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What is Litigation?

Litigation is the legal process through which the plaintiff and defendant (litigants) argue their side in court to achieve a specific outcome (monetary award, injunction to stop use of patented invention, avoidance of paying a settlement, etc.).

Both businesses and individuals can file complaints with the court to start the process. In the end, the side that provides the best argument or demonstrates enough proof of their claim wins the suit. Typically a judge determines which side wins in litigation, but in some states, sides may request a trial by jury instead.

The Litigation Process

The party who initially files a complaint with the court is known as the Plaintiff. The party or parties named in the complaint are known as the Defendants. Once a complaint has been filed, defendants have a specific amount of time to file a response. From there, other documents providing evidence against the defendant or plaintiff may be filed along with compensation demands.

In many cases, these lawsuits never make it to a courtroom. Other means including mediation and arbitration may be used to help plaintiffs and defendants reach some sort of agreement (monetary compensation, injunction or other constraints, etc.). Mediation and arbitration typically cost less than a trial and help ensure that both parties feel satisfied with the end result – unlike a trial where a judge (or jury) rules either for the plaintiff or defendant.

If the case goes to trial, the party that doesn’t win the lawsuit may file an appeal. This may or may not lead to a retrial or the overturning of a ruling.


The mediation process involves each side sitting down and negotiating the finer points of the lawsuit until an agreement is reached. A trained, professional mediator acts as a neutral third-party to help both sides reach a fair agreement. Agreements reached during mediation are non-binding, which means that neither party has to legally follow-through with the agreed upon settlement. In most cases, however, both parties involved really want resolution and try their best to adhere to the agreement. If a mutual agreement is not possible or is not upheld, the lawsuit may continue to trial.


Similar to mediation, the arbitration process helps both parties reach a fair agreement. The only real difference is that all agreements reached during the process are binding – meaning that both parties must adhere to the agreement or face further charges.

Types of Litigation

There are many types of litigation including:

  • business litigation
  • commercial litigation
  • civil litigation
  • securities litigation
  • personal injury litigation
  • intellectual property (IP) litigation

The type of litigation a particular lawsuit falls into depends on the nature of the suit.

Business Litigation

This type of litigation involves one or more businesses or individuals. Lawsuits pertaining to breach of contract, copyright or patent infringement, fraud, or unfair competition, commonly fall into this category.

Commercial Litigation

This type of litigation involves one or more businesses or individuals. Lawsuits pertaining to aspects of business include partnership disputes, business dissolution, employee disputes, licensing agreements, class action suits, and other related business matters may fall into this category.

Civil Litigation

Civil litigation typically involves one or more individuals seeking monetary damages rather than a legal ruling. Reasons to file a civil lawsuit include wrongful death, medical malpractice, anti-trust issues, employee safety issues, personal injury, and landlord/tenant disputes.

Securities Litigation

Securities litigation include lawsuits filed by employees, partners, shareholders, fund managers, pensioners, and others that pertain to potential violation to the Securities Act of 1933, breach of contract, or misuse of company or organizational funds.

Personal Injury Litigation

This type of litigation may also fall under civil litigation as most people that file personal injury lawsuits seek monetary damages for work-related, medical malpractice, slip and fall, or other types of personal injury that may inhibit their ability to earn a living or advance in their career.

Intellectual Property (IP) Litigation

This type of litigation may also fall under business or commercial litigation. IP litigation typically involves businesses or individuals that file a complaint for infringement of their ideas, recordings, or trade names. Typically, the plaintiff claims the defendant knowingly or unknowingly used their protected works or processes without permission.

The Lexero Law Firm Can Help

If you want to file a complaint for litigation or you’ve been named in a litigation complaint, contact Lexero Law Firm today. The firm offers an attorney roster that is can offer expert counsel, advice, and representation in court, mediation, and arbitration proceedings.

Understanding Patent Litigation

If you’ve been accused of ‘stealing’ a patented invention, you may face a myriad of legal obstacles that could result in the loss of time and money for your business due to fighting the charges brought against you.

Patents allow businesses and individuals to legally protect their property from use by another business/individual in its entirety or in conjunction with other products. The use of a patented invention without permission from the patent holder is called patent infringement.

The Patent Litigation Process

Unfortunately, the patent litigation process is a long one. First, those holding the patent need to prove patent infringement had taken place. This means more than just accusing a business/individual of ‘stealing’ an invention. Also, if the defendant has ample financial resources and time to defend themselves, patent litigation cases may be dragged out for years.

After the patent holder files a complaint, the defendant must provide a response. Then both sides begin preparing for trial. Both must provide evidence supporting their claims.

Possible outcomes of these types of lawsuits generally include:

  • Temporary or permanent injunction – this prevents the defendant from continuing to use a patented invention for a specific amount of time or indefinitely.
  • Monetary Award – issued to the patent holder as a way to cover the loss of potential earnings related to patent infringement, tarnished reputation, time and money spent on legal fees and other costs, etc.
  • Settlement – each side comes to an agreement as to how to end the lawsuit (defendant pays monetary award, agrees to stop using invention, injunction, or patent holder agrees to licensing terms, etc.)

In some cases, both parties may agree to mediation instead of a trial. Mediation usually costs much less than litigation and helps both sides come to terms that are fair and reasonable in less time.

Having an experienced litigation attorney on your side can make the difference. If you find yourself involved in a patent litigation consider contacting Lexero for assistance in obtaining the best possible result in your patent matter.

Mediation and Arbitration: Alternatives to Litigation

Litigation is not the only option when it comes to reaching a settlement with another party. Litigants can agree to other means such as mediation or arbitration to reach an agreement that’s fair for both sides. Unfortunately, once a complaint goes to trial, a judge or jury will have the final say in terms of damages paid, injunctions, and other rulings.

During a trial, both sides will be able to present evidence, but will not have any negotiating powers. And while an appeal may be filed after a ruling, there is no guarantee the appeal will be granted.

Reasons to Consider Mediation or Arbitration

In addition to being able to negotiate freely with another party, mediation and arbitration cost less than a trial. Depending on the complexities of the case, litigation can last a year or more. For many individuals and businesses, the time spent in building a case can cost money – the cost of legal fees can also cost a lot depending on the type of research and time needed to adequately prepare for a trial.

Another reason why those involved in litigation should consider mediation or arbitration is the amount of time it will take to reach an agreement both parties can be satisfied with. In most cases, it may only take a day or a week to reach an agreement. A courtroom trial can take a month or more depending on the scope of the suit (on top of months of pre-trial preparation). For businesses and individuals that want quick resolution, mediation or arbitration may be the best course of action.

Mediation vs. Arbitration

Though similar in approach, agreements reached through mediation are usually non-binding. This means that either party may reconsider the agreement at a later date and reschedule another session or continue with a trial. Arbitration, on the other hand, is usually binding. This means that both parties are legally responsible for holding up their end of the agreement. If not, then the suit will go to trial and those that did not adhere to the agreement reached may suffer additional penalties.

The Mediation Process

The mediation process is fairly simple. Both parties meet (with or without their attorneys present – this depends on the wishes of both parties) with a professional mediator who has no stake in the outcome of the process. Using a third-party to negotiate an agreement helps ensure fairness for everyone throughout the process.

During the session(s), the mediatorwill ask both sides to describe the issue and potential resolutions. The mediatorwill then guide both parties to reach a ‘middle-ground’ through further negotiations. If no agreement can be reached after a certain amount of time, the mediator will continue to work with the parties or may recommend pursuing the litigation process.

If an agreement is reached, both parties will sign a non-binding or binding contract drawn up by the mediator/arbitrator. Contracts typically include all points reached in agreement, payment deadlines, and other details agreed upon by both parties.

The Arbitration Process

Arbitration is quite similar to going to court. However, arbitration is generally more streamlined and moves faster than traditional litigation. In an arbitration proceeding, the parties agree to have a neutral third party, called an arbitrator, to decide their claims. Arbitrators are usually former judges or established practicing attorneys and are often retained via organizations such as the American Arbitration Association.

Once an arbitrator is selected, both parties present their case to the arbitrator. Usually, there will be written materials, but there may be no oral argument at all. The arbitrator makes a decision based on the pleadings alone in many cases. Arbitration may be binding or non-binding, as the parties may agree in advance. Non-binding arbitration is often used when one or both parties wants to “test” their case and how it may play in a formal courtroom. Binding arbitration is usually employed when the parties can’t agree on a settlement, but can agree to have a third party make a final decision about their dispute.

Most formal courts strongly prefer that any agreements about binding arbitration stand. Accordingly, parties should usually not agree to a binding arbitration arrangement unless they are comfortable with the dispute being fully resolved via the arbitration process.

The Lexero Law Firm

Mediation and arbitration can be rigorous processes that require the ability to carefully negotiate each detail of a lawsuit. It also requires the know-how to “give and take” with other parties involved. If you want to avoid a trial, contact Lexero Law Firm today to learn more about the alternatives to litigation. My firm can help you negotiate the best deal possible to save time and money compared to a lengthy and costly lawsuit.

What Does Cyber Law Mean in Today’s World?

Areas of Cyber Law on The Internet Today

In many ways, the World Wide Web is a bit like the Wild Wild West of the 21st Century. There’s a huge realm of things people are discovering how to do online, and many of them aren’t exactly on the up and up. Cyber Law or Internet Law attempts to bring order to this budding world that has so much promise, and so many dangerous possibilities. Here are some common areas that Cyber Law commonly needs to address to keep order on the Internet.


Privacy first started to become an issue in the United States in the 19th Century. The prevalence of “Yellow Journalism” prompted Samuel Warren and Louis Brandeis to pen “The Right to Privacy” in 1890. Since then, it has been recognized that new levels of technology required a new attention to the issue of privacy. In 1967, the U.S. Supreme Court ruled to establish the Reasonable Expectation of Privacy Test. The test said that a person needs to actually expect privacy, and that society needed to recognize the expectation as reasonable.

The Privacy Act of 1974 further solidified the need to recognize privacy rights. It was inspired by the Watergate Scandal in the U.S. and was enacted just months after Richard Nixon resigned the U.S. Presidency. Here, even long before computers were commonplace, Congress recognized that the use of computers and information technology was growing and becoming increasingly important to Government operations and the collection, maintenance and sharing of a person’s personal information put their privacy at risk. In 1986, the Electronic Communication Privacy Act sought to reaffirm rules on wiretapping, stored communications, and pen registers that monitored phone communications and later Internet communications. The driver’s Privacy Protection of 1994 prevented the DMV from sharing personal information found on a Driver’s License. In 1999 the protection of financial information at banks and insurance companies was addressed.

After September 11, 2001, the threat of terrorism became all too real, and the government began reconsidering the relationship between personal privacy and national security. The Homeland Security Act was enacted in 2002 and the Department of Homeland Security was developed which included a Privacy Office. In 2004, the Intelligence Reform and Terrorism Prevention Act mandated that intelligence be shared as conveniently as possible, and also set up a Privacy and Civil Liberties Oversight Board to balance terrorism concerns with the rights of law abiding individuals.

Data Ownership

Just because information is easily accessible on the Internet doesn’t mean it is always free. Intellectual property takes valuable time and talent to produce, and the ability for those who own it to profit is a serious concern. Copyright laws have been harder to enforce which has led to various cases of piracy for written, audio, video, and software content across the web. Certain encryption methods have been developed in order to help combat the illegal use of these types of properties. For example, much of the online written content needs to be verified as original through Copyscape or similar watchdogs before it is sold. Downloading without permission and especially profiting from those downloads can have serious penalties.

There are, however, various times where information can be used in a limited manner that falls under “fair use.” Many have begun to simply offer material for free and use advertising as a means to gain revenue for the information.

Censorship and Free Speech

The Freedom of Speech has always been something we have fiercely tried to protect, and at times those attempts are at odds with the desire to protect children or other vulnerable persons. The Child Online Protection Act of 1998 was among the first steps taken to see that children under 13 were protected from Internet predators that could be present in chat rooms or on other community based websites. Sites accessible to the public that require registration, ask users to confirm they are over 13 before joining an online community.

Adult content, mainly material that may be excessively sexual or violent in nature is also supposed to be segregated and labeled as such. Parents have the option of exercising in home censorship by setting up filters to help keep this content from being visible to their children.


Cyber harassment takes many forms. It can range from bullying in chat rooms or on social networks to hacking into other people’s computer systems, Phishing for personal information that might compromise a person’s financial information or identity, or creating computer viruses for the mere purpose of wreaking havoc on the web.

Cyber law is often difficult to enforce, but more and more technology is being developed to help combat those who are dishonest or even malicious with their Internet activities. Because of this, it is important for everyone to exercise care when online and verify that the sites they visit and conduct business on have the ability to provide the security they need. Consult an internet law lawyer for information or legal help with cyber law related issues.

The Libya Anticybersquatting Domain Name Lawsuit

I recently successfully represented Mr. Ahmad Miski in a matter originally captioned as “The Great Socialist People’s Libyan Arab Jamahiriya and the Embassy of the Libyan Arab Jamahiriya v. Miski.” Stated another way, my client was sued by the “Embassy” of Libya. The case was a domain name matter involving the domain names embassyoflibya.org, libyaembassy.com, libyaembassy.org, and libyanembassy.com. Read court’s full decision here.


Factual Background


My client is a “certifier” of documents via his firm known as the Arab-American Chamber of Commerce. Stated another way, he works with third party businesses to have documents “legalized” by the various embassies in the Arab world. While embassies can “legalize” documents, my client does not, and cannot, offer that service and the Plaintiff and the Defendant are not direct competitors. Plaintiff alleged that my client’s use of the domain names to promote his business was an infringement of its common law trademark in the term “Libya Embassy” and attempted to gain control of the domain names in question.


After a full bench trial, which is relatively rare in these types of disputes, District Court Judge Reggie Walton ruled, correctly in my mind, that the Plaintiff had failed to demonstrate that it had trademark rights in “Libya Embassy” for purposes of legalizing documents and my client prevailed in his efforts to retain control of the domain names.




In my mind, this case was interesting for a variety of reasons.


First, I was frankly surprised at the minimal demonstration of trademark rights by the Plaintiff in this matter. When alleging common law rights, the burden is on the Plaintiff to prove that its mark is “famous” enough to be legally protectable. In this case, the Plaintiff did not produce a very strong record of use in commerce. Among other issues, the Plaintiff referred to itself using a variety of inconsistent titles, including “Libya Bureau” and “Embassy of the Libyan Arab Jamahiriya.” Plaintiff also did not present substantial marketing or survey evidence that would indicate strength of its marks. Finally, testimony at trial indicated that the Plaintiff did not even keep consistent records of the number of documents that were legalized each month.


While I appreciate that reasonable minds may disagree, I’m not sure the Plaintiff was realistic about its ability to prove its common law trademarks given the evidence presented at trial. On the other hand, I suspect the Plaintiff did not expect to be forced to fully demonstrate its rights, either. I often see “bigger” plaintiffs file suit against “smaller” defendants in the hope that the matter will be settled well before trial when a defendant balks at the potential costs of defense compared to the value of the domain name. I applaud Mr. Miski for properly and comprehensively defending himself in this matter and I would encourage other domain name holders with credible defenses to do the same.


Second, this case was interesting for the political undertones. The United States and Libya maintained relations from the 1950s until 1986, when an Executive Order by President Reagan imposed unilateral sanctions on Libya. The 1988 terrorist bombing of Pan Am Flight 103 near Lockerbie, Scotland, was a watershed moment in the strained relations between the two nations.


These strained relations were relevant in the case because the Plaintiff had to demonstrate consistent commercial use of its alleged trademark to demonstrate rights to the domain names. The fact that Defendant registered the domain names during a period in which formal U.S./Libya relations were not in effect was relevant in disputing the Plaintiff’s alleged trademark rights. Defendant argued that he could not be violating a trademark if an alleged trademark holder was not even operating in the relevant commercial space. Alternatively, we argued that if a trademark did exist prior to the sanctions, the purported mark would have been abandoned for purposes of trademark rights analysis.


While Judge Walton did not base his decision on this fact, I’m of the view that a unilateral imposition of sanctions should be considered “abandonment” when evaluating trademark rights. Unilateral impositions of sanctions are not generally meted out by a political actor without some identifiable reason. If sanctions are imposed it is not a logical leap to assume that a purported mark holder did something to deserve those sanctions. Judge Walton’s opinion does not reach this issue, given the Plaintiff’s failure to prove rights in its mark, but I think it would have been interesting precedent if it had.


At the end of the day, this was a good decision that came to the right result. I’m pleased that Mr. Miski prevailed in his lawful defense, but this case is also an excellent reminder that domain name matters rely on trademark rights. Plaintiffs need to be realistic about their rights before instituting similar matters and Defendants should not be afraid to defend their rights when lawfully employing descriptive domain names.


Visit the Lexero domain lawyer page for more information on domain law, disputes, cyber-squatting, and more.

Internet Safety For Kids

These days, kids get online at a younger age than ever before. There are some very useful things kids can do online, such as learning, research, educational games, and more. The internet is also something that need to be approached carefully for young users. There are plenty of cyber threats such as scams, identity theft, inappropriate content, and other dangerous things online that kids need to stay away from. With two thirds of internet users falling victim to some sort of cyber crime, it’s important to know what you’re up against and how you can keep your kids safe. The Internet Crimes Against Children (ICAC) Task Force Program is an organization that has received more funding over the years in an effort to reduce internet crimes against children.

With things like social media becoming integrated into our lives more every day, kids are spending much higher amounts of time online just in the last few years. Take a look at the information below for facts on internet crime against children, and tips for parents to help prevent these types of crimes.

Internet Safety For Kids

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Menhart Quoted on Do-Not-Track


I was recently quoted on the FTC’s proposed “Do Not Track” list in the Maryland Daily Record (subscription required). The proposed “Do Not Track” list is a follow-up proposal in light of the success of the “Do Not Call” list. The proposal would allow consumers to notify advertisers that they do not want their personal information shared for online marketing purposes. The article discusses a variety of viewpoints as to the necessity of such regulation and looks at the potential difficulties with implementing such a list.


My quote in the article points out that advertisers’ fears about implementation of a “Do Not Track” list are probably a bit overstated. Consumers that are on the “Do Not Call” list are among those least likely to respond to a phone advertisement and being on the “Do Not Call” list is a free way for advertisers to eliminate people least likely to be good telephone sales prospects. I suspect that the same principle will be true of people that actively maintain membership on a “Do Not Track” list.

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Can You Remove Facebook or Twitter Posts?


I am often contacted by potential clients that discover that ostensibly “private” information on social networks, particularly Facebook and Twitter, has become public, often to the potential client’s detriment. The content has often become public because a third-party, including other Facebook or Twitter users, or a third party blog, reposts the information, often in a negative light.


Content of concern to potential clients often includes an inappropriate photograph, or a now-regretful Facebook comment or Twitter post. I also routinely see concerns about direct messages on Twitter or wall-posts on Facebook. In most cases, the potential client asks what can be done to remove the offending content.


Unfortunately, there is usually little chance to remove such content because there is no legal basis on which to base demands for removal. Information that a user generates and publicly posts is generally not legally protected from further dissemination or commentary, except in very special cases where other legal principles such as copyright protection, false light or defamation may apply. If you have questions about your specific situation, contact a privacy attorney here at CyberLaw PC.


Potential clients are often frustrated to hear that opportunity for removal is limited and ask what can be done to prevent future scenarios. I generally offer three main tips to such potential clients:


First, you should always assume that ANY content you post or share on the Internet can become public. Whether it is e-mail, a photograph, a video or simple text, any document shared digitally, even amongst friends, can often find itself becoming viral, replicated thousands of times as it is shared via e-mail and other electronic means. Search for Karen Owen’s “List”, for one such example of an unintended viral consequence.


Second, I generally do not recommend that you issue any type of takedown notice unless you are confident that you have a colorable legal justification for doing so. Individuals that were willing to post the original content in a negative light are quite likely to post your takedown notice as well, compounding the problem. More importantly, there is little chance that the content will be removed as a result of the takedown notice.


Finally, I strongly recommend that EVERYONE that maintains any type of Internet presence register and develop the .com version of their full name. For example, if your name is John Smith, I would recommend that you register JohnSmith.com. If your name is similarly common to John Smith, you may want to use your profession, location or middle initial or name. For example, AttorneyJohnSmith.com or JohnSmithWashingtonDC.com, or JohnMSmith.com.  Prominent individuals at start up companies or firms with strong figure heads may also want to do the same.  


Once the name is registered, be sure to occasionally post newsworthy information about yourself using simple blogging software such as WordPress or Joomla. In most cases, you website will rise very quickly to the top of the search results when people search for you by name and will give you the opportunity to have the opportunity to share “your side of the story” as to any criticism you receive for uncontrolled content or other issues that may arise.


Many people, particularly professionals such as doctors, lawyers, accountants and journalists, will receive some type of negative online attention, warranted or not, at some point in their lives. While an unfortunate reality, taking steps to maintain control of your content and being prepared to proactively respond to criticism makes good sense in both a personal and business context.




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Firm Launches Website for U.S. Copyright Group Defendants


CyberLaw P.C. recently launched a new website, available at USCopyrightGroupDefense.Com, aimed at providing information about U.S. Copyright Group and its copyright infringement cases against numerous John Doe defendants. The site features general information about U.S. Copyright Group, including details about the parties, ISPs and works involved in many of its cases, most of which are filed in Washington, D.C. The site provides simple and straightforward information about U.S. Copyright Group cases, including possible defenses.


The site also advertises the availability of a low-cost individual phone consultation option for U.S. Copyright Group defendants. The phone consultation is always with a copyright attorney with defense experience against U.S. Copyright Group. The offer is designed to assist individual defendants, many of whom may not be entirely familiar with the legal process or copyright law, in understanding their individual case and evaluating options for best handling the matter in a cost-effective way.

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UDRP Panelist Cites Menhart Analysis on Laches


I’m a bit late to discuss this, but I aim to give it appropriately detailed attention now. In Charter Communications, Inc. v. CK Ventures Inc. / Charterbusiness.com the Hon Neil Brown QC, a respected UDRP Panelist, cited my prior post on the potential applicability of laches as a defense to a UDRP complaint:


This panelist was part of a majority in Board of Trustees of the University of Arkansas v. FanMail.com, LLC, WIPO Case No. D2009-1139 that felt that there is scope for looking again at the assumption that laches has no part to play in UDRP proceedings, a decision that has been the subject of at least one commentary at “www.cyberlawonline.com” and which may stimulate some debate.


My article to which the Hon. Neil Brown specifically refers is entitled “A Potential New Defense Under UDRP.”


The Charterbusiness.com matter involved a case where the complainant had waited approximately seven years to file its complaint. While recognizing that laches “is not generally recognized under the Policy” Respondent, correctly in my view, raised a laches defense. The majority rejected the defense, citing decisions in The E.W. Scripps Company v. Sinologic Industries and Tom Cruise v. Network Operations Center / Alberta Hot Rods. Panelist Brown issued a separate opinion. Notably, he opined:


Without going into it in detail here, it may be time for a closer examination of [laches] and whether it is appropriate to exclude it as a defence in cases where the complainant has waited years before filing a complaint.


For better or for worse, a laches defense continues to be a topic of discussion in UDRP decisions. As a result, two questions arise. First, does such a defense make sense in a UDRP context? Second, what is a rational defense practitioner to do?


On the first issue, I am of the opinion that a laches defense, or some related “time-limit” protection, such as a statute of limitations, makes sense in a UDRP context. The present policy effectively allows a complainant to wait for an eternity before filing a case. While there is certainly some unfairness to a respondent in such situations, there is also the added potential problem of “spoliation” of evidence. Furthermore, the preclusion of a laches defense (or a related statute of limitations) has the effect of failing to motivate a mark holder to pursue the action in a timely manner. For example, an unscrupulous mark holder might take advantage of an unsuspecting domain owner by allowing development of the domain prior to the filing of a complaint and potential seizure of the name.


On the other hand, I certainly appreciate the counterarguments that the UDRP policy does not specifically provide for a laches defense or that the specific factual inquiries may be problematic in the context of an arbitration proceeding that is designed to favor efficiency.


In my view, however, the implementation of a laches defense would not be a terrible hindrance to the goals of an efficient arbitration proceeding. In many cases the inquiry could be almost as simple as calculating the time between the registration date of the domain name and the date the complaint was filed. Furthermore, arbitrators regularly decline to reach certain conclusions about, for example, potential trademark infringement or unrelated business disputes when the facts of the matter exceed the scope of the policy. In the end, I see little reason that a laches defense could not be considered in a UDRP context when the circumstances warrant.




The second issue, of particular interest to practitioners, requires us to consider the appropriate course of action when it comes to a UDRP defense. I’m of the opinion that when you or your client has a colorable laches defense, it is proper to raise it. While I appreciate that laches is “not generally recognized under the Policy,” it is also clear enough that the defense of laches is at least “in play.” UDRP respondents would be wise to use that status to their advantage when appropriate.

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