SMX West Session Notes: Legally Speaking

Follow me on Twitter for micro updates: @atraine. Legally Speaking: Recent Legal News About Search – What’s up with legal issues and search engines? That’s what this session is about – filling you in on the always changing developments. From click fraud to copyright to privacy, this session will hit all the major areas that are seeing legal action. Sit back – court is in session! Moderator: Sarah Bird, General Counsel,, Inc. Q&A Moderator: Barry Smyth, Director, Search Strategies Speakers: Travis Crabtree, Member, Looper Reed & McGraw, P.C. Eric Goldman, Professor, Santa Clara University School of Law David Mink, Chief Legal Counsel for Dream Systems Media, Dream Systems Media
Travis Crabtree Speaking at SMX
Travis Crabtree Speaking at SMX
Clarke Walton, Attorney-at-Law, Walton Law Firm NOTES: Travis Crabtree, Member, Looper Reed & McGraw, P.C. Topic: Trademark Law for Internet Marketing To infringe you need to use their trademark in commerce.  That means in connection with a sale. Consumer Confusion Factors:
  1. The strength of the mark.
  2. The proximity of the goods.
  3. The similarity of the marks.
  4. Evidence of actual confusion.
Cases Reviewed:
  1. Brooks vs. Field
  2. Google vs. American Blinds Keywords Case
    1. Use is a factor within keyword purchasing ads that shows use pursuant to pushing the case to trial.
  3. 1-800-Contacts case
  4. Geico vs. Google
  5. Izitron Case (not sure on spelling)
The European stance on trademark infrigement dealing with internet law is much stronger.  They take much more action over seas. Interesting case that has recently come about is American Airlines vs. Google.  Google settled outside of court with confidential terms.  American Airlines just filed against Yahoo as well and this case is still pending in the 5th circuit in California. David Mink, Chief Legal Counsel for Dream Systems Media, Dream Systems Media Topic: Developments in Privacy Law Hypothetical: your employee loses their laptop on the way home from a business trip to Boston in 2010.  What do you do now?
David Mink speaking at SMX
David Mink, CLO Dream Systems Media, speaking at SMX
The answer will probably depend on how cavalier this employee was: did they encrypt their laptop, did they use a password, is the file encrypted? Legal Problems:
  1. Over 40 states now have security breach statutes?
  2. Mass. law makes it illegal to store data that is not encrypted, has to be sensitive personal information.
What is sensitive personal information (SPI): This is a persons name associated with other personal information such as their social security number, credit card number, etc. Mass. Law has many stipulations you must follow to be ensured safety from law.  The law is long.  Dave gave some synopsis, but asked that you review the law. So what happens if you break the law: nobody really knows because there is no case decisions on this to date.  Most likely the real risk will be a fine and damage to your company brand and image.
“It takes many good deeds to build a good reputation, and only one bad one to lose it.” Benjamin Franklin.
Privacy is a really hot topic right now and focusing on protecting identity theft is a major focus from a government level right now.  Mass. law, Nevada law, etc.  There is a new Gov. agency dedicated to specifically this and overseeing the transfer of SPI. Clarke Walton, Attorney-at-Law, Walton Law Firm Topic: ICANN Updates for 2009 and New GTLDs
Clarke Walton Speaking at SMX
Clarke Walton Speaking at SMX
What is a GTLD: Generic Top Level Domain Includes: .com, .net, .org, .edu, .cat, .biz, .info, .asia, .post, etc.  These are different than country code TLDs.  Possible new GTLDs could include: .hotel, .law, .sex, .vegas, .nyc, .google, .ebay, .facebook, etc. How to get a new GTLD going for you or your company, as ICANN is now opening the process to get approved for a GTLD.  ICANN is creating an application process.  This will be opening up during the last quarter of 2009. Interesting Issues:
  1. Applicant has to show community support to get it.
  2. Morality + Public Order…is .sex going to be ok?
  3. Possible relaxation of registrar/registry relationship.
  4. Same entity ownership may be allowed for new GTLDs.
  5. Is there a possibility of trademark infriction when you apply for your GTLD.  There will be costs associated with that, like if Yahoo applies for a .google then Google has to object and bear the costs of that objection.
This possible objection process is being referred to as the ICANN Stimulus Plan.  The application fee is $185,000.  You pay annual fees of $75,000 and/or 5% of revenue.  You must have insurance and financial reserves to show you can carry the domain for years ongoing if your business fails.  Cost for application is estimated to be around 1mm all said and done. Question and Answer Period Q: What will prevent merchants from creating denyability by stating, it wasn’t us doing that, it was our affiliate? A: Will depend on the statute in place in that location and it’s obviously not that easy to just say, hey it wasn’t us and if the affiliate is no longer in business or doesn’t have any money, then they will go off the advertiser. Q: Does Mass. Law apply to portable back up drives, etc. A: As long as the device is portable, you need to encrypt is as the statute language specifies devices that are portable.