Monthly Archives: November 2012

Libya Loses Cybersquatting Lawsuit

domain dispute lawyer
Libya lost a cybersquatting lawsuit against an online marketer.

The country of Libya lost a cybersquatting lawsuit against Ahmad Miski. In November 2006, the Embassy of Libya filed a lawsuit with the United States District Court against Ahmad Miski for online trademark violations. Their position was that Miski violated the Anti-Cybersquatting Consumer Protection Act when he created a series of domain names, including embassyoflibya.org, libyaembassy.org, libyaembassy.com and libyanembassy.com.

Miski owns an Arab-American Chamber of Commerce that helps people get documents certified – a service not offered by the Arab Embassy. Miski employs a common Internet marketing tactic; he registers domain names and redirects users to his website called arabchamber.com – a practice, he says, that significantly increased his website’s Internet search rankings.

According to the Anti-Cybersquatting Consumer Protection Act, the trademark owner has to prove they posses a lawful trademark. In this case, the Embassy of Libya had to prove that the defendant unlawfully used a name with the intent to profit. Although they had no registered trademark, the Libyan Embassy used the Lanham Act to dispute the matter. The Lanham Act states that some unregistered trademarks are protected by the Anti-Cybersquatting Consumer Protection Act.

After the bench trial, the verdict was in favor of Ahmad Miski. The court decided the Libyan Embassy had no trademark rights when it came to the domain names in question. Libya was unable to prove that the Lanham Act should protect their trademark. Since people think of a physical location when they hear about the Embassy of Libya, it is not considered a brand or product. Plus, their consular services are different from Miski’s certification services. In the end, the court ruled that none of Miski’s domain names violated the Anti-Cybersquatting Consumer Protection Act.

As Miski’s lawyer explained, his choice of domain names did not infringe on anyone’s rights. Miski only uses the descriptive domain names as an effective marketing tool. It is an embassy’s job to legalize documents. While Miski is unable to legalize documents, he uses third party businesses to have documents legalized by embassies across the Arab world. For that reason, the plaintiff is not a direct competitor of the defendant.

Full bench trials are rare in cybersquatting court cases; however, the lawsuit did make it to trial. The district court judge ruled in favor of the defendant. Since the Libyan Embassy failed to prove that it has trademark rights, Ahmad Miski gets to retain control of his domain names.

The Question Of Defamation Negligence

Blogger Crystal Cox has been battling a serious online defamation lawsuit for over a year. In short, her case involves derogatory statements about Obsidian Finance and one of the company’s executives, Kevin Padrick, whom she called “a theif and a thug” on her blog. After losing at trial, Cox was ordered to pay millions. She is now appealing the case and some heavy weight legal minds are helping. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of Cox, and Eugene Volokh, a UCLA professor, is now serving as Cox’s attorney and appealing her case to the 9th Circuit Court. Her appeal, it appears, centers around the concept of defamation negligence.

In the original case, Judge Marco Hernandez dismissed several of the charges argued in the claim. The legal definition of defamation is very specific, and as such statements of opinion are often dismissed immediately. In the Crystal Cox defamation lawsuit, by the time the trial rolled around, only a couple of counts of libel still stood.

Before the jury went into deliberations, Judge Hernandez gave his instructions. According to accounts, he failed to instruct the jury to consider the element of negligence. In United States defamation law, negligence plays an important role. If the plaintiff is a public figure, they must prove that the defendant acted with malicious intent; if the plaintiff is a private citizen, then the claimant only has to prove that a reasonable person would not have posted the material in question. In other words, people in the public must meet a higher standard of proof when filing a defamation lawsuit. This was done to ensure that those in power did not hinder free speech via the use of strategic lawsuits.

In their friend-of-the-court brief, the Reporters Committee for Freedom of the Press explained:

“The determination of whether a particular person qualifies for…protections cannot be based on what a journalist’s job traditionally has been; rather, any test must be closely matched to the constitutionally protected function journalists perform.”

Basically, the committee is saying that Cox was performing as a journalist, had sufficiently checked her sources, and then and only then published the story. As such, she should not be held liable for defamation. In Volokh’s appeal, he argues that since the jury was not given explicit instructions on “defamation negligence” the ruling should be overturned. Both parties are essentially arguing that since Cox reasonably believed the statement to be true, they were not defamatory. Inaccurate? Sure. Defamatory? Not unless Cox had substantial reason to believe the statements were false and published them anyway.

Defamation negligence is just one nuance of U.S. slander and libel law. If you’re interested in learning more about defamation law in the United States, check out our one-stop-shop legal resource center.

Source:
http://www.mediapost.com/publications/article/187233/blogger-gets-high-profile-support-in-libel-appeal.html#ixzz2CKgt2OM8

UK Politicians Looking To Stomp Out Twitter Defamation

UK Defamation Law ReformYet another European media scandal is making defamation headlines. This time, the scandal involves television program Newsnight, Tory politician Lord McAlpine and accusations of pedophilia. The story “broke” on Twitter – and now parliamentarians are calling for stronger online libel laws. Specifically, authorities want to make clear that Twitter defamation is the same as libel in a newspaper.

The Scandal: Politicians, Pedophilia and Resignations

In one of the biggest media blunders of the decade, A recent Newsnight piece mistakenly implicated Lord McAlpine of molesting a teenage orphan, Steven Messham, nearly 20 years ago. When the story broke, McAlpine’s reputation immediately plummeted. People were shocked! Outraged!

After a little investigating, the truth was revealed: Messham was mistaken. It wasn’t McAlpine who’d abused him years earlier. Presumably embarrassed by the incident, George Entwistle, the Director General of the BBC, resigned.

Include Social Media In Defamation Reform Efforts!

Justice Secretary Chris Grayling was outspoken about the Twitter defamation implications of the McAlpine scandal. In a statement, the parliamentarian urged lawmakers to punish Facebook and Twitter defamation as harshly as newspaper libel.

“At the moment you have got this situation where newspapers are rightly constrained by libel and defamation laws,” began Grayling, “but people are linking to the stories through the Internet and spreading vile and heinous lies about people, who have no right of redress.” He continued, “We are going to have to bring Facebook and Twitter under the same laws as libels committed by newspapers or television channels.”

In his address, Grayling also urged Lord Justice Leveson to touch on the issue of Facebook and Twitter defamation in his scheduled December report on libel reform.

Plaintiff Friendly Defamation Laws In The UK

The United Kingdom has always been known as “the” place to file a libel lawsuit. Their defamation statutes, like many commonwealth countries, are amongst the most plaintiff-friendly in the world. Why is that? Well, to put it bluntly, reputation is often tantamount to free speech in the Queen’s lands.

Unlike defamation laws in the United States, plaintiff’s, for the most part, don’t have to prove actual malice. Meaning, they don’t have to provide evidence that demonstrates the plaintiff’s true impetuous was to harm the defendant. Moreover, the way in which current UK defamation laws are written makes it very easy for defendants to claim that they were in some way harmed by the material in question.

To learn more about slander and libel laws from around the world, visit the International Defamation Law Database. If you need a defamation lawyer who is well-versed in international and Twitter defamation law, contact Kelly/Warner Law today.

Biz Opp Alert: The FTC Is Watching

Federal Trade Commission Logo
Federal Trade Commission Logo

The nation’s consumer protection agency is actively enforcing their new Biz Opp rules. On October 31, 2012, the Federal Trade Commission, in conjunction with other federal task forces, the U.S. Postal Inspection Service and Attorneys General in Arizona, Colorado, California and Indiana filed 108 new legal actions against Biz Opp companies that authorities allege are unfairly scamming would-be entrepreneurs.

Operation Lost Opportunity: The FTC’s Latest Crackdown On Biz Opps

With a 3-0-2 vote, the FTC put operation lost opportunity into action. Seventy civilian actions and 38 criminal actions were filed in the District Court for the Southern District of Florida against a slew of companies offering “be your own boss” prospects. Specifically, a group of companies that offer mystery shopping, credit card processing, website operation, and government insurance refund processing opportunities are being charged with violating various consumer protection rules.

Authority Operation Lost Opportunity Involvement
Department of Justice 22 actions filed
Attorneys General IN, CA, AZ, CO Combined 20 actions filed
U.S. Postal Inspection Service 15 administrative actions filed
Working Group of the Financial Fraud Enforcement Task Force Coordination and 51 actions filed

What Are The New Biz Opp Rules, Anyway?

The companies caught up in this imbroglio are primarily being accused of misrepresenting the amount of money potential buyers can make – a clear violation of Article 5 of the FTC Act and the Telemarketing Sales Rule. Several of the defendants also engaged in negative-option billing – a big FTC no-no, especially for Biz Opps. Noncompliance with the new 7-day disclosure statement rule seems to be another issue in this FTC sweep.

Perhaps the most egregious violations of the lot, though, were the double-blind enrollment schemes. Several companies caught up in this sting enrolled customers in two programs at once; when the client canceled their subscription, they’d still be charged the following month. When they inquired as to why they were still being charged, only then did they find out they were enrolled in both programs.

All of the above violations are mentioned in the new Biz Opp rules released by the FTC earlier this year. If you have not yet reviewed the updated statutes, be sure to catch up here.

Temporary Restraining Order Issued To Companies Being Investigated

In brief, a temporary restraining order is a legal action that constrains a party to refrain from a given activity or compels them to engage in an activity. In the context of litigation, temporary restraining orders are essentially stop-gap actions used in the period before an injunction hearing. TROs are decisions made by a single judge and cannot be overturned.

On October 31, 2012 a court issued TRO was executed; it halted activity, froze assets and put the targeted companies in a temporary receivership.

Need A Biz Opp Lawyer?

The FTC gave notice that they plan to pay close attention to Payday lending websites, Internet schemes, and EDU scams in the near future. So, if you’re an affiliate or online marketer being investigated by the FTC and you need of a lawyer, contact Kelly / Warner Law. We’re not just attorneys, but also affiliate marketers. We understand the business, in addition to the nuances of Internet marketing law and compliance.