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.

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

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.

Harassment

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.

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.

Analysis

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.

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.

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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.

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.

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.

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.

Recently introduced legislation entitled “The Main Street Fairness Act” seeks to require online retailers to collect sales tax for the benefit of states on most online purchases. Internet Retailer recently examined the bill in some detail. CyberLaw PC attorney Eric Menhart is quoted in the piece, entitled “Online sales tax proposed in Congress.” Eric was asked if the recently proposed legislation, introduced by Rep. Bill Delahunt (D, MA) had a decent chance of success: “You need a decent majority of states as members of the SST,” he says. “Until you have that, it will be very difficult to get enough Congressional attention and support for this legislation.”

Eric is the author Taxing the Internet: Analyzing the States’ Plan to Derive Online Sales Revenue. Published in 2007 by the Journal of State Taxation, the article is an in-depth discussion of the legal and political barriers to states’ interest in universally collecting sales taxes on all types of online transactions. Eric also spoke on similar topics at the 2010 Internet Retailer Conference and Exhibition in Chicago, IL.

The recent UDRP decision concerning “razorbacks.com” caught my eye due to a relatively comprehensive panel discussion on the issue of laches (pronounced: ˈla-chəz) under the UDRP.

Laches in law is a defense that calls into question the complaining party’s good faith in bringing its complaint in a untimely manner. A defendant asserting laches argues that a plaintiff that delays in asserting its claims, to the detriment of the defendant, should not be entitled to recover on its claims.

In “razorbacks.com” the Panel noted that “a majority of the Panel (Messrs. Badgley and Brown) is prepared to acknowledge the possible applicability, in appropriate and limited circumstances, of laches in a case under the Policy.”

The Panel supported their decision in several ways. First, the Panel notes that Rule 15(a) of the UDRP provides that “a panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

The Panel also addressed previous decisions addressing and dismissing a laches defense under the Policy. First, the Panel addressed whether laches fell within the “‘catchall’ language of Rule 15(a) because, strictly speaking, it is a principle of equity and not law.” Panelists Badgley and Brown disagreed, noting that in many jurisdictions, the “sharp line between law and equity has been blurred if not effaced.” Panelists Badgley and Brown also found that concerns about intense factual inquiry in laches analysis “might be no more difficult than disposition of other questions that routinely come before UDRP panelists.”

In the end, the majority of the Panel did not decide the “case on the basis of a laches defense,” but whether “characterized as laches or not, the considerable delay on the part of Complainant in bringing the Complaint militates against its success in this proceeding.” The Panel went on to deny the relief sought by Complainant.

While the Panel chose their words carefully, the implication seems clear: UDRP respondents that have a colorable laches defense would be wise to raise it in their responses under the Policy. The Panel seems to be inviting laches defenses in the hopes that the issue will become more salient in the minds of other panelists. While there is no guarantee that future panelists will agree with the razorbacks.com Panel, this decision has unquestionably presented an open invitation for future laches defenses under the UDRP.