Your Source for Domain Dispute News and Information

April 2009, Vol. 10 No. 04

Welcome to Domain News, a complimentary news service of the National Arbitration Forum. The National Arbitration Forum is one of the world's largest neutral administrators of arbitration services and one of four ICANN-approved providers. We invite you to visit our website at www.adrforum.com.

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IN THIS ISSUE

First Mariner Bank v. Yoner 

Smartphones: Are They Making Jurors Smarter? 

Economic Stimulus Plan Spurs Spam 

Web Inventor Warns about Internet Snooping


RECENT DECISIONS

First Mariner Bank v. Yoner

Complainant, First Mariner Bank, brought a UDRP claim against Respondent for the <1stmarinerbank.info> domain name. Complainant alleged that Respondent had no rights or legitimate interests in the disputed domain name and that Respondent had registered and used the disputed domain name in bad faith. Respondent asserted otherwise because the disputed domain name was comprised of generic terms. The Panel found that when making a generic terms argument, the respondent must be using the generic terms in a manner that describes its business and does not conflict with the complainant’s mark. The Panel found Respondent was not using the generic terms of the disputed domain name in such a manner. Therefore, the Panel transferred the disputed domain name to Complainant. First Mariner Bank v. Yoner, FA 1243651 (Nat. Arb. Forum Mar. 6, 2009).

The Neiman Marcus Group, Inc. & NM Nevada Trust v. Silverio

Complainants, The Neiman Marcus Group Inc. & NM Nevada Trust, brought a UDRP claim against Respondent for the <lastcallsale.net> and <lastcallsale.com> domain names. Complainants asserted that Respondent was operating a website in competition with Complainants’ retail business under its LAST CALL mark. The Panel found that Complainants had rights in their mark, and the disputed domain names were confusingly similar to their mark under Policy ¶ 4(a)(i). Respondent countered that the terms of the disputed domain name were generic, that it was unaware of Complainants’ business, and that it was using the disputed domain names to sell goods and services online. The Panel found Respondent was using the disputed domain names in violation of Policy ¶ 4(a)(ii)&(iii). Thus, the Panel transferred the disputed domain name to Complainants. The Neiman Marcus Group Inc. v. Silverio, FA 1246433 (Nat. Arb. Forum Mar. 24, 2009).

Kohler Co. v. Mcivor

Complainant, Kohler Co., brought a UDRP claim against Respondent for the <kohlersucks.com> domain name. The Panel found that Respondent had not registered or used the disputed domain name in bad faith. The Panel decided that Respondent was not using the disputed domain name commercially. Instead, it decided that Respondent was using the disputed domain name within its free speech rights and as an expression of its displeasure with Complainant. The Panel further found that the “sucks” suffix creates an initial impression of a complaint website that is unaffiliated with Complainant, which was reinforced by a link to the better business bureau website. Therefore, the Panel declined to transfer the disputed domain name. Kohler Co. v. Mcivor, LLC, FA 1245293 (Nat. Arb. Forum Mar. 16, 2009).

Indianapolis Downs, LLC v. Mazzone

Complainant, Indianapolis Downs, LLC, brought a UDRP claim against Respondent for the <indianadowns.mobi>, <indianadownscasino.mobi>, <indianalivecasino.mobi>, <indianadownscasino.com>, <indianadownsgaming.com>, and <indianadownsracingandcasino.com> domain names. Complainant alleged Respondent was in violation of Policy ¶ ¶ 4(a)(i),(ii), & (iii). Respondent argued that it had rights in the disputed domain names “because they were offered as ‘available’ in the registrar” and that it had not acted in bad faith because they were parked at the registrars’ sites to monitor traffic in preparation for possible future use. The Panel found it significant that Respondent had requested a price of $1.7 million dollars and said offering to sell for so much based on “market price” was only acceptable if the domain names at issue were generic and registered in good faith. The Panel agreed with Complainant’s assertions and found Respondent in violation of the Policy. Therefore, the Panel transferred the disputed domain name to Complainant. Indianapolis Downs, LLC v. Mazzone, FA 1244694 (Nat. Arb. Forum Dec. 30, 2008).

The Atlantic Paranormal Society and Pilgrim Films and Television, Inc. v. Domain Admin

Complainants, The Atlantic Paranormal Society (“TAPS”) and Pilgrim Films and Television, Inc., brought a UDRP claim against Respondent, Domain Admin, for the <taps.com> domain name. Complainant TAPS has registered its TAPS mark with the United States Patent and Trademark Office for its use in connection with a television series highlighting paranormal activities. However, the Panel found Complainant did not provide evidence that it had rights in its TAPS mark predating Respondent’s March 20, 2002 registration of the disputed domain name. Therefore, the Panel concluded Respondent could not have registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). Thus the Panel found that Complainants had not satisfied the requirements under the Policy and declined to transfer the disputed domain name. The Atl. Paranormal Soc. v. Domain Admin, FA 1242901 (Nat. Arb. Forum Mar. 11, 2009).


E-PRACTICE

Are Smartphones Making Jurors Smarter?

In 2008, the number of people using mobile devices to access news and information on the Internet has doubled. At the same time the use of smartphones, such as the Blackberry or the iPhone, for social networking and blogging has increased 427%. The proliferation of smartphones is definitely benefitting consumers who have better mobile Internet access and mobile applications. However, the recent expansion of smartphone use is also making its way into the courtroom and deliberation room through use by jurors, and this intrusion is not pleasing everyone, especially not judges and lawyers. The problem has become so prevalent that judges are sometimes forced to declare mistrials in cases where jurors have been using smartphones during trial and deliberation.

Jurors are supposed to decide cases on the facts presented to them, and are not supposed to seek any outside information. But recently, some jurors have been violating the evidentiary rules that prevent inappropriate or prejudicial information from reaching the jury. In a recent Arkansas civil trial, a building products company asked the court to overturn a $12.6 million judgment because, it claimed, a juror had sent updates to a Twitter posting during the trial. Similarly, a juror in a federal corruption trial updated his Twitter posting, saying that a “big announcement” was coming.

What seems more alarming is how easily jurors can access outside information. A juror on a break could very easily use a phone to access otherwise restricted information about a defendant, access news reports about the case, or even use Google Maps to revisit the scene of an accident. Moreover, even if jurors’ phones were to be confiscated, nothing would stop a juror from using a home computer for these extra-curricular activities, unless the jury is sequestered.

This extra research has resulted in some interesting solutions. For example, on March 23, 2009, United States District Judge Moreno, Chief Judge for the Southern District of Florida, responded to this problem with a new administrative order barring all cell phone use . The order also states that a violation of this order will result in contempt of court. This new order comes less than year after Chief Judge Moreno issued an order allowing cell phone use in court rooms. In addition, attorneys have now begun to monitor jurors’ postings and websites. While these restrictions and extra monitoring may lend some help in catching wayward jurors, another, possibly more effective method is to encourage jurors to self-police themselves. As the theory goes, if self-policing can contain the violation to one person, then only one juror has to be replaced, rather than declare a mistrial which can greatly increase the cost of attorneys, clients, and the judicial system to retry the case. But, as the number of customers buying smartphones increases, the problem of jurors with outside information will most likely increase as well.


IN THE NEWS

The Safest Place to Store Your Data: Your Hard Drive, or “The Cloud”?

CBC News, March 18, 2009: Hackers, identity thieves, viruses, hard drive crashes, law enforcement agents, fires, floods, and a host of other dangers can all do nasty things to your files, so where is the safest place to keep them? Keeping sensitive files in a server on the internet – sometimes termed “in the cloud” – has the advantages of portability and the large security apparatus of a company such as Google. If your hard drive is lost, stolen, or damaged, files remain safe in the cloud. However, hard drive storage puts you in control of your own data and keeps it out of the hands of unknown cloud data and security managers. Experts say when choosing where to keep your files, consider which risks you are more comfortable taking and the level of sensitivity of the data. Link to full story

A Bill to Shift Cybersecurity to White House

Cnet.com, March 20, 2009: A bill authored by Senators Jan Rockefeller (D-W.V.) and Olympia Snowe (R-Maine) would take responsibility for cybersecurity from the U.S. Department of Homeland Security and give it to the White House. The bill would create an Office of the National Cybersecurity Advisor and a Cybersecurity Advisory Panel to advise the President and address national and international cybersecurity issues. Industry groups are expected to oppose a provision of the bill that would give the National Cybersecurity Advisor the power to disconnect “critical” federal networks from the Internet in the event of a cyberattack. Link to full story

Economic Stimulus Plan Spurs Spam

Cnet.com, March 4, 2009: Since President Obama’s economic stimulus plan was launched, the Federal Trade Commission has reported a large uptick in spam related to the stimulus plan. According to the FTC, “[d]eceptive Web sites, advertisements, and e-mail campaigns have cropped up across the Web in recent weeks, luring consumers into scams by promising them federal grant money from the stimulus package.” Both Google and Facebook have joined with the FTC to pull fraudulent advertisements related to the stimulus plan. Many of the advertisements use President Obama’s photo and offer funds through the stimulus plan. The FTC believes that these fraudulent advertisements and spam usually lead consumers to giving out sensitive information, which is then used by the recipient for identity theft. Link to Full Story

Web Inventor Warns about Internet Snooping

Guardian.co.uk, March 11, 2009: Sir Tim Berners-Lee, the inventor of the worldwide web, warned that third parties, including commercial companies shouldn’t be allowed to view consumers’ Internet browsing. Knowing what a consumer is browsing through can be very helpful to a third-party because it shows exactly what the consumer is looking for at that moment in time. This sensitive information can be very powerful to companies looking to sell goods or services. Sir Tim Berners-Lee believes that Internet users browse the worldwide web in a particular fashion right now and their Internet activities would change greatly if they knew a third-party was watching their every move. He maintains that third-party possession of this information about Internet usage could contribute to activities detrimental to the interests of Internet users, like selling confidential personal information, affecting job application considerations, and determining insurance premiums. Link to Full Story


CALENDAR OF EVENTS

 

April 16-18, 2009

ABA Business Law Spring Meeting
Vancouver, British Columbia

May 13-15, 2009

AIPLA Spring Meeting
San Diego , California

May 16-20, 2009

INTA Annual Meeting
Seattle, Washington

 

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DOMAIN NAME DISPUTE INFORMATION

To file a domain name dispute resolution claim, see http://domains.adrforum.com. Questions regarding domain name dispute resolution or e-commerce arbitration may be directed to domaindispute@adrforum.com.

 

Note: The information found in this newsletter is designed to provide accurate and authoritative information regarding the subject covered, but is not intended as legal advice.