and then, if classified as spam, there is additional criteria to determine whether the message violates the rules in the CAN-SPAM act.

Thursday, November 29, 2007

Can Spam

If you are tired of getting spam in your inbox, you may want to contact your internet provider, registrar, hosting company, or other internet service provider to see if they can help you block certain messages. Check to see if the messages are CAN-SPAM compliant. If not, you may want to contact the registrar of the domain name and ask them to look into the activities of their customer.

Wednesday, November 28, 2007

Holiday Spam

If you notice your inbox and junk mail folder being flooded with spam, most likely it relates to gifts and other holiday related items. Avoid the 'once in a lifetime' deals that are too good to be true. If you are in need of a gift in a hurry and/or do not trust items being shipped, you could select the 'pick up in store' option for some online websites and/or look at the 'price matching' terms for local stores and see if they are willing to match deals you found online.

Tuesday, November 27, 2007

Holiday Shopping

If you plan to use your credit card for online shopping this Holiday Season, make sure you are purchasing items from a legitimate website. Aside from verifying the whois information for the domain and any contact information posted on the domain, you should search for reviews about the website, if any. Be wary about websites that have been created recently as that may be an indication that they only intend to be around for a short period of time, around the holidays (which may reduce your options for any returns). The additional steps you take before purchasing can help you rest easy and confident that you are not handing your credit card information to an unknown third party.

Saturday, November 24, 2007

NAF Overview - Part 7

As a Respondent, upon receipt of the complaint, your response is due within 20 calendar days (including holidays and weekends). So, if you have an argument, make sure to develop it quickly and get it filed!

Wednesday, November 21, 2007

NAF Overview - Part 6

To help with the argument that the domain name is identical or confusingly similar to a trademark in which complainant has rights, aside from just the spelling of the domain name, you should look to the content on the website to determine if there are any products / services that are offered that are similar to what is offered under your trademark.

Tuesday, November 20, 2007

NAF Overview - Part 5

When trying to show the Respondent has no rights or legitimate interest in a domain name, your arguments should focus on the content of the website (if any) and help draw a conclusion that none of the following exist:
(1) Any preparations to use the domain name in connection with a bona fide offering of goods or services prior to the dispute;
(2) Any indication that the Respondent has been commonly known by the domain name even if it has acquired no trademark rights; and
(3) Any legitimate non-commercial or fair use of the domain name without intent to divert consumers or to tarnish the trademark.

Friday, November 16, 2007

NAF Overview - Part 4

When trying to show bad faith, some of the most common examples (as noted at ) are:

1) If the Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant or to a competitor of that Complainant, for an amount in excess of the Respondent's documented out-of-pocket costs for the domain name; or

2) If the Respondent has registered the domain name to prevent the Complainant from registering the domain AND there is a pattern of this behavior; or

3) If the Respondent has registered the domain name primarily to disrupt the business of Complainant, who may be a competitor; or

4) If the Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's web site or location or of a product or service on Respondent's web site or location.

Wednesday, November 14, 2007

NAF Overview - Part 3

After establishing your trademark rights, you will need to focus your arguments on the following three criteria that the arbitration panel will consider for their decision:
(1)    the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2)    the Respondent has no rights or legitimate interests in respect of the domain name; and
(3)    the domain name has been registered and is being used in bad faith.

NAF Overview - Part 2

Trademark - Registered or Unregistered - As the complaining party ('Complainant'), your arguments will be focused on your trademark and how the domain name at issue is confusingly similar. 
1) A registered trademark will grant you the assumption that you have valid rights in the mark you are claiming; however, you will still have to prove the alleged infringing party ('Respondent') has infringed your registered trademark via the domain name. 
2) If you do not have a registered trademark but have filed for a trademark and/or have used your unregistered mark in commerce, you may still be able to put together an argument that your mark is famous and/or worthy of similar rights as a registered trademark. However, this argument will have to be made first and will have to be successful before an arbitration panel will be able to review the alleged infringement by the domain name at issue.

Monday, November 12, 2007

National Arbitration Forum (NAF) Overview - Part 1

If you intend to arbitrate your domain name dispute via the National Arbitration Forum, the next series of postings will be dealing with the proper process and suggestions to help strengthen your arguments. Although that does not guarantee you will be successful, with the help of your own attorney, you will be providing strong arguments for an arbitrator to consider.
An outline of the overall NAF process can be found here:
Essentially, once a complaint is properly filed and confirmed by NAF, it will be forwarded to the registrar (to lock the domain and ensure it is secure during the proceeding) and to the registrant / admin contact for the domain name to allow for a response. Once the response period is over, the arbitrator / panel will review the arguments and then provide a decision. This is typically a smooth process that will provide a resolution for the domain name(s) at issue; however, there is no provision for any monetary damages.
So, if the sole remedy you seek is the domain name and you do not care for monetary damages, an arbitration panel such as NAF is a good option that can provide results within a timely manner.

Friday, November 9, 2007

Online Shopping

By the time you reach the checkout screen during your online shopping spree, you may want to take a moment to log in to your credit card company's website. Several companies have started providing a service that gives you a temporary online credit card number to use, which is connected to your credit card account, that only permits the card number to be used once. This will reduce the chances of online fraud as anyone that has your temporary credit card number cannot use it again for any further unauthorized purchase.

Wednesday, November 7, 2007

In case you are looking for a new domain name, you may want to think twice about using something with the word 'eBay' in there. Based on a recent court decision in the Ninth Circuit -$file/0556794.pdf?openelement - depending on the facts, you may be sought out by eBay to give up the domain, which could disrupt your business. It may be best to add a '-' in between your word that ends in 'e' and the word 'bay', just to avoid some confusion. Although that may not protect you 100%, it may make a better argument.

Tuesday, November 6, 2007

Hosting v. Design

When deciding to develop your website, remember to make a distinction between web hosting and web design. Although web hosting providers will provide you with tools and templates to develop your site, it does not provide you with a professional designer that will create your site for you. Whereas a web designer will take your ideas and develop a working site for you and/or your customers. As your site becomes more complex, a web designer may be more beneficial than just being provided with templates from a web hosting provider.

Monday, November 5, 2007

Domain Admin

When deciding what contact information to use for your domain name, you should consider using a generic title, such as Domain Administrator, in addition to your company name, address, phone, and e-mail that may be managed by your domain administrator. Using a generic title will be beneficial for at least two reasons: 1) In the event your domain administrator changes, you will not have to worry about changing the contact information and 2) You avoid any confusion on who is the owner of the domain name as your company name is the only 'name' listed; rather than your company name and the actual name of the domain administrator.

Thursday, November 1, 2007

Domain Dispute - Former Employee

A typical domain dispute arises when an employee of a company leaves with passwords and information related to the management of the company's domain name. During the exit interview / processing, discussion about the management of the company's domain name is commonly overlooked. Accordingly, the company fails to update the domain name passwords and contacts, which allows the former employee to continue to access and manage the domain name.
If the employee leaves on bad terms, they may change the password and contact information related to the domain name and try to deface the company website and/or use it for other purposes. Although the company may have a good case and high likelihood of getting the domain back, the failure to lock the former employee out will cause at least a few days of stress and hassle.
The prior blawg posts on the Domain Dispute process may be a good starting point to assist you.

Wednesday, October 31, 2007

Domain Dispute - Part 5

If you are looking for monetary damages and/or do not like the result you obtained via UDRP, your best option may be to file a lawsuit with respect to your trademark rights that have been infringed. This should be filed with the assistance of an attorney in a court that will have the best chance of enforcing your judgment against the other party.

Tuesday, October 30, 2007

Domain Dispute - Part 4

In the event a letter from your attorney does not resolve the situation, one solution is to go forward with a UDRP. The typical forums are WIPO and NAF. They are essentially arbitration forums that try to resolve disputes involving trademarks within a two or three month time frame, in most cases.

Monday, October 29, 2007

Domain Dispute - Part 3

If you have run into road blocks with working directly with the registrant and/or registrar for the domain name, it may be time to have an attorney assist you. If you believe you have trademark or other rights in the domain name, you may be able to work with an attorney to send a letter to the registrant of the domain name to inform them of your rights and requests to settle the matter amicably before having to go forward with other strategies to assert your rights.

Friday, October 26, 2007

Domain Dispute - Part 2

If you believe you cannot work out a domain dispute directly with the listed registrant: 1) If the whois information is inaccurate, complain to the registrar of the domain name via ICANN ( to request the information be updated so you can contact the registrant directly and/or have the registration cancelled if there is no update or 2) If the whois information is accurate, contact the registrar directly ( to see if they can be of any assistance.

Thursday, October 25, 2007

Domain Dispute - Part 1

If you are disputing a domain name, depending on the circumstances, it may be useful to look up the whois information and contact the listed registrant / admin contact directly to try and resolve the matter amicably, quickly, and at the least expense.

Wednesday, October 24, 2007

New E-mail Address

If you happen to move and change Internet service providers, you may have to inform the people in your address book of a new e-mail address. While this may be easy for some, it may be useful to set up a free e-mail address online that you keep forever and then forward to whatever your new e-mail address is.

Tuesday, October 23, 2007

Domain TLDs

If you are having trouble finding the best .com domain name available, there are plenty of options you may be overlooking. There are many variations while using ccTLDs (such as .tv) that may still have your 'perfect domain name' still available.

Friday, October 19, 2007

Terms of Service - Modification

One key paragraph or sentence to look for in an online terms of service is about 'modification' or 'changes' to the terms of service with or without notice to you. Although some companies may have to adjust their terms of service from time to time with or without your consent, you should still ask for notice so that you know what the modification or change is, so that you can determine if you want to continue doing business with this company.

Terms of Service - Limitation of Liability

It should come as no surprise that most terms of service will have a limited liability provision that caps the amount owed to the user in the event the service provider fails to live up to the terms of service. Take a glance at this section to be comfortable that you as the user may only be able to get up to the amount of any monetary cap if a dispute arises with the service provider. If at all possible to cap your damages as well, in the event you do not live up to the terms of service, that could at least set you both at a level playing field.

Wednesday, October 17, 2007

Terms of Service - Governing Law

While scanning through the terms of service, take a look at the 'governing law' provision. This will give you good insight into where the company is based out of, and where disputes may have to be brought, if any arise between you and a service provider that relates to the terms of service.

Tuesday, October 16, 2007

Terms of Service - Term

For any terms of service you enter into, you should be aware of the term and termination policies. For any service that you expect to use for only a short period of time, you should ensure that you have the ability to cancel without penalty at any time, or at least with notice within a reasonable time frame. If the terms indicate a long term and no termination policy, take the initiative to ask and get a response back in writing. If at all possible, have them sign off on a separate addendum with the proper term and termination that you both agree to.

Monday, October 15, 2007

Terms of Service - Spam

When you sign up for a service, check the privacy policy and the terms of service to determine what information a company will contact you about. It may be as simple as a newsletter via e-mail, however, it could also be solicitations from affiliated companies. Although you may eventually be able to opt out of that communication, it is a good idea to check ahead of time on how your contact information will be used, before it gets abused.

Friday, October 12, 2007

Domain Registration - Price Increase

If you are at a low priced registrar, get ready for a price increase starting October 15, 2007. Verisign, the Com / Net registry, is increasing the cost for registering those domain names by $.42 and $.35, respectively (see press release from Verisign - Most likely the low cost registrars will be increasing their fees as they pass on the additional cost to their customers. In any case, if you get a chance this weekend, you may want to renew your domains for a few years to avoid some additional cost.

Terms of Service - Payment

When reviewing the payment section of an online terms of service, pay close attention to any 'auto-renewal' language. In most cases, it is your responsibility to keep an up to date credit card on file (so keep track of those expiration dates) if you want a service to auto-renew. If your credit card is outdated or no longer in use, your service may be cancelled unexpectedly. For those services where you prefer not to have an auto-renewal feature, make sure to send an e-mail and see if they can turn that feature off (something in writing that is acknowledged as received is better than just statements you get from someone over the phone).

Thursday, October 11, 2007

Terms of Service - Parties

When signing up for an online service, you typically check a box that indicates you have read the 'terms of service'. Although it may be time consuming, a few minutes of reading may save you some money and/or hassle in the future. One of the first parts of the agreement will list the name of the company you are entering into agreement with. In some cases, you can do a search of the company name and you may come up with other websites they manage and/or are related to. This information should give you better knowledge about the company, and possibly, the other websites (which could be run by the company or its competitors) could offer similar services at a cheaper price!

Wednesday, October 10, 2007

Domain Consolidation

If you have managed to buy up multiple domain names and are having trouble keeping track of when to renew them, a product available at most domain registrars for Com and Net names is available that allows you to consolidate your expiration dates for a domain. To avoid the legal hassles involved in trying to get a domain back, if you forget to renew, the domain gets deleted or the domain is sold to another third party, having your domains expire on a certain day or dividing your domains up to have a certain amount expire during certain times of the year is now possible.

Tuesday, October 9, 2007

E-mail Address

If you want to avoid some unnecessary spam in your inbox, one helpful tip is to type out your e-mail address in words: myemailATexampleDOTcom. This lowers the chance of your e-mail address being found as it will not have the normal symbols associated with it and automated programs will be less likely to grab it.

Monday, October 8, 2007

Online Shopping - Company Information

As online shopping grows, there are many more marketplaces than just the national retailer websites. If you find a deal that is too good to be true, you might be right. However, if you want to check up on the website owner, you should attempt to contact the company by phone and e-mail to make sure their contact information is up to date. If nothing is posted on their website, you can also check the Whois database and look for the publicly available contact information for the domain name. If you get someone to answer on the other end, ask a couple of questions about how long they have been in business and their return policy, so that you get more comfortable to do business with them online. If you cannot find any valid contact information, be cautious.

Friday, October 5, 2007

Domain Renewal

If you own a domain name, make sure to keep the contact information updated at least on a yearly basis. This will avoid the possibility of you missing a renewal notice and forgetting to renew your domain. Your forgetfulness could lead to the domain being deleted and/or purchased by a third party. As often as people move and/or change their contact information, although you may remember to update your address with the post office, take a moment to log on to your registrar's website and do the same. The couple of minutes could save you a lot of hassle in the future by avoiding having to deal with the new registrant of your domain.

Thursday, October 4, 2007

ADA Compliance

As newer widgets and add-ons are being created for everyone's website, one thing that may be overlooked is ADA compliance. When you first think of ADA compliance, you may be thinking about the wheel chair ramps that lead up to buildings or the wheel chair parking spots at local businesses. What most people forget is that the services and goods provided over the Internet should be presented in an ADA compliant manner, if your company is subject to being ADA compliant. It may not require a major over-haul of your website, however, some minor tweaks can be made. There are several websites and documents out there to assist you. One of the keys will be to allow your site to be navigated in a text based format - without reliance on anything contained in images.

Wednesday, October 3, 2007

Domain Name v. Website

Some confusion arises when setting up a domain name - most people don't distinguish that from a website. In the event you are looking to get a domain name, remember that it is basically an address on the Internet for people to find where you are. As for your website, you will need a separate 'web hosting' solution to help you build the home page and other pages you want people to see. Once your 'web hosting' is set up, you can then direct your domain name to the website so people arrive and can take a look around.

Tuesday, October 2, 2007

Private Whois

When you register your domain, your contact information will be available via a Whois database. If you are interested in privacy, there are some alternatives:

1) The 'Do-It-Yourself' Method -
a) Set up a phone number for free w/ voicemail and possibly call forwarding
b) Set up a fax number for free
c) Set up an e-mail address for free
d) Set up a P.O Box or other mailbox which may have a monthly fee

For 'free' options, there may be limitations (i.e. maximum number of voicemails / month or faxes / month), however, they provide you with a low cost option for contact information to list in a Whois database, if you don't want to list your primary contact information.

2) The "Pay-For-It" Method -
a) There are several companies and registrars out there that provide Private Whois services. Essentially, they list their contact information in the Whois database and forward communication to you. Their fee for providing this service may be similar to or less than the cost of setting up a P.O Box or other mailbox. However, when comparing options, check to see if there are any additional fees on top of any monthly / yearly fees with respect to each item that is forwarded to you (if you get a lot of mail / voicemails, the 'forwarding fee', if any, could add up quickly).

Monday, October 1, 2007

Password Protection

As more websites come online, there are more places for you to sign up with a username and password. Be careful of using the same password for every single website because in the event of falling victim to a phishing scheme, the phisher will only need to fool you once to get into several of your accounts. Try to use a combination of numbers and letters and avoid dictionary terms. It may help to incorporate the website name into the password to ensure it is different for each website you use.

Friday, September 28, 2007

Trademarks and Domain Names

Be careful of registering a domain name before doing a quick check at the USPTO office database ( Although you may think you have come up with a 'unique' name for your company/idea, it is your responsibility to make sure that name is not registered as a trademark and/or used in the same manner that you plan to use it. Failure to do so may bring a Cease and Desist letter after you have launched your product and already poured money into your idea - causing you to have to expend more money to fix any issues and possibly revamp your website.

New Laws

New Zealand police are using a new method to propose a new law - they are asking the public for input via a 'wiki' website:

Thursday, September 27, 2007

Domain Dispute - .UK Domains

An interesting proposal from the .UK domain name registry, Nominet, with respect to making domain dispute processes easier for the complaining party by essentially giving them a default judgment if there is no response from the respondent / domain owner:
This would be interesting to apply to all domain names, not just .UK domain names, to assist trademark and business owners in a timely manner, if the other party is not looking to contest the claims.

Wednesday, September 26, 2007

Privacy Policy

If you ever go to a website that requests your e-mail address, take a moment to check out their privacy policy, if one is posted. This should give you a good idea of how and when your e-mail / contact information will be used and ways to remove yourself in the future.

Tuesday, September 25, 2007

Domain Disputes

There are several ways to dispute a domain and come to a resolution. Cost and time are usually the factors to determine which method to try.
Typically, sending a letter to a registrant (which is public information that can be found using a Whois database) of a domain to request a resolution is the cheapest and quickest method to resolve a dispute, if the registrant agrees with you.
If the registrant does not agree with you, a UDRP (domain dispute arbitration) will typically be the next cheapest option, if you are a trademark owner, there is bad faith by th part of the registrant, and your mark is strong enough to succeed against any 'generic' claim while being confusingly similar to the domain name at issue.
The alternative to UDRP is to go to court. This can end up being much more expensive and take up a lot more time, however, this venue will allow you to sue for monetary damages, while the options above merely give you a chance to get the domain back.

Monday, September 24, 2007

Cut and Paste Copyright

It may be tempting to cut and paste material you find on someone else's web page and just place it on yours, but beware. Unless you fall in to one of the 'fair use' categories, you may be cutting and pasting text, pictures, or other material that is subject to another person's copyright. That right may allow them to pursue your for any unauthorized copying and/or damages.

Friday, September 21, 2007

Spam Address

When signing up for a new service, it may be wise to set up a free e-mail account with one of the major providers to allow any junk mail to be directed to that account. Although spam filters may be doing a good job, it's still a good idea to have a separate e-mail account to give out, especially when you don't want the other person to know your primary e-mail address and/or spread it around without your consent.

Thursday, September 20, 2007

Terms of Use

If you have eve agreed to the terms of service on a website without reading them, you may wnt to think twice. It is very important to read the terms of every website and service that you use, just to make sure you protect yourself in the event something goes wrong in your relationship.

Wednesday, September 19, 2007

Whois or not Whois - That is the Quesion

With several options for Private Whois providers in the Internet arena, is there a need for a formal agreement on what information needs to be listed on the public Whois database? As ICANN Working groups go back and forth to come up with a new way to allow privacy, but with the ability to obtain the appropriate information about a registrant for disputes, the question may have already been solved with the assistance of Private Whois providers that provide the privacy a registrant needs but with the ability for the provider to divulge a registrant name to law enforcement, in most cases.

Tuesday, September 18, 2007


Is domain phishing becoming less of a problem OR does there need to be more education for new users? Having seen the sophistication of new e-mails and new websites popping up by phishers, it is apparent that the scheme must still be working and innocent people are losing their online identity.

Domain Tasting

What is the impact of domain tasting? Is it helping end users get to the right destination OR is it re-directing end users to a competitor's location?