Domain Name Law
When a registrant chooses a domain name, the registrant must “represent and warrant” that registering the name “will not infringe upon or otherwise violate the rights of any third party”, and agree to participate in an arbitration-like proceeding should any third party assert such a claim.
Under the Uniform Domain Name Dispute Resolution Policy (UDRP), such disputes over domain names are commonly tried before the World Intellectual Property Organization (WIPO). These include cases where one party is seeking to strip others of confusingly similar domain names that were registered in bad faith (which is also known as “cybersquatting”), or where one party is trying to hold on to a domain name that others are trying to take away.
Following the WIPO hearing, litigation in the United States may follow.
Unfair Competition / Deceptive Trade Practices
Unfair competition refers to a number of areas of law involving acts by one competitor or group of competitors which harm another in the field, and which may give rise to criminal offenses and civil causes of action. The phrase “unfair competition” covers a wide variety of unfair tactics by a business — including trademark infringement, misappropriation of trade secrets, trade libel (the spreading of false information about the quality or characteristics of a competitor’s products), and the like – that give one competitor an advantage over others.
The scope of what might be considered a deceptive trade practice is similarly broad, and generally encompasses fraud, misrepresentation, and oppressive or unconscionable acts or practices.
Actions for unfair completion and/or deceptive trade practices can be brought under both state and federal law. The remedies available for unfair competition can include damages as compensation for economic injuries as well as injunctions to order the party to cease unfair practices in the future.
- Copyright and Trademark
Somebody owns the rights to all the text, graphics, design, and images depicted on the website, and those rights must be properly transferred to the website in order for a legal publication to occur.
Unlike the copyright law safe harbor that, under certain circumstances, is afforded to website operators under the DMCA, there is no true safe harbor for website operators to avoid trademark infringement. Thus, unauthorized publication of protected trademarks, even on user-generated content sites, presents potential liability for website operators.
We can assist enforcing those rights, and defending clients accused of violating those rights.
2. Right of Privacy / Right of Publicity
Under New York Civil Rights Law § 50, “[a] person, firm, or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”
Further, under New York Civil Rights Law § 51, a person whose name, portrait, picture or voice is used for advertising or trade purposes without his or her written consent is entitled to damages for any injuries sustained because of that use. In certain cases, punitive damages may be available.
Certain statutory exemptions exist, and even in circumstances where no exemption applies, the use of the person’s name or image may be permitted if it is used in connection with an item that is informative and concerns a matter of public interest or where the name or image relates to a story of current news interest. However, this “newsworthiness exception” only applies if the item is not intentionally and substantially false. In addition to the newsworthiness exception, an exception also exists for works of art and advertising undertaken in connection with a use protected by the First Amendment.
Issues abound regarding whether the plaintiff’s depiction, name, or voice was, in fact, used, whether the use was for purposes of trade or advertising, whether the plaintiff consented to the use, or whether the plaintiff is a public figure or a participant in a newsworthy event. Further, disagreements often exist over whether the use of the name or image falls into any of statutorily exempt categories.
3. Defamation and False Light
Whereas defamation claims have to do with damage to a person’s reputation, false light claims are about damage to a person’s personal feelings or dignity. Further, false light claims have to do with the impression created rather than being about true or false. Thus, if a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading then a tort of false light might have occurred.
As with defamation, a different standard applies when the published material is in the public interest or about a public figure. Even if the published material places the public figure in a false light, the public figure must prove that the publisher acted with malice or with reckless disregard for the truth. Thus if a newspaper publishes a false allegation that a politician accepted a bribe, but never attempted to verify the allegation, it could be sued for placing the politician in a false light.
While Section 230 of the Communications Decency Act of 1996 generally provides immunity from liability to providers of interactive computer services who publish information provided by others, if you are a provider of interactive computer services, you need to know what exposure you face from user-generated content on your website, and what you may be liable for if someone makes defamatory or misleading comments using your services or technology.
In addition to everything mentioned above, many additional, and significant, legal concerns arise with adult-oriented websites, especially where the site incorporates user-generated content. The legal landscape in this area is complex and ever-changing, and the legal issues facing such website operators depend significantly on the degree to which the website operator is involved in the selection of the content displayed, the manner in which it is displayed, and the way in which the website is promoted. Additionally, adult website operators must strictly comply with The Child Protection and Obscenity Enforcement Act of 1988 (also known as “Section 2257”) and state and federal law prohibiting obscenity. Given the potentially severe penalties for noncompliance on these issues, legal representation is essential.