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In Neal Stephenson’s 1992 science fiction novel, Snow Crash, humans interact as avatars in the “Metaverse,” the collective product of online shared three-dimensional space.[1] As imagined by Stephenson, this “Metaverse” has been created by all virtual worlds[2] – it is an augmented and enhanced physical reality, a physically persistent virtual space.[3] The novel is set in Los Angeles during the early 21st Century. The federal government of the United States has relinquished its authority to private entrepreneurs and organizations. Franchising, individual sovereignty, and private automobiles reign supreme. Highway companies compete for traffic in the real world while the Metaverse is populated and travelled by user-controlled avatars and system daemons.…

Continue Reading Trademarks In The Veldt: Do Virtual Lawyers Dream Of Electric Trademarks?

On April 3, 2009, the Second Circuit Court of Appeals handed down its decision in the matter of Rescuecom Corp. v. Google, Inc., reversing the United States District Court for the Northern District of New York’s dismissal of Rescuecom’s complaint on the grounds that it failed to state a valid claim for relief. The Court held that Google’s "sale" of Rescuecom’s trademark as a keyword in Google’s Adwords and Keyword Suggestion Tool Programs, which sends online search engine users targeted advertisements based on their formulation of search terms, constitutes the "use in commerce” for purposes of the Lanham Act, which governs federal trademark law. Under the Lanham Act, subject matter jurisdiction arises for enforcement of trademark rights against infringement when one party “uses” the trademark of another “in commerce” in a way that “is likely to cause confusion, or to cause mistake, or to deceive," "as to the affiliation, . . . or as to the origin, sponsorship, or approval of . . . goods [or] services.” 15 U.S.C. §§ 1114; 1125(a). By rendering this holding, the Court resolved a significant split between the Second Circuit and federal courts in the Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits over the “use in commerce” issue.…

Continue Reading Second Circuit Resolves Split Between the Circuits Regarding Sale of Keywords to Trigger Sponsored Links and “Use in Commerce” Under the Lanham Act

In June 2006, the International Corporation for Assigned Names and Numbers (ICANN) approved a plan that would allow for the creation of hundreds of new domain names.  The Internet as we know it currently operates using 12 generic top-level domain names (gTLDs) to direct traffic.  Some of the more common gTLDs include .com, .net, .edu, .org, and .gov.  ICANN’s proposed changes would make it possible for applicants to create entirely new gTLDs, anywhere from 3 to 63 characters long and in nearly any alphabet, such as Arabic or Chinese.  ICANN released the draft plan for an open comment period, which ran from October 24 – December 15, 2008.  The response from the public has generally been negative and it remains to be seen how, if at all, that response will impact the final version of the plan.  In whatever form the plan does proceed, however, it presents both exciting opportunities and treacherous pitfalls for trademark owners.…

Continue Reading Brave New Web: Trademark Rights in the Expanding Internet

The Communications Decency Act of 1996 (codified at 47 U.S.C. § 230) provides immunity to interactive computer services, e.g., websites, against liability arising from content created by third parties.  This immunity only applies if the interactive computer service provider is not also an information content provider, defined as someone who is "responsible, in whole or in part, for the creation or development of the offending content."   47 U.S.C. § 230(f)(3).…

Continue Reading Ninth Circuit Clarifies the Scope of Immunity for Website Operators Under the Communications Decency Act of 1996

The following is a typical solicitation letter from a domain name registrar in China or Hong Kong.  Such letters are often sent indiscriminately en masse to registrants of .com domains.  “Halliton Holdings, Inc.” is usually a fictitious company crafted by the sender to induce alarm.  Such letters often elicit a panicked response from the recipient.

Dear CEO,

We are the department of registration service in China. We have something need to confirm with you. We formally received an application on March 26th 2008, one company which self-styled "Halliton Holdings, Inc" are applying to register "smrh" as internet brand and CN domain names as below:

smrh.com.tw
smrh.hk
smrh.net.cn
smrh.org.cn
smrh.tw
smrh.asia

After our initial examination, we found that the internet brand applied for registration are as same as your company’s name and trademark. These days we are dealing with it, hope to get the affirmation from your company. If your company has not authorized the aforesaid company to register these, Please contact us as soon as possible.

In addition, we hereby affirm that our time limit for dissent application is  ten days.  If your company files no dissent within the time limit, we will unconditionally approve the application submitted by "Halliton Holdings, Inc.".

Best Regards,

[Name redacted]…

Continue Reading Solicitation by Domain Name Registrar in Asia

Electronic sports games (“E-sports games”) have been developing at an extremely high speed, forming a sports storm sweeping over the entire world.  With E-sports games gaining tremendous popularity in China, more and more foreign companies are aiming at the Chinese market.  However, upon entering China with enthusiasm, foreign enterprises are often paralyzed by Chinese regulations.…

Continue Reading Dilemma for Foreign Enterprises Running E-sports Games in China

Government attempts to commandeer encrypted passwords and to search laptops at border points raise a host of constitutional issues from self-incrimination to unlawful search and seizure. On November 29, 2007, in a case believed to be the first of its kind, a U.S. District Court in Vermont ruled that the government could not require a man to type in a password that would unlock his computer because doing so would violate his Fifth Amendment right against self-incrimination. In addition, the Central District of California has found that the government must have a reasonable suspicion to search a person’s computer at a point of entry to the United States. Both decisions are on appeal.…

Continue Reading Constitutional Rights and Digital Dilemmas

The line between digital fantasy and reality is becoming evermore blurred, as evidenced by the recent arrest of a 17 year-old Dutch teen and the questioning of five others.[1] Using a phishing scam, the teens were allegedly able to secure log in identifications for a Web site called Habbo Hotel.[2] The teens allegedly used this account information to log on to the virtual hotel rooms of other members of the Habbo Hotel Web site and transfer the virtual furniture to their own accounts. The stolen digital property was originally purchased using real currency, and amounted to over $5,000 worth of goods. The arrested teen now faces real punishment for the alleged digital thievery.…

Continue Reading The Thin Digital Line