What Could Be More Generic Than CyberLaw?

At least I thought it was when I used it as the title of my book. I do not feel too bad though, as a quick Google search shows that at least 356,000 others apparently have my back on this. The problem lies with one Eric J. Menhart, a Washington D.C. attorney, who apparently believes he is the only one allowed to use the generic term cyberlaw in association with "providing information relating to legal affairs."

On the upside, Mr. Menhart appears to stand alone in this belief. Such uniqueness is actually quite amazing in this day and age, especially when you consider people have little difficulty mustering multitudes to support theories of a flat earth, galactic overpopulation, the profitability of multilevel marketing and even that George Lopez is funny.

In furtherance of his quest for CyberLaw domination, Mr. Menhart has filed a federal trademark application to obtain exclusive rights in the term "CyberLaw" as used in association with all things legal. Well, not ALL things legal, just:

Legal document preparation and research services for attorneys;
Legal research;
Legal services; Legal services, namely, preparation of applications for trademark registration;
Consulting and legal services in the field of privacy and security laws, regulations, and requirements;
Expert witness services in legal matters in the field of intellectual property and information technology;
Providing a website that features information on the development of international law, regulations, legal policies, and legal practices in a manner that promotes global governance by all types of organizations;
Reviewing standards and practices to assure compliance with intellectual property and information technology laws and regulations;
Attorney services;
Litigation services;
Legal services, namely, trademark maintenance services;
Copyright management;
Copyright management consultation;
Registration of domain names for identification of users on a global computer network;
Arbitration;
Arbitration services;
Consultation in the field of data theft and identity theft;
Intellectual property consultation;
Intellectual property watch services;
Licensing of advertising slogans and cartoon characters;
Licensing of computer software;
Licensing of intellectual property;
Litigation consultancy;
Mediation;
Patent licensing;
Preparing and filing incorporation papers;
Providing information relating to legal affairs.

In his defense, Mr. Menhart claims to have been using the CyberLaw trademark going all the way back to 2007. As my fiancée is more than willing to attest, I have things in my fridge which date prior to his first use.

For some strange reason, an intellectual property attorney at the Electronic Frontier Foundation took issue with Mr. Menhart's "overreaching invocations of IP rights," even going so far as to cast aspersions upon Mr. Menhart's common sense. Menhart responded that his trademark would only extend to "services rendered by lawyers to individuals, groups of individuals, organizations and enterprises." I mean it is not like he is just going to say this and then change his mind after he gets the a trademark registration on a generic term. Right?

GrokLaw, among others, is not so sure when it comes to Menhart's pledge. Given that Menhart has already asserted his CyberLawg "trademark" against another attorney, Groklaw seems to have some doubt that Menhart will not try to do the same with CyberLaw. Groklaw also points out that Menhart's own website asserts his trademark "rights" over areas NOT related to "individualized legal advice."

Now I could understand if a divorce lawyer was trying to monopolize DivorceLaw or a real estate lawyer going after RealEstateLaw; they are not intellectual property geeks by trade. A cyberlawyer, however, should know better than to attempt to monopolize a generic term. CyberLaw is in the dictionary, the encyclopedia, and is used ubiquitously by thousands of websites, including this one. Here are just a few examples utilizing the generic word CyberLaw in conjunction with one of the services outlined by Mr. Menhart:

Cyberlaw Central
Berkman Blog
BlawgIT
Learning Cyberlaw in Cyberspace
Stanford Law School
The New York Times
Cyberlaw.info
Harvard Law School
The Cyber Law Enforcement Organization
University of California, Berkeley
HG.org
Mishpat
Chicago-Kent College of Law
ICANN Watch


With regard to printed legal information, in addition to my own CyberLaw book, there are several other books providing legal information under the title CyberLaw. One has even been available since 1996 (although I question who is still buying a 1996 book on CyberLaw). Here is just a sampling of the books:


CyberLaw Text and Cases
Cyberlaw: Problems of Policy and Jurisprudence in the Information Age
Cyberlaw: Legal Principles of Emerging Technologies
Outlines & Highlights for CyberLaw
Cyberlaw & Its Implications
Cyberlaw and E-Commerce Regulation: An Entrepreneurial Approach
Cyberlaw: the Law of the Internet

Under 37 C.F.R. §2.33 an applicant for trademark registration must provide a sworn statement or declaration alleging:

That the applicant has adopted and is using the mark shown in the accompanying drawing; that the applicant believes it is the owner of the mark; that the mark is in use in commerce; that to the best of the declarant's knowledge and belief, no other person has the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when applied to the goods or services of the other person, to cause confusion or mistake, or to deceive; that the specimen shows the mark as used on or in connection with the goods or services; and that the facts set forth in the application are true.

Given that I assume Mr. Menhart is aware United States trademark law is premised upon priority of use, I would be very interested in hearing his explanation as to why he believes none of the foregoing entities have the right to use the generic term CyberLaw in association with providing information relating to legal affairs, especially in light of fact that many of those uses actually predate his own alleged use by several years.

As always, any comments you may have on this issue would be most welcome.

Brett Trout

Cyberlaw

Carpe Y'All Some CyberLaw

As all i-list bloggers know, Project Management sage Timothy Johnson is the author of the award-winning blog Carpe Factum. As you may not know, his latest post is a review of my most recent book, CyberLaw: A Legal Arsenal For Online Business.

Regular readers of BlawgIT are well aware of my inability to provide an unvarnished critique of my own scintillating work. Therefore, those of you looking for a little more objective take on this masterwork, should head over to Mr. Johnson's blog and carpe some factum.

Brett Trout


Carpe Factum CyberLaw

Marketing Firms Take Note

When Marketers Gets Lazy
A friend of mine, who just happens to be my favorite author, John Shirley, tipped me onto something rather interesting. It appears that the marketing arm of a web company decided creating something on their own was just a waste of time. Why not just steal a design from someone else? Sure, there are copyright, trademark and unfair competition issues, but they will never find us. Right?

Wrong
Unfortunately for the web design thief, the owner of the stolen design was pretty savvy. Not only did he locate the infringing design, but he devised a little poetic justice for the perpetrator. You see, the thief did not even take the time to host the stolen images on its own server. Instead, it merely linked to copies of the images on the owner's server.

Simple Solution
Instead of calling in the lawyers, sending a DMCA take-down notice, suing the pants of the designer and waiting months for a resolution, the website owner took a little more direct approach. He merely changed the location of the image and substituted one with a few miner modifications. Now, instead of

This image:














They get this image:



Butt of the Joke
Be forewarned. Like patent attorneys, artists and web designers have a rather warped sense of humor. When assessing the potential downside of marketing maneuver that infringes the intellectual property of others, time, money and quality time with your Cyber Law attorney should not be the only metrics in the equation. Don't dismiss the irreparable public relations nightmare that can occur when you don't own your own website.

Brett Trout

Santa is a Geek too

With Hanukkah here, and Christmas on the way, now is the time to grab a copy of the book Cyber Law for that special someone in your life. Nothing says "Santa loves you – even if you are a geek" like a copy of Cyber Law. And even if you are not a geek, but are willing to learn, Cyber Law answers legal questions about email, online auctions, spam, privacy, defamation, social networking, blogging and lots more. Here are what the experts are saying about Cyber Law:


"Trout successfully places complex legal issues into digital perspective"
Chris Pirillo - Lockergnome

"Your choices are easy, read CyberLaw or suffer the consequences"
Dave Taylor – Ask Dave Taylor

"The rich content and practical advice is bound to save you costly legal fees down the road"
Rush Nigut, attorney with Sullivan and Ward

"If you're opening a business online, have a business online or want to get online, this is a must read"
Matthew Krigbaum, attorney with Moyer and Bergman

"a great new book detailing some of the hottest legal topics surrounding businesses entering the online environment"
Michael Goldstein, attorney with Goldstein and Clegg

"offers tips on avoiding the pitfalls associated with blogging, online commerce, social networking and other Internet issues"
Lynn Hicks – Des Moines Register 10/2/2007

You can read more reviews on Amazon.

And if that still is not enough, tune in to 98.3 WoW FM tonight at 7pm for more in depth coverage of the book on Jim Goodman's Iowa Business Hour.

Go ahead. Replace Santa's lump of coal with a copy of Cyber Law – I promise not to tell.


Brett Trout


CyberLaw

Cyber Law - The reviews are in.

CyberLaw: A Legal Arsenal For Online Business hit the shelves last month. I just wanted to take some time to acknowledge all of the reviewers who have taken the time to offer their kind words. The reviews have been universally enthusiastic (be sure to let me know if I have missed any).

Across the country, from the reviews at Amazon, to the Des Moines Register, to reviews by master of the Internet Chris Pirillo, entrepreneurs like Sandra Renshaw, corporate attorneys like Rush Nigut and even other cyberlaw attorneys like Michael Goldstein, Cyber Law is being extraordinarily well received.

Remember, the first five Iowans to come up to me and mention Cyber Law at BlogWorld Expo in Las Vegas next month will get an autographed copy. Hope to see you there!

Brett Trout

Chris Pirillo Talks CyberLaw

Chris Pirillo, erstwhile Iowan and now one of the most famous people on the Internet (Google "Chris" if you doubt me) has just released a video interview with your's truly. The interview discusses my new book, Cyberlaw: A Legal For Online Business, covering the most common online legal questions asked by everyone from bloggers to businesses.

Chris' video series is quickly becoming a massive collection of priceless tidbits of Cyberknowledge. Check out the interview here and the whole collection of Chris' invaluable videos here.


Brett Trout

Pirillo Cyberlaw Brett Trout

New CyberLaw Book

CyberLaw: A Legal Arsenal For Online Business has just hit (virtual) store shelves this week. The outstanding original cover art, by renowned Des Moines artist Ron Wagner, tells you right away this is not your grandpa's lawyer's Internet law book. Well that, and the fact that $500/hr phrases like habeas corpus and res judicata are conspicuously absent from its pages.

Written clearly, in easy to understand language, CyberLaw spells out the most common online legal problems and solutions. From blogging to emailing, Cyberlaw guides you through the rapidly expanding maze of Internet law and regulation. A comprehensive guide to avoid online legal troubles that could bring your business to a grinding halt, Cyberlaw is a "crucial asset for online businesses and entrepreneurs."

Whether you read it cover to cover (thanks Mom), use it as a handy desk reference, or your Ambien isn't quite working like it used to, an ounce of CyberLaw prevention can avoid pounds of cure. As the Internet legal landscape changes, so must you. Don't venture into the Internet jungle without CyberLaw at your side.

Oh yeah, I almost forgot to mention, I wrote it . . . but don't hold that against it.


Brett Trout

Cyberlaw Brett Trout Internet Law

Free Resourse For New Online Businesses

The American Bar Association has just launched a new website for online entrepreneurs. SafeSelling.org provides tips and insight on legal issues ranging from legal structure, for which you should probably retain a knowledgeable business lawyer, to registering a domain name, which you can probably do yourself.

Although the site is a little light on patent, trademark and copyright information, next to this blog, SafeSelling.org is probably the most comprehensive resource on the internet for entrepreneurs looking to create an online presence.

Thanks to Mike Cowell for the heads up.

Brett Trout

ABA online business entrepreneur

Who Owns Your Website?

As a copyright lawyer I am often the one to tell new clients “Even though you paid for your website that does not mean you own it.” Because these clients paid money for their website, they think they own things like:

• The design of their website;


• The software code behind their website;


• Their domain name;


• The graphics on their website;


• The other content on their website;


• The terms of use and privacy policies on their websites.

Most clients think they are obtaining an “assignment” of these things when they write a check. They are shocked to learn that the people they paid to create these things actually still own them. Intellectual property laws are designed to protect the creator, to encourage the creator to create. If you hire someone to design a website for you, what you are actually purchasing is a “license” to use the design for the use intended by you and the designer.

What is the difference between a license and an assignment? With a license, you cannot usethe design for something beyond what you originally contemplated with the designer without paying additional money. With a license, you cannot sublicense the design, use it on another website or prevent the designer from licensing the exact same design to your competitor for a small fraction of what you paid.

Similar problems arise with software code, graphics, photos, terms of use policies and other content created by third parties. If you have your employees create these things as part of their job, your company the works are deemed to be “works for hire” and your company is the “author” of the works by law. You do not need an assignment, because the copyright originally vests in your company. Knowing this, seemingly knowledgeable intellectual property attorneys try to apply this theory to independent contractors by contract. The law, however, does not allow these types of website items created by independent contractors to be “works for hire” under the law.

If you want to own all of the rights in the copyright, you need to obtain a written contract, which includes and “assignment.” If you broach this subject with your website developer before you sign any contract, an assignment will often not increase the contract price. If you broach the subject after you have paid, however, the cost of an assignment may be tens of thousands of dollars.

For some items, like terms of use and privacy policies, you may not even need an assignment. You could of course pay an attorney to write a policy from scratch that he or she would never use again. Such “one-off” contracts however, would likely be ten times more expensive than having the attorney merely customize an existing policy they have in their files from which they might obtain some benefit from modifying again in the future. For most legal information on your website a license is typically much more economical than an assignment.

With regard to domain names, be sure that whomever you have register the domain name, that they register it under the name of your company rather than theirs. You might not notice the difference until the time you want to move your website to another host service and your web hosting service refuses to release the domain name they registered to themselves, rather than you.

For third party content, including pictures, graphics and charts you find on the web, it is best to avoid incorporating them into your website, even if you feel they are in the public domain or that the use is a “fair use.” Many companies have had to pay huge royalties for the use of material a third party posted online as public domain without the authorization of the true author.

One final note, keep an updated back-up of everything on your website. It is not worth a dispute with a designer or web hosting company shutting down your website during negotiations. Nothing ensures good
faith negotiations more than having your own copy of your website code.

Brett Trout

copyright cyberlaw lawyer infringement

Who Owns Your Website?

Think you own these things?

The design of your website;
The software code behind it;
Your domain name;
The graphics;
The content;
The terms of use and privacy policies.

Just because you paid for it does not mean you own it. Check out my new Internet Law post on Iowabiz.com to find out more.

Brett Trout

How Intellectual Property Can Ruin Your Business

Rush Nigut and I were speaking just the other day about how general practitioners or even transactional law attorneys often screw things up for their clients when they start messing with intellectual property issues. While they may grasp the broad issues, there are far too many trips and traps to go wandering through the IP jungle without at least a knowledgeable guide.

I then had a plate o' shrimp moment purusing Ron Coleman's informative Likelihood of Confusion blog. Apparently a couple guys at Sheppard Mullin were thinking the same thing Rush and I were. Check out the blog post The Top Ten Ways Copyright Law Can Mess Up Your Transaction. While you are at it, you might want to extrapolate those fine points regarding copyright to patent, trademark, trade secret and cyberlaw as well.

Brett Trout

copyright patent trademark trade secret intellectual property cyberlaw