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Posts by Taylor Hume

DEA Sued for Creating Fake Facebook Account Using Woman’s Photos

How would you like to stumble upon a Facebook page that you did not create, and that also displayed your name and your personal photographs?  Better yet, how would you feel if that same page was created and being used by a government agency to catch criminals?

That is exactly what happened to a Sondra Arquiett in 2010 when an agent with the Drug Enforcement Agency (DEA) took it upon himself to create a fake Facebook account with the hopes of establishing contact with criminal drug dealers.  DEA agent Timothy Sinnigen admitted to creating the account and appropriating Arquiett’s likeness, according to the federal lawsuit that Arquiett filed against the DEA and agent Sinnigen in the Northern District of New York.  Arquiett had previously been arrested for drug charges in 2010, and during that time some of her personal items were seized.  One of those items was her cell phone, which contained personal and private photographs.  Sinnigen used the photographs on the fake Facebook page in order to create the impression that it had been created and was being managed by Arquiett.

The photographs, some of which contain images of Arquiett’s young son and niece, were taken and used without permission or authorization.  The complaint alleges that Arquiett was “deprived of her Constitutional rights, including her right of privacy afforded to her under the First Amendment”.  This clearly raises some concerns about privacy, and to what extent the government can use your personal information.  The Justice Department will investigate this practice and the issues it creates.

The case had been set for trial in the U.S. District Court for the Northern District of New York, however it appears now that it may head to mediation.
By Taylor Hume

CalOPPA Amendment: What “Do Not Track” Means for You

The previous iteration of the California Online Privacy Protection Act (CalOPPA) requires, among other things, that website operators who collect personally identifiable information (PII) about individuals residing in California conspicuously display a privacy policy.  Additionally, this privacy policy must identify the categories of PII that the website operator collects as well as any third party with whom the operator may share this information.  As you may recall, Delta Airlines came under fire last year for not having a privacy policy for their mobile app.

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Truevalueweb.com and Westorange.info – How to Learn from UDRP Complaints and Cease and Desist Letters

Domain name disputes are nothing new, and as a business you should be monitoring the potential use of your trademarks by those not authorized to use them.  Eventually, the unthinkable will happen and you will find out that someone is using your trademark in their domain name.  At this point you can send a cease and desist letter, pursue a Uniform Domain Name Resolution Policy “UDRP” Complaint, file a lawsuit, or do nothing.  Most folks will not want to pursue a lawsuit due to the costs involved, but at the same time won’t be ignoring this type of infringement.  That leaves you with the two most popular options, which are sending the opposing party a cease and desist letter, or filing a UDRP Complaint.

UDRP Complaints have various criteria that must be met in order for the Complainant to prevail.  Before moving forward with a complaint, you may want to ask yourself if you can satisfy the three main criteria that every Complaint must have in order to be successful.  The ICANN UDRP Policy includes these three main elements that a Complainant must prove, and they are stated within the policy as follows:

(i) your domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

(iii) your domain name has been registered and is being used in bad faith.

True Value Company recently filed a UDRP complaint against the registrant of Truevalueweb.com with the National Arbitration Forum “NAF”.  The Complainant undoubtedly has trademark rights in the mark “True Value” as evidenced from its use of the mark in connection with hardware products since 1963 and its registered trademarks and service marks.  The perplexing part of True Value’s complaint is that it claims that there is confusion in the marketplace because the Respondent is offering similar services in connection with Truevalueweb.com.  Since True Value Company is a hardware store and Truevalueweb.com offers web hosting services, I really don’t see how this is possible.  Evidently, Complainant does offer web hosting and design services to businesses that are part of its cooperative, but not to the general public.  This is certainly not the strongest argument, but an attempt nonetheless to satisfy a necessary element by illustrating consumer confusion.

The Complainant also argues that the Respondent’s website uses the same color scheme in an attempt to confuse people and make them believe that Respondent is in some way affiliated with Complainant’s business.  A simple glance at the two websites is all you will need to conclude that this an odd claim.  The folks over at domainnamewire.com have done an excellent job illustrating the oddity of Complainant’s assertions in their article, and I urge you to look at the screenshots that they provided.  The final decision from the NAF, published here, references the three criteria I inserted above.  The NAF decided that Complainant provided enough evidence to satisfy criterion number 1 above, but that it did not prove that Respondent had no rights or legitimate interests in the disputed domain name.  Not being able to satisfy the second criterion, analyzing the third was not necessary.

If you do not want to pursue a UDRP Complaint, perhaps a cease and desist letter is better suited for your needs.  This is a less formal option, but is certainly something to be taken seriously.  If you are considering this approach then it may be worthwhile to review this rather humorous story about a New Jersey Township attorney’s letter to a citizen of West Orange, NJ, who is the owner of Westorange.info.  Cease and desist letters should not be issued lightly, and diligent research is a key element to preparing a good one.  In this situation, the West Orange Township attorney, Richard D. Trenk, issued the letter to a citizen who had registered a domain name that included the township’s name with the accompaniment of the “.info” domain extension.  After reviewing the site, it is blatantly clear that there could be no confusion as to whether the site was affiliated with the official government website located at westorange.org.  With that being said, the cease and desist letter was clearly not well thought out or planned.  If you have a few minutes, and are up for a good laugh, then I encourage you to read the entire uproxx.com article referenced above including pro bono counsel’s response to West Orange Township attorney, Richard D. Trenk.

It is important for every business to police its trademarks to the extent possible, and this may involve sending cease and desist letters and filing UDRP complaints when necessary.  If you are thinking of taking action, make sure that the necessary elements are in place prior to jumping the gun.  If you have any questions about this, please feel free to contact one of our Internet attorneys.

By Taylor Hume

Gerry Rogers Removed From Assembly – The Dark Side of Social Media

I was perusing Techdirt, as I often do, and read a story I simply couldn’t  ignore about a Canadian politician who was removed from assembly for something that she simply did not do.  Gerry Rogers, a member of the Newfoundland and Labrador House of Assembly, was removed from Assembly when it was learned that she was part of a Facebook group targeting Premier Kathy Dunderdale called “Kathy Dunderdale must GO!!!”.  The group page evidently contained death threats regarding Dunderdale.  Rogers denied joining this group, saying that she was added to the group without her knowledge.

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FTC Amends Children’s Online Privacy Protection Rule (COPPA)

For those of you not familiar with COPPA, the FTC passed the act in 1998 and it is designed to help protect the personally identifiable information of Internet users under the age of 13 and gives parents control over the information companies collect online from their children.  COPPA specifically applies to websites targeting children, but essentially applies to any site that a child could use that collects personally identifiable information.  The FTC is concerned with children’s privacy now more than ever with the increased use of social media and smartphone apps that use features such as geolocation.

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Gun Violence Takes Center Stage: Armslist.com Sued Regarding Wrongful Death of Jitka Vesel

Just prior to the deadly school massacre in Newtown, CT last week, the Brady Center To Prevent Gun Violence filed a lawsuit in the Circuit Court of Cook County, Illinois against Armslist, LLC, the owner of Armslist.com, on December 12, 2012.  Attorneys for The Brady Center assert that Armslist.com played a large part in the death of Jitka Vesel, as the gun used to kill her was purchased through the website by her stalker.  According to the Brady Center, the sale of the gun was illegal and the seller pleaded guilty to felony sale of a firearm to an out of state customer.  The Brady Center also mentioned that the website did nothing to stop the sale of firearms to consumers in different states, because it allowed users to view classified listings in all fifty states.

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California Attorney General Sues Delta Airlines for Not Having a Privacy Policy for Mobile App

Not having a privacy policy could be a problem, especially if you collect personally identifiable information from users located in California.  Delta Airlines is learning this tip the hard way.  Kamala Harris, the California Attorney General, filed a complaint in state court last week against Delta Airlines for not adhering with California state law. The state law at issue is the California Online Privacy Protection Act, which requires a website that collects personally identifiable information about individual consumers residing in California to conspicuously display a privacy policy.

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Affiliate Marketers and Affiliate Marketing Companies are Gearing up for Black Friday

The holidays are right around the corner if you can believe it.  With that said, retailers are preparing for another Black Friday.  While the big name stores are getting ready for the onslaught of consumers both in the store on Black Friday and online on Cyber Monday, they aren’t the only ones getting ready for the holiday season.

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