August 2nd, 2009 at 06:42am
Under trademark law
There have been several articles recently discussing the strong possibility that the term “Google” will make it into the 11th edition of the Merriam-Webster Collegiate Dictionary as a verb. In June 2006, the term “Google” appeared for the first time in a dictionary; the Oxford English Dictionary included the word in its web site dictionary. It is a common experience to walk down the street or walk into a room and hear someone state, “why don’t you Google this or that”? In many cases the person is not even referring to the search engine Google, but rather any search engine or web directory, such as MSN, Yahoo, or Ask. The use of the term seems to dilute the trademark that Google has federally registered and has been granted protection under the trademark laws. The Google trademark can be found on the United States Patent and Trademark Office’s web site at: http://tess2.uspto.gov/bin/showfield?f=doc&state=27f2e7.2.9. The use of the term infers that Google is the only search engine that matter any longer. This is certainly not true where MSN and Yahoo hold a combined 36% share in the market place.
The proposed definition of the term in Webster’s dictionary is: “to use the Google search engine to obtain information on the Internet”. Has the term “Google” become so commonly used in our everyday vernacular that it should appear in the dictionary. There is a potential legal issue at stake if such a word, which is protected as a word mark under trademark law, is allowed into the dictionary. There is a strong likelihood that the use of the term may cause a probable detrimental effect on the Google Inc’s trademark protection. If the term is accepted as a verb it could result in businesses using the word “Google” to market their own products, thus potentially diminishing the Google brand name.
Based on the trademark, Google is defined as a word mark for the as applied to the following goods and services: Telecommunication services; data transmission and reception services via telecommunication means; electronic exchange of voice, data, and graphics accessible via computer and telecommunication networks; providing multiple-user access to a global computer information network; internet cafe services, namely, providing telecommunications connections to the internet in a cafe environment; bulletin board and discussion group services; electronic mail services; workgroup communications services over computer networks; instant messaging services; voice over ip services; computer communication services; wireless communication services; mobile phone communication services. The first use of the term in commerce was on February 12th, 2001.
The legal significance of a trademark:
The reason that trademark protection is so important is to prevent others from using creative and distinct words, logos or slogans in the use of selling a product or service, which the creator has worked hard to attach an immediate connection in a consumer’s mind between the word mark and the company’s product. For all intense and purposes, this gives a monopoly to the trademark holder on the exclusive use of the word mark as it applies to the industry that is associated with the mark. In this case, there are hundreds if not thousands of search engines on the Internet, and many of these, such as Yahoo have similarly distinctive names, yet those names are not used in everyday speech. There is the chance that when someone hears the term “Google this product”, they will start to think of the suggestion as going to any search engine, and not associate the highly relevant search results that are associated with Google, but simply any search engine, regardless of popularity. Moreover, Google has national and even international recognition for its online service; any use of the term can diminish the power of that brand recognition.
This is a case their will very likely be some form of trademark dilution. Google may fall short of having a case for trademark infringement. However, Google’s may be able to bring an action for trademark dilution under either federal or state law. Under federal law, a dilution claim can be brought only if the mark is “famous.” In deciding whether a mark is famous, the courts will look to the following factors: (1) the degree of inherent or acquired distinctiveness; (2) the duration and extent of use; (3) the amount of advertising and publicity; (4) the geographic extent of the market; (5) the channels of trade; (6) the degree of recognition in trading areas; (7) any use of similar marks by third parties; (8) whether the mark is registered. 15 U.S.C. § 1125(c). Kodak, Exxon, and Xerox are all examples of famous marks. There can be no doubt that the term “Google is famous, for it were not famous than there would be no reason to add the term to the dictionary. It seems likely that Google would not want it’s brand, which it has worked so hard to build and maintain.
July 24th, 2009 at 12:42pm
Under trademark law
A decade or so ago there was no such thing as computer law. This niche of the legal system has come into being out of necessity with the proliferation of the Internet and the issues that come along with the technology that makes worldwide communication and transactions possible.
Traditional law does not cover many of the issues that occur in the online realm. Therefore it is crucial that we have a particular branch of law that exists to deal with legal problems that may arise by the very nature of the Internet and are not able to be covered by local jurisdictions.
There may be disagreements over copyright or ownership of a domain or website which cannot be resolved due to the parties being in different states or even different countries. The problem that arises here is that there are complex problems in deciding what state or country’s law and jurisdiction will have the authority to resolve the issue. In situations like this the area of law known as “Conflicts of Law” comes into play.
The increasingly complex area of computer law is exceedingly demanding in its educational requirements for attorneys who practice in this niche. The term “computer law” is kind of a misnomer since it is really the information on the computer such as software, personal info, and possible trade secrets that are the issue as well as the possibility of international disputes over domain names and copyright violations. For these reasons, those who practice computer law are usually the same attorneys who specialize in Intellectual Property Law, also known as IP Law, which covers trademarks, patents, copyrights, and trade secrets. The U.S. Patent Office requires attorneys practicing before it to hold a bachelor’s degree in the areas of engineering or science at the very least.
Some traditional areas of law are evolving to include ever-changing computer laws. Early on it was declared that software would be classified as “goods”, but the difference between normal goods and software “goods” is that one only owns the media that the software is stored on and a license to the use of the software which is now covered under the Uniform Commercial Code.
Those who hack into computer systems without authorization and use that computer’s resources or steal information from it are guilty of pretty much the same thing as what traditional law would call burglary. However, since by definition burglary means entering an actual physical residence, specific laws were added to cover this offense.
One of the biggest problems with the Internet and one that grows even larger annually is that of copyright theft and piracy. Anyone with a computer and access to the Internet can easily steal the intellectual property of another. Additionally, the piracy of media such as movies and music is an enormous problem that is plaguing those industries today. It is a fact that the area of computer law will continue to expand and be used more in the future as the use of the Internet to commit crimes continues to grow.
July 17th, 2009 at 06:42pm
Under trademark law
So you have a hot idea for a website, or maybe you want to capitalize on a hot new product that has just been released. There are some things that you will want to know first before you get yourself in a lot of hot water.
Choosing a domain name isn’t really rocket science but it is very important. You want to choose something that is as short as possible, easy to pronounce and remember for marketing purposes, and if at all possible you want to get your main keywords in the domain name. All that aside, you also have to be careful that you don’t step on the toes of a person or company who may be inclined to sue you.
For example, judges have ruled against domain name squatters in every case where they registered a celebrity’s name. They will also rule against companies that infringe upon other companies. A good case in point would be the case a couple of years ago between the World Wrestling Federation and the World Wildlife Foundation. The World Wrestling Federation called itself the “WWF”, put up a website at wwf.com, and the World Wildlife Foundation filed a trademark infringement suit against them. The Wildlife Foundation won because they had been in existence for many years before the wrestling firm and therefore the World Wrestling Federation had to change its name to World Wrestling Entertainment. Obviously this cost them a great some of money to change their name that appeared on millions of marketing products all over the world as well as the expense they had put up on their website and online marketing.
Another more recent issue that is still ongoing is the battle between Apple and the V.O.I.P. product “iphone” from Cisco. Apple announced they would be bringing a product to market called the Apple iPhone to go along with their other products that start with an “I”. Cisco promptly filed for injunctive relief and as of this writing the issue is unresolved.
There are a few basic guidelines that will help keep you out of trouble when you are choosing a domain name so you don’t run into legal trouble from violating someone’s trademark. Let’s take a look at them.
First off you need to realize that a name that is used to identify a particular service or product is a recognized trademark. Trademarks that are deemed to be suggestive and memorable are granted protection by both state and federal law.
A confliction of trademarks occurs when one trademark is in conflict with another and the deployment of both is probably going to be confusing to customers or would be customers concerning the company’s products or services. As I illustrated above, when the legal issue is with a later user of a trademark, the law rules that the first commercial user of the trademark is the legal owner and is therefore given protection. The loser will be forced to cease using the trademark and may even be compelled to pay damages to the original owner, particularly if it is determined that they were malicious in their intent.
The smart thing to do is to consult a trademark lawyer and have them check out your idea for a domain name before you invest too much in developing and marketing it.
Gregg Hall is an author living in Navarre Beach, Florida. Find more about this as well as <a href="
http://www.focusonip.com ” rel=”nofollow”>intellectual property attorneys at
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