ExpertPreneurLaw℠ Blog

Food for thought on Copyright on the Internet

All ExpertPreneurs  must struggle with the effort, time and money needed to properly police their intellectual property rights on the Web.

But a recent piece by Andrew Glass of Politico.com should give pause to consider a real World perspective on the problem.

While the article is not written with ExpertPreneurs specifically in mind, the lesson in the article is quite instructive for them.

Even as the boundaries of copyright protection, and the claims for them, increase, seemingly exponentially, every day, there is a simple concept that must be applied to intellectual property rights as much as to everything else in life.

Since most ExpertPreneurs have limited time and money, they must determine the commercial value of their individual pieces of intellectual property to determine how much of that time and money they wish to devote to the protection of any particular piece.

This is where having a sound intellectual property protection strategy comes into play. Such a strategy is an indispensable tool for every ExpertPreneur.

An intellectual property strategy begins with a plan for the type of intellectual property you intend on creating and in what formats it will be distributed, e.g. a book, audio, DVD, etc.

Then, the commercial value of the piece, now or in the future, must be assessed, so that the greatest amount of available resources can be devoted to those works that are considered to be the most valuable.

It is important to keep in mind, however, that intellectual property protection is not an all or nothing game. Choosing to prioritize the the amount of resources used to protect certain works is not carte blanche to ignore the rest.

Instead, it should be used as a method to refine your intellectual property protection strategy to give some protection to some of your works, while giving more to the most important.

Fortunately, today's intellectual property legal systems afford a great deal of flexibility in how to approach these matters and all ExpertPreneurs would be wise to take this into account in formulating their intellectual property strategy.

Without this type of strategy, no ExpertPreneur can hope to have a systematic method of protecting their valuable works and risks having insufficient legal protections in place to go after infringement when it matters most.   

 

More on Domain Name Tasting

ICANN, the Internet Corporation for Assigned Names and Numbers, recently again called for feedback on the practice known as domain name tasting, previously reported in this Blog.

The practice refers to registrants taking advantage of current registration regulations that allow a five day grace period in which to cancel and avoid paying for registrations, by scooping up domain names, evaluating their ad generating revenue, and throwing underperforming ones back before having to pay for them.

While use of generic domain names increases security threats to the system and slows it down for everyone, ExpertPreneurs should take note of the potential for trademark infringement by those who register lapsed or purloined or typosquatting names, only to run off before their actions may be noticed or acted upon.

For smaller ExpertPreneurs who don't have the resources to monitor or pursue domain tasters that may be infringing on their marks and diverting traffic from their most popular pages, helping raise the pressure on ICANN to curtail the practice can only help.

Powered by ScribeFire.

Learn More about Intellectual Property for your Business

For the budding or growing ExpertPreneur that wants to learn more about the basics of intellectual property and how to use it to build your business brand and creative assets, as well as stay out of hot water, yours truly will be interviewed by blogging experts, Denise Wakeman and Patsi Krakoff, Psy. D. on their well known Blogging and Beyond Radio Program tomorrow, September 6th at 6 PM EST.

Details and links to access the program at http://www.blogtalkradio.com/blogsquad .

Domain Parking Taken to a Whole New Level

Some ExpertPreneurs with a substantial number of domains under their belt have, no doubt, had experience with domain parking problems.

For those unaccustomed to the practice, domain name parking basically takes common names  or generic terms, and points them to web pages that have little more than a mountain of pay per click Google ads, or the like, which the owners of the site profit from when they are clicked through.

Traditionally, these domain parking websites have had little in the way of actual substantive text or information, usually just enough, if at all, to be crawled by the search engines.

A recent New York Times article by Louise Story sheds light on the new heights to which this practice has been taken.  You might almost call it "Valet" domain parking.   

This raises an issue for ExpertPreneurs who wish to publicize their products and services by the use of easily recognized generic domain names.

First, the name chosen may be close to one used for domain parking by someone else, meaning that a person browsing may draw the wrong association between your site and that of the domain parker.

Second, if the name you pick is too generic, you may find much of your traffic siphoned off your piece of  the information highway and detoured where you don't want it to go.

When can Domain Names be Trademarked?

In yesterday's post, I discussed how important it is for every ExpertPreneur to do some form of trademark search before selecting a domain name for his or her new product or service web page.

While doing a search can help avoid possible liability or even the loss of the domain name to a pre-existing trademark holder, there is a very real question about when, if ever, one can trademark one's own domain name?

Contrary to the belief held by many, a web site's domain name is not automatically eligible to be registered as a trademark.

Among various other requirements, a domain name is only eligible to be registered as a trademark if it is being used in what is considered to be a "trademark sense". 

In simple English, this means that the domain name has to be more than a substitute for an Internet address.  It actually has to be used as a brand resource identifier to distinguish your brand of product or service from that of your competitors and to indicate its source.

So, if your domain name appears nowhere else on the webpage except in the address bar, there's very little chance that the domain name could be trademarked without showing that it is being used in a trademark sense in some other form.

The lesson here is that, when crafting potential domain names, the savvy ExpertPreneur  will pick domain names that will be part of his or her trademark branding strategy and will make sure to use the domain name, both on the web page and elsewhere, as a trademark and not merely as an address.

Domain Names vs. Trademarks

It's not unusual for a starting ExpertPreneur ( or even one that's not starting) to rush out and buy up every domain name for his or her great new idea or product.

So they might go out and immediately register "great idea.com", "great idea.net", "great idea.info", etc.

You'd be surprised how many do so, spending quite a lot of money in the process, without first checking to see whether the domain name possibly infringes upon an existing trademark.

Big mistake.

First of all, before trying to build a search engine friendly website that will point to one's desired domain name, every ExpertPreneur should do some level of trademark search to determine whether the domain name may conflict with another company's trademark since, to the extent it does, the ExpertPreneur is vulnerable to losing the domain name  to the true trademark holder via arbitration or, worse yet, federal lawsuit.

Even if the ExpertPreneur wanted to resist, potentially significant legal fees would be unavoidable.

Secondly, doing a trademark search will help determine whether or not the proposed domain name might, itself, be suitable for trademark protection (think "Amazon.com").

This brings us to the question of whether or not a domain name can be trademarked and, if so, when?

See tomorrow's post for the answer to that question.

Intellectual Property Challenges Outside the US

Last week, I really did have occasion to marry business with pleasure, attending an all day seminar on protecting intellectual property in the Global Marketplace, sponsored by the federal government and the U.S. Chamber of Commerce.

Held on the campus of the University of Vermont, in beautiful Burlington, the seminar drew a large crowd of concerned professionals, business owners and government officials, capped by a keynote address by Senator Patrick Leahy.

Amongst the presentations was a chilling seminar given by Brad Huther, a senior advisor to the U.S. Chamber of Commerce, concentrating in the Chamber's global anti-piracy initiative.

Huther demonstrated that a loss of 750,000 U.S. jobs was directly attributable to IP piracy and invited attendees to learn more at a special web site set up by the Chamber at www.thetruecosts.org.

There were several other topics discussed at the presentation, everything from the unique threat posed by foreign knock-offs of well known brands to copyright infringement, to criminal penalties under federal intellectual property theft statutes.

Still, one basic lessons stands out for ExpertPreneurs and that is the one emphasized by Ari Leifman of the U.S. Patent and Trademark Office.

In an age of globalization, intellectual property rights are still primarily territorial. This means that, if you intend to sell your knowledge and services in other countries, you need to investigate protecting your IP rights there as well as in the U.S.

While there are procedural treaties that help streamline the process of these applications, they do not excuse the need to make those applications or to comply with the laws of those countries as they may affect your intellectual property rights.

The time to think of these issues is when you are first considering making inroads internationally, as the standards for protection in other countries are not the same as they are in the U.S.

Intellectual Property Guidelines for New ExpertPreneurs - Part 2

Yesterday, I wrote to persuade you about the importance of considering your intellectual property when starting your business as an infopreneur or ExpertPreneur.

But on what aspects of intellectual property should you be concentrating your attention?

The first things to focus on is a trademark, your main branding protection. Trademarks, or service marks in service businesses like coaching and seminars, stake your claim to your product or service in your marketplace by identifying it with your name, slogan or logo in the mind of your potential customers.  Who hasn’t looked at the bright red logo and distinctive bottle of Coca-Cola and not been able to distinguish it from Pepsi, even without the blind taste test?

Product, service or even brand names  must be chosen carefully from the very beginning because not all are capable of qualifying as trademarks. For example,  using “Apple” as a brand name for the sale of apples can’t earn a trademark because it’s considered generic, merely using the name of the product itself.  But, Apple Bank and Apple Computer can be trademarks because “Apple” is  distinctive in those contexts.

Picking a name that can qualify as a trademark is also important because it allows your business to fend off cybersquatters that trade off your business’ good will by registering your mark as a domain name for their own goods or, even to extort you into buying from them at an exorbitant price.

(More on this subject, including copyrights, in Part 3 of this post, tomorrow)

Intellectual Property Guidelines for New ExpertPreneurs - Part 1

By now, most ExpertPreneurs starting a new business know enough to consider whether they should form some type of entity to protect them from personal exposure, such as a corporation or a limited liability company. Most have even thought of a snappy name for their product or service.

Yet, even in the age of all things Internet, surprisingly few have adequately considered what might be one of the most important long term investments that they could make in their company, namely their intellectual property protection.

Like many fledgling small business owners that come to see us, you might think that intellectual property is an issue primarily geared to Internet firms or software companies or even big drug manufacturers, but the truth is that almost no business starting in today’s World, least of all that of an infopreneur or an ExpertPreneur, can afford not to think about and invest in establishing its intellectual property beach  head if it intends to stay in business or to grow it into a thriving enterprise.

The simple reason for this is that you, as an ExpertPreneurs need to have more than a good product or service. You need to be known for and identified as the go-to source of your product or service -- the Expert --, and to be able to demonstrate your goods and capabilities to inquiring audiences on the Internet, and to prevent  your ideas and innovations from being stolen.

Once you realize this, bringing in legal counsel that’s knowledgeable about intellectual property at the beginning of a company’s formation becomes an obvious and inevitable decision for you as a savvy entrepreneur looking for an edge.

( Part 2 tomorrow)

Blogger by the Dozen

On my firm's website, one of the most frequently accessed articles is one that I wrote entitled "The Legal Risks of Blogs".

Over at the web and blog directory site, Akiva directory, there is a concise presentation of legal concepts applicable to blogging. Check it out at Blog Law » 12 Important U.S. Laws Every Blogger Needs to Know .