New Media Rights’ final DMCA Anti-circumvention comments encourage the Copyright Office to protect fair use for all filmmakers

Today, New Media Rights submitted our final set of comments supporting exemptions that allow filmmakers to bypass encryption and technical protections measures for purposes of making fair use.

Specifically, following testimony in May, the Copyright Office requested definitions of a variety of terms including documentary, documentary-like, non-fiction, fictional, scripted, biopic, “inspired by,” imaginative, and “totally fiction” that were used in the proceeding.

In our responses to the Copyright Office's request, we draw on the work of film scholars to explain that genre distinctions are not easily made, and that an exemption for all filmmakers is the best way to proceed.  You can read our latest filing here, and check out the entire proceeding on the Copyright Office's website.

You can see our more extensive earlier comments, supporting exemptions for remix creators, smartphone consumes, and filmmakers, here.  New Media Rights wants to thank fantastic interns Emory Roane and Patrick McManus for their work on this proceeding.
 

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California Western School of Law students help filmmaker on a mission to help end harassment in the gaming community.

Long before Gamergate, a very public display of sexual harassment prompted filmmaker Shannon Sun-Higginson to explore the female experience within the gaming community. Through interviews with video game developers, journalists, and academics, GTFO [The Movie] paints a complex picture of the community as segments of it attempt to evolve to attract a diverse new gaming community against a backdrop of continued misogyny and harassment.

California Western School of Law students Christine Brekke (’15), Irene Choe (’16) and Nick Sabatella (’16) all provided critical preventive legal services to help GTFO [The Movie] thrive. New Media Rights Staff Attorney Teri Karobonik had the following to say:

“The meticulous work of Christine, Irene and Nick helped take GTFO from rough cut all the way to distribution.  It also gave our students a chance to apply their legal knowledge in the context of an ongoing debate, breathing new life into classic legal concepts and helping our students become practice ready.”

For your chance to engage with this ongoing debate check out GTFO[The Movie], now available for rental or purchase on iTunes, Vimeo, BitTorrent, Google Play, Xbox, Playstation, and Vudu.

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California Western law student helps launch new veteran's radio show, "Incoming: Stories of Veterans told in their own words"

San Diego’s KPBS and preeminent literary & performing arts nonprofit, So Say We All, just launched a new radio show called Incoming: Stories of Veterans told in their own words.  It is a powerful, diverse set of stories where veteran’s tell own their stories..  You can hear the entire new series here on KPBS as well as Soundcloud.  The program also features music composed and performed by local San Diego musicians.

California Western School of Law and New Media Rights program student (and now graduate!), Ella Ahn, provided the legal services that made this series happen.  Behind every great production, there are many contracts that need to be drafted and reviewed.  When done right, these contracts help make sure the collaboration goes smoothly between and project gets completed.
New Media Rights Executive Director Art Neill had the following to say. 

“Ella’s work with So Say We All was an important piece to making sure the series didn’t just get off the ground, but can soar.  Her work enabled the partners in the series to collaborate smoothly, and will help the series achieve a broad distribution to audiences everywhere.”

Congratulations to Ella, So Say We All, and the entire Incoming team on this successful endeavor!

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Testify! Why anti-circumvention exemptions are important for ALL filmmakers

Filmmakers who want to reuse the culture around them for commentary and criticism need to understand fair use, but that's not the only legal issue they have to worry about. Even if their use is a fair use, the DMCA Anti-Circumvention provisions make it illegal just to bypass any encryption (also known as Digital Rights Management (DRM) or Technological Protection Measures (TPM)) that restricts access to that content.

This is exactly as ridiculous as it sounds.  Simply accessing content to make a fair use can still be illegal under federal law, even when there is no copyright infringement!

Every 3 years, the Copyright Office considers exemptions to these anti-circumvention provisions.  The process is highly problematic, but right now its the only way to provide any relief from this overreaching law that's been on the books since 1998. This year we submitted comments on three important exemptions (regarding installing software of your choice on your devices, as well as your right to reuse video content under fair use).

On Wednesday May 20, we testified regarding Class 6, which is all about allowing filmmakers to bypass encryption on DVDs, Blu Ray discs, and online sources, to make use of content under fair use.  

We want to thank California Western law students Emory Roane and Patrick McManus for their great work helping prepare comments and testimony in this proceeding.  Executive Director Art Neill and Emory Roane are pictured below along with other proponents of Class 6, including Jack Lerner, Aaron Benmark, and Rahul Sajnani, of the UC Irvine Intellectual Property, Arts, Technology Clinic, Christopher Perez of Donaldson + Callif, and Gordon Quinn and Jim Morrissette, of Kartemquin Educational Films.

The proposed class 6 is described as follows

“Audiovisual works that are lawfully made and acquired from DVDs protected by Content Scramble System, or, if the work is not reasonably available in sufficient audiovisual quality on DVD, then from Blu-Ray discs protected by Advanced Access Content System, or, if the work is not reasonably available in sufficient audiovisual quality on DVD or Blu-Ray, then from digitally transmitted video protected by encryption measures when the circumvention is accomplished solely in order to incorporate portions of motion pictures into new works for the purpose of fair use in filmmaking."

In our testimony May 20, we focused on key areas where we are requesting modest improvements, including Blu-Ray discs as well as non-documentary filmmaking.

Regarding access to Blu Ray discs

The record in this proceeding establishes that 4k and ultraHD video standards have arrived. The quality of content on current Blu Ray discs, at 1080p HD,  is now often the minimum distribution and broadcast standard.

We can support this from our direct experience.  New Media Rights attorneys regularly review and negotiate distribution contracts for filmmakers, including domestic and international distributors.  In the last 3 years we’ve seen the standards rise for distributors, and for audiences, across the board.

Indeed, even when a filmmaker is offered a modest distribution contract, distributor requirements regarding reprocessing and uprezzing of footage, and editing of content, which can heap additional costs on projects that are already in the red, sometimes demanding significant portions of the licensing fee just to meet distributor technical standards. Access to Blu Ray ensures that filmmakers are relegated

If the the current exemption, which is just for just DVD's and online sources, is simply continued and not updated for modern filmmaking in 2015, the practical effect is to relegate filmmakers to degraded footage and diminished options for distribution channels.

All filmmaking purposes should be exempt, not just "documentary"

A. Drawing bright lines between types of filmmaking is difficult 

The record itself seems to show implicit disagreement about what to call non-documentary film... "narrative"? "fictional"? Its difficult to understand why the Copyright Office would entertain the task of drawing lines based on such difficult distinctions. 

The record also displays some question regarding what constitutes documentary filmmaking itself, and whether biopics should be included in that definition, particularly in the DVD CCA (the DVD copy protection folks) comments on pages 14-15.

Biopics in particular are great examples of works that incorporate both nonfiction and fictional elements, and suggest that drawing lines within filmmaking creates additional confusing standards,  

We testifed about our work with countless filmmakers who distribute using online distribution like Youtube and Vimeo that would not describe their work using the terms fictional, narrative, or documentary filmmaking, yet they certainly make fair use of works and deserve to access those works as much as any other artist.

Regardless, there are many examples  provided by proponents of non-documentary films that utilize content in fair use. Filmmakers who make non-documentary film can produce highly transformative films, so they should be able to circumvent TPMs regardless of what genre their films fall under.

B. Opponents focus on the idea that films with fictional content are “typically entertainment” does not obviate the need to protect all filmmakers rights’ circumvent for purposes of fair use

Opponents AACS LA  (Blu Ray) and DVD CCA (DVDs), wrote, borrowing a quote from the 2012 Section 1201 Rulemaking: Recommendation of the Register of Copyrights that “‘the purpose of a fictional film is typically entertainment.’”   The record shows otherwise. 

In fact, whether or not fictional films are “typically” entertainment is irrelevant to whether an exemption fictional filmmakers should exist. Even the use of the word “typically,” rather than a word like “always,” acknowledges that there are other purposes to fictional filmmaking, and as proponents discussed in the record, the standard for granting exemptions is whether there are likely to be noninfringing uses. 9 Whether a film entertains the audience should not matter for these exemptions, and the Copyright Office should acknowledge that it is a challenging position to draw lines between where nonfiction ends and fiction begins. The Copyright Office should also acknowledge the challenge in drawing lines based on types or genres of films, and focus on making sure fair uses will be exempt from liability.

Conclusion

In addition to focusing on the points above, we asked the Copyright Office as they hear the testimony, look at the record, and weigh the harms alleged by the parties, to keep in mind the following.

1. Remember, the proposed exemption ONLY permits uses covered by fair use.  If the use is not a fair use then anti-circumvention & copyright infringement claims persist. 

2. Remember, that if copyright holder does not provide a license for footage, and that footage is behind a TPM, the footage is removed from public discourse. (Fundamentally copyright law is about providing a limited monopoly to copyright owners so that they create more works.  That fundamental purpose is unaffected here, so providing a limited monopoly to copyright owners.)

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9th Circuit reaffirms the denial of a dangerous preliminary injunction in the case of Garcia v Google

In November, New Media Rights joined the Electronic Frontier Foundation, Public Knowledge, and others in filing an amicus brief urging the 9th Circuit to reaffirm the district court’s denial of a dangerous injunction that forced Google to take down the controversial "Innocence of Muslims" video based on a severe misapplication of law. Monday, the court did just that.

This decision is particularly good news for the filmmakers whom we work with, but it comes too late for some. In the 453 days the injunction against "Innocence of Muslims" was in place, we worked with several filmmakers threatened by actors that were unsatisfied with the final version of the film they acted in. In each of these cases, the actor relied on Garcia’s misapplication of copyright law in an attempt to remove otherwise entirely lawful content.

In the 453 days the injunction was in place it also became clearer that the current legal infrastructure to help filmmakers find the affordable legal services they need to thrive is woefully inadequate. All of the cases we encountered could have been prevented by an actor agreement or other crew release that took into account the legal uncertainty Garcia created by including a tailored copyright assignment clause. While the majority of the filmmakers we encountered did have written contracts; they relied on out of date form contracts that failed to account for the copyright in their actors performances since that right did not exist before the Appeal Courts prior ruling in Garcia.

While Mondays decision was a victory for free expression and copyright law, to ensure a world where expression is truly free we need to ensure all creators have access to the key legal infrastructure they need to create and thrive. In a world where heart wrenchingly bad facts make bad law it’s a matter of when not if the next major decision negatively affecting free expression occurs and we need to make sure creators are prepared to proactively deal with these decisions.

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May newsletter: The legal issues today’s journalists, creators, and entrepreneurs share

The legal issues today’s Journalists, Creators, and Entrepreneurs share
In our 9 year history providing legal services on over 1400 individual matters, we’ve tracked a significant convergence in the legal needs of journalists, creators and entrepreneurs. This convergence is the result of the rise in the importance of nonprofit and independent projects and the common use of the internet as the means of distribution. As a result, a common set of core legal issues has emerged among journalists, creators, and early stage tech entrepreneurs.  Click here to check out the top 10 legal issues these groups share, and to learn about ways you can help us meet the growing demand for legal services.
Become a Organizational Supporter!
If you or your organization are already a Supporter, you know the benefits it brings, and and the tremendous impact you make.  If you aren't a Supporter already, what are you waiting for?  Check out the benefits of being a Supporter here.
 
Year Round Clinic for CWSL students!
We're proud to announce that our Internet & Media Law Clinic will now be offered year round at California Western School of Law!  The clinic provides students with experience working one-on-one with Internet & Media law clients in the field, as well as knowledge and skills regarding regulatory and policy work, scholarship, and public education and outreach. This year, clinic students will help us reach a milestone of providing services on our 1400th matter. We remain an independently funded program, so we also want to thank our individual supporters and foundations that allow us to assist clients and train students.
Applications are now open for fall, and close on June 9th!
 

FCC Cites NMR  in Open Internet Order!

If you read or skimmed through the FCC's new Open Internet Order, you might have noticed New Media Rights' comments to the proceeding are directly mentioned a couple of times.

In fact, the FCC cites our comments along with those of some other groups as support for the idea that "the same no-blocking rule should apply to both fixed and mobile broadband Internet access services." (page 50, cite 263) Meaning no matter how you access content, service providers won't be able to block content from getting to you!  Since wireless devices weren't previously included in net neutrality rules in 2010, this is a big win in the new rules! Recent lawsuits challenging the FCC's Title II reclassification of broadband Internet underscore that fight for net neutrality is not over, and the we must now defend the

Recent Events

  • May 7th NMR Executive Director Art Neill gave a workshop to over 70 individuals on Copyright 101 for Media Makers at San Diego City College. This event was made possible by San Diego City College and The City of San Diego Economic Development Department.  Thanks to Professor and NMR Advisory Board member Cy Kuckenbaker for working with us to organize the event!
  • May 14th  Hyperlocal social platforms, like Yik Yack and Whisper, are hot right now. But when things turn ugly, or they get into the wrong hands, whose responsibility is it? Staff Attorney Teri Karobonik joined a panel of other experts to discuss these issues and more at CyberHive's StartUp Breakfast; Unintended Consequences:  Who is responsible when hyperlocal social apps get in the wrong hands?

Quick Bytes

This work by New Media Rights is licensed under a Creative Commons Attribution 4.0 International License.

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The top 10 legal issues today’s Journalists, Creators, and Entrepreneurs share

“For too many journalists, one lawsuit could bankrupt them or their newsroom.” -Josh Stearns, GR Dodge Foundation
 

Photo credit: "A Bridge to Nowhere" by Paolo Crosetto on Flickr, used via Creative Commons Attribution-ShareAlike 2.0 license

In our 9 year history providing legal services on over 1400 individual matters, we’ve tracked a significant convergence in the legal needs of journalists, creators and entrepreneurs. This convergence is the result of the rise in the importance of nonprofit and independent projects and the common use of the internet as the means of distribution. As a result, a common set of core legal issues has emerged among journalists, creators, and early stage tech entrepreneurs.  We share the top 10 areas of convergence below.

Right now, to help meet this need, we’re leading efforts to revitalize and grow the Online Media Legal Network.  Once based at the Berkman Center, it represented the kind of geographic and expertise diversity that’s necessary for these projects to flourish. The disappearance of this network, as well as other support projects like the Stanford Fair Use project, has been a step back in critical support services.But as much as we value a good list, this is not an academic exercise. The reality is that these areas of convergence represent a huge unmet need for legal services desperately in need of effective infrastructure to help a wide variety of independent media and creator projects find the affordable legal services they need grow.

We’re looking to revitalize and grow the OMLN, which will also help us better address the 400-500 legal requests we receive each year. This is just one way to begin to address the common legal issues we outline below. 

Top legal issues that today’s journalists, creators, and entrepreneurs have in common.

10. Defamation, Privacy, and Accuracy of Information – The best independent journalism projects, bloggers, filmmakers, early stage nonprofits, and artists share work that shines a light onto the practices of the most powerful individuals, businesses and governments in our world. But shining this light requires being accurate with the information that is published online, and compliance with a web of state and federal privacy laws. Without the services of an in-house legal department to do a pre-publication review, and often without an entity as a shield, many assume enormous personal legal liability when they share controversial work. Dealing with defamation and privacy issues before a work is published, and having somewhere to turn when disputes arise can help make sure a project doesn’t die on the vine. 

9. Access to public records – Journalists need access to public records, but so do documentary filmmakers, researchers, historians, archivists, and a variety of entrepreneurs and nonprofits trying to take raw data and turn it into actionable information.  Accessing this information requires untangling a complex web of state and federal law.  With the help of an attorney not only can navigating this web be a bit easier but in the common case where a lawful request was denied; an attorney can bring formal litigation to ensure the release of records.

8. Recording laws – When can you audio or video record someone secretly? When do you need a release? Then, once you make your recording, how are you able to reuse that recording and the image of any individuals?  Photos, video, and audio are the preeminent multimedia of our day, so knowing the rules around their creation and dissemination has become critical to everyone who shares multimedia online.   This is typically state law which means multiple lawyers may need to be consulted about laws in different states. Without an effective network creators can plug into for advice, all too often they “wing it”, only to end up running into expensive legal problems later.

7. Responding to illegitimate takedowns – We rely on a private intermediary services to share content with each other such as websites, apps, and webhosts.  Unfortunately, bogus content takedowns often falsely rely on copyright, trademark, and a variety of abusive terms of use violation claims.  Many intermediary services will quickly remove content to avoid liability. Navigating each service’s appeals process, and making the legal arguments to get your otherwise legal content restored is not always easy.  Negotiating with service providers and claimants to restore legitimate content often takes an experienced attorney explaining the user’s legal position.  Without that assistance, in addition to content removal and the risk of related lawsuits, a key consequence of takedowns is that a user can have their account permanently terminated, silencing their voice.

6. Reducing liability as an intermediary – Acting as an intermediary for user generated content; even with legal shields available to protect services from the illegal behavior of their users can be a tricky an expensive process. While some safe harbors, such as the Communications Decency Act section 230 Immunity are more automatic, complying with  the Digital Millennium Copyright and state privacy laws often requires the assistance of a local specialized attorney to draft key documents such as terms of use and privacy policies but also to provide practical counsel on how to process DMCA notices.  Without this help it is often a question of when and not if services will face business ending litigation. Without a network of skilled attorneys to reach out to not only are services unable to find attorneys in the first place, but they are also unable to find litigation counsel to assist them when things go wrong.

5. How to properly work with independent contractors and employees – Many early stage projects rely on independent contractors.  A well drafted contract sets the expectations with independent contractor, including who owns what the contractor creates, how much and when they’ll be paid, and what exactly the contractor will be doing.  As any journalism, creative, or tech startup grows, more folks become employees, and the patchwork of many state specific employment related laws kicks in. This is another area where individuals and early stage entities will often “hope for the best” instead of seeking out legal counsel due to cost.

4. Intellectual Property and Licensing – Today’s independent artists, filmmakers, and journalists are plugging in to existing distribution channels, accessing audiences and sustaining their work through licensing deals.  Understanding how intellectual property law works, particularly copyright and trademark law, is one way that today’s journalists, creators, and entrepreneurs sustain and grow their work.  The Knight Foundation, in its report Gaining Ground: How nonprofit news ventures seek sustainability, recently noted that early stage nonprofit journalism projects appear to focus primarily on content production until they reach a budget of $500,000, where the larger portion of budgets start to go marketing, development, and technology expenses.  We can confirm this experience on the ground.  Many of our most successful nonprofit journalism clients, as well as creative clients like filmmakers, understand that one of their most important assets is their intellectual property, but they aren’t always experts in contracts or licensing.  Attorneys can help make sure that the deal presented in a contract actually reflects the client understanding and is appropriate given their business model.

3. Forming an entity – The proliferation of smaller entities and individual journalism and creative projects leads those projects to ask the same questions startup entrepreneurs must ask. Setting up your entity sets the tone for the entire organization, and mistakes at this stage are costly. While some DIY services for business formation exist, we’ve seen many businesses that made critical mistakes using DIY services at this critical early stage. Correcting these errors can be more expensive than getting proper legal counseling the first time.

2. Review & drafting of many, many types of contracts – In addition to licensing and employment contracts discussed above, journalists, creators, and tech startups share the need for review and drafting of many types of contracts. This includes insurance contracts, foundation and government contracting agreements, fiscal sponsorships (when projects are incubated within larger nonprofits), software and API licenses (open source and proprietary), open source content licenses such as Creative Commons. Without easy access to knowledgeable counsel, many creators will sign unfair or even abusive contracts that could tie up their project for years.

1. Fair Use – Andy Warhol said “good artists borrow, great artists steal.”  It may not be as catchy of a quote, but many great journalists, creators, and startups understand their rights to reuse content without permission.  Understanding and exercising fair use allows us to engage in social, cultural, and political dialogue.  It’s a critical safety valve to the broad protection and extremely long duration of copyright law. But as far as laws go, it’s on the complicated side.  When journalists, artists, filmmakers, and startups want to share new perspectives and world-changing ideas, a quality fair use analysis can make that happen.  Moreover, many filmmakers and journalists need a fair use opinion from an attorney to obtain insurance and be picked up by distributors. But the reality is that only a small number of attorneys in the country are experts in fair use law, and when you narrow that list to folks willing to work on a reduced fee basis that number shrinks considerably and clients  never find the legal services they need.

Rather than treating journalists, artists, creators, and startups as silos, let’s recognize the common legal issues faced across all of these groups, and find ways to address the growing demand for legal services by building key legal infrastructure.

If you’re interested in working on this issue you can reach out to me at art @ newmediarights.org

 

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Event: Unintended consequences of hyperlocal social apps

Hyperlocal social platforms, like Yik Yack and Whisper,  are hot right now. But when things turn ugly, or they get into the wrong hands, whose responsibility is it? Who foots the bill for the fallout? The founders and developers who didn't foresee the (negative) possibilities? Parents? Teachers? Consumers? Law enforcement?

Staff Attorney Teri Karobonik will join a panel of other experts on Thursday May 14th to discuss these issues and more at CyberHive's StartUp Breakfast; Unintended Consequences:  Who is responsible when hyperlocal social apps get in the wrong hands?

For more information and to RSVP check out theCyberTECH and CyberHive Startup Incubator Meetup page for the event here.

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Event: Copyright for Media Makers at San Diego City College

This free workshop is open to the public and we want to thank the San Diego Economic Development Department, whose support made this workshop possible.

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Domain names aren't protected by trademarks and other myths

At New Media Rights we often get questions about domain names and trademarks. Many of these questions are the result of some deeply held myths about the use of trademarks in domain names. In this blog we’ll explore & debunk some of these key myths.


Myth: Domain names can’t be protected by trademark law.
Truth: Domains containing trademarks can be protected by trademark law.

This is one of the biggest myths related to trademarks and domain names, and is a byproduct of the complicated history of the protection of domain names. In the early days of the internet, it was a common practice for individuals to buy up top level domains (like .com or .org) of existing trademarked brands or slight misspellings of those brands. Not only was it an easy way to bring in advertising revenue, but many individuals were successful in selling those domains back to major brands at a hefty profit. Some also used it as a way to disrupt a competitors business.  Understandably, this made owners of major brands very upset. To these brands it seemed wrong that someone could profit off a domain using their trademark. But in the early 90’s it wasn’t exactly clear how trademark law or the law in general could be used to stop this behavior.


As a result a number of laws were passed to remedy the situation, the most prominent of which is the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d). This law essentially prohibits buying a URL with the bad faith intent to profit off someone else’s trademark.  For example buying cocacola.exposed with the hope of selling the domain to coke to make a profit would be an example of cybersquatting not permitted under the act.


In addition to the ACPA, The Uniform Domain-Name Dispute-Resolution Policy (UDRP) run by ICANN is another out of court arbitration process that can be used to resolve disputes about cybersquatting. Although not identical, the standard’s for what Cybersquatting is in a UDRP action is very similar.


Myth: Domain names are protected by copyright law.
Truth: Domain names are not protected by copyright law for more information on why check out our copyright FAQ "Is a domain name subject to copyright law?"


Myth: There are absolutely no circumstances where you can use a company’s trademark in a domain
Truth: There are a few, relatively narrow, exceptions that could allow you to use someone else’s trademark in your domain.

 

  • First Amendment: Using the trademark in the domain of another company to parody, satirize or otherwise express opinions about a company will likely be protected by the first amendment.  Taking the example used above let say you wanted to buy cocacola.exposed but instead of selling it, you wanted to develop a website that discussed the potential health risks related to drinking coca-cola and other drinks produced by the company. That use would likely be protected under the first amendment particularly if the website was also non-commercial.
  • Descriptive: The descriptive use defense comes into play when using a trademark for its plain English meaning.  For example registering Marlins.com for a site all about fishing for marlins would be using the word marlin for its plain English meaning.  Although the Miami Marlins have a trademark on “Miami Marlins”, trademark descriptive use would allow for the registration and use of Marlins on a site all about the fish.
  • Nominative Use: The Nominative use defense comes into play when: (1)The product or service being identified can’t be readily identified without its trademark; (2)The usage of the trademark is limited to what is needed to identify it; and (3)No sponsorship is implied by using the mark. Because meeting all of these factors in a URL is challenging this defense comes up less often but is still possible. For example, let’s say a shoe shop at the URL www.shoes4u.com had a page where they listed all of the Nike shoes they have for sale located at www.shoes4u.com/Nike. Provided there was nothing on the page itself implying Nike’s endorsement  this would likely be considered normative use because Nike shoes cannot be identified without their trademark , the use is limited to what is necessary to identify the shoes as Nike shoes and no sponsorship is implied by using Nike.

Trademark law and cybersquatting are complicated issues and best discussed on a case-by-case basis. If someone has stolen your domain name, someone has accused you of misusing their trademark in your domain name, or you’re unsure whether or not you’re cybersquatting please consider reaching out to an attorney for assistance.

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