There was a recent ruling in the Apple v. Amazon case, that I previously discussed in the article âApple Making Power play By Suing Amazon Over App Store Trademark.â This recent ruling involved Apple's attempt to block Amazon's use of the term "app store" pending trial in this case. Apple claims infringement and dilution of its mark. To win on infringement, it must ultimately show that it has a legally protectable mark and that Amazon's use of the term "app store" to describe where it sells applications for use on Android devices will likely confuse consumers about the origin of the goods being sold. To win on dilution, Apple must show that the trademark is protectable, that it is "famous," and that Amazon's use of it dilutes its value.
To get a preliminary injunction, Apple needed to convince the judge that it is likely to win at trial and also that it will be irreparably harmed if Amazon is not blocked from using the mark during the time leading up to trial. The judge said no to the preliminary injunction, not on grounds of lack of irreparable harm (that issue was never reached) but on the ground that Apple was not likely to win on the merits of its claims at trial.
As I have previously described, trademarks are classified as...
Recently, Amazon launched its new cloud based music service. Close behind them is Google and Apple. Amazonâs service provides cloud storage that is linked to its music store. Userâs get 5GB of online storage for free and 20GB if you buy an MP3 album from Amazon, and subsequent MP3 purchases donât count against the cap. Thereâs also a Cloud Player app for Android that can play music files stored on your account, it doesnât matter if theyâre files you purchased from Amazon or elsewhere, and Amazon has tools that will upload your iTunes purchases to make a switch easy.
Naturally, this new type of music service has got the music labels more than a little upset. They states that Amazon isnât licensed for streaming, and talk of lawsuits have already started circulating, as has a perception that Amazon legally over extended itself with the service. That perception has only become more pronounced after news was released that Amazon and Sony are now negotiating, and there is of course already some bad precedent for Amazon, MP3.com lost a lawsuit over a very similar service back in 2000.
But there is a chance that Amazon will emerge victorious from this, because their Cloud Player is built on top of massive amounts of bandwidth that...
Late last week Amazon unveiled itâs new cloud based music service. What does this mean? First came the iPod in the digital music revolution. It allowed users to take physical CDs and places the music in a digital library that would reside on their computer which the user could then transfer to the iPod and take it anywhere. But the limitation is that you can only play your music on that particular device.
Now there is the cloud. Users will upload their music to an Amazon hosted locker, or Cloud Drive (unlimited for Amazon purchased music and free up to 5 gigabytes for music purchased elsewhere). Using an application called a Cloud Player, users will be able to access that music on any computer connected to the internet (for free). Users wanting to keep large quantities of music, video and other material in Amazonâs cloud will have to pay a fee.
However, record labels donât necessarily consider it fair use for a user to make copies for personal use. Music publishers like ASCAP and BMI also are not pleased with Amazonâs new service. The head of marketing for ASCAP worried that the Cloud Drive âis simply a way to avoid having to pay songwriters and composersâ as well as artists.â
Last week the Berklee College of Music wrapped up its conference on the future of the music industry. Whatâs different from other similar conferences is that this was held by a school set to graduate a class bound for this very industry. High level representatives from Interscope, Tommy Boy , Warner Music and other labels were there to defend their industry.
As part of this conference, Damian Kulash from the bank OK Go, Ben Folds, Amanda Palmer and Neil Gaiman (most of who had split from the labels recently) locked themselves in a studio for 12 hours and came up with six new songs, with input from their fans, who were watching via Twitter.
Amanda Palmer said that âgetting signed meant reaching peopleâ. [it] meant people would hear your music. That doesnât mean anything anymore.â Gaiman stated âwhatâs interesting here is the incredible speed with which we can get what we do today to our fans, to the curious, to the people who just see a reference to it on the internet and want to find out what it isâ that completely changes everything.â
The music industry has seen CD sales drop 50% in the last year and many are saying that the old paradigms like shipping out millions of physical CDs is a thing of the past. There is a lot of fear...
Princeton Review, Inc. ("Princeton Review"), a test preparation service, obtained the domain name "kaplan.com," which contains the trademark of its commercial rival, Stanley H. Kaplan Educational Centers, Ltd. ("Kaplan"). In what is believed to be the first ruling on this issue, unanimous three person arbitration panel required Princeton Review to relinquish the "kaplan.com" domain name to Kaplan.
The first key fact is that the panel had to assume that Internet addresses can in fact act as trademarks. This is not surprising given the true nature of Internet addresses. Although the name "addresses" conjures up the post office addresses of real-world places, this is only part of the purpose of Internet addresses.
As summarized in the statements of the McDonald's pirate himself: "Domain names are to the Internet what addresses are to the Postal Service. They're more than that, really, since your domain name can tell the online world something about who you are. Domain names are kind of like postal addresses, vanity license plates and billboards, all rolled into one digital enchilada.â
The second key fact about the "kaplan.com" case confirms the ability of domain names to serve as trademarks. To quote the McDonald's pirate again:...
If you find yourself in a dispute over a domain name, the best alternative to pursuing the dispute through the courts is to take advantage of the domain name dispute policies that have been developed by ICANN.
Currently the preexisting non-court resolution policy has now been replaced with a Uniform Domain Name Dispute Resolution Policy created by ICANN and used by all accredited registrars. Under this new policy, a trademark owner can initiate a relatively inexpensive administrative procedure to challenge the existing domain name. In order to prevail, the trademark owner must show:
1. that the trademark owner owns a trademark (either registered or unregistered) that is the same or confusingly similar to the registered second level domain name;
2. that the party that registered the domain name has no legitimate right or interest in the domain name; and
3. that the domain name was registered and used in bad faith.
If the trademark owner successfully proves all three points in the administrative proceeding, then the domain name can either be cancelled or transferred to the prevailing trademark owner. If the trademark owner fails to prove one of these points, the administrative panel will not cancel nor transfer the domain name.
When a dispute occurs over a domain name, such as those described in earlier articles, the parties can always turn to the courts. While courts and judges have the authority to award control and ownership over domain names (just as they have authority to award control and ownership over any other property), the judicial process is slow and costly. Consequently, many parties seek to avoid the courts and turn to the domain name dispute policies of the domain name registrars. Refer to later articles for additional information regarding these policies.
Companies that bring a court action must present valid legal arguments on why a domain name registered to someone else should be canceled or transferred to an organization who wasn't quick enough to register the name first.
These arguments have been traditionally based on trademark law or dilution law (which are discussed in other articles on the TMRoe.com website). It has been difficult to present a strong case under the traditional principals of trademark law, especially when the party seeking to obtain a domain name either could not prove a likelihood of confusion (which is required under trademark law) or was a famous individual who never technically established trademark rights in...
The Internet has become wildly popular with businesses (including their inclusion of social media in their marketing plans, which will be the subject of future blog articles). Companies now realize that having a domain name that is the same as their company name or the name of one of their products is an extremely valuable part of establishing an Internet presence, marketing, research, product development and generating brand identification and loyalty. As described in a previous article, a company wishing to acquire a domain name must file an application with the appropriate agency. Before doing so, a search is done to see if their desired domain name is already taken.
When a company finds that the domain name corresponding to their corporate name or product trademark is owned by someone else, the company has the same options as with a standard potential trademark infringement case, i.e., 1) choose a different name or, 2) fight to obtain the domain name from its current owners.
Some well publicized examples of these types of domain names disputes are:
candyland.com: Both Hasbro and an adult entertainment provider desired the candyland.com domain name. Hasbro was too late to register the name itself, but it is never too late to...
To register a second level domain name under a top-level domain, a request must be made to an organization that has the power to assign names for that top level domain. For instance, The US Domain Registry administers the registration of second level domain names under the .US top level domain.
Prior to December 1999, this responsibility for the registration of second level domain names for the most popular top level domains, including .COM, .NET, and .ORG fell on Network Solutions Inc ("NSI"). As the vast majority of domain names are under one of these top level domains Network Solutions wished to avoid having to be the arbitrator between two parties who both desire the same domain name, so, NSI decided to simply adopt a first come, first serve arrangement with respect to domain names. Under this scheme, NSI would not question an applicant's right to have a particular domain name. If the domain name was available, the applicant was granted the name.
As of December 1999, the ability to register .COM, .NET, and .ORG domain names was spread out among many registrars. These registrars are accredited by The Internet Corporation for Assigned Names and Numbers ("ICANN"), a non-profit corporation formed specifically to control Internet...
Domain names are, in basic terms, the addresses of websites located on the Internet. Just like the address of a residence a domain name acts, as the address, necessary to locate a particular website on the Internet. E-mail is sent and web pages are found through the use of domain names.
As an example, the web address for the Facebook website is www.facebook.com, while Mark Zuckerberg might have an e-mail address such as firstname.lastname@example.org (both using the "facebook.com" domain name). Without the domain name, a computer would not know where to look for a particular web page, and e-mail routers would not be able to send e-mail to a particular person. But, domain names are much more than just addresses, they are often trademarks and are usually closely associated with a particular product or service.
Domain names are divided into a sliding scale of importance. The top level of the scale appears after the last dot ('.') in a domain name. In "facebook.com", the top level domain name is .COM. The .COM name is the most common (and most sought) top level domain name, and is used to indicate that the domain name is owned by a commercial enterprise. Other common top level domain names include .ORG (for non-profit organizations), .NET (for...