Cybersquatting is the act of registering, trafficking in, or using a domain name of a trademark or business name with the bad faith intent to profit from that activity. Some cybersquatters use close variants of a trademark, which is commonly called "typosquatting." In the late 1990s and early 2000s, cybersquatting was more common than today, because the Internet and company websites were still relatively new. But today, you do still occasionally hear about incidents of cybersquatting. With the expansion of generic top-level domains (gTLDs), the FTC and trademark owners are concerned about a re-emergence of cybersquatting and fraudulent schemes.
I occasionally hear of someone registering a domain name with someone else's trademark in the hope of making money down the road. This is the essence of bad faith intent to profit, which is prohibited by the Anticybersquatting Consumer Protection Act. If you are using a domain name or close variant to complain about a company, consisently with the First Amendment, you may be able to get away with it. But if you are using a domain name with someone else's trademark in order to make money, you likely will not get very far.
Tuesday, April 30, 2013
Monday, April 29, 2013
Agricultural and harvester's liens in four paragraphs.
When people think of liens, they think of mechanic's liens. There are a number of other liens, two of which are agricultural and harvester's liens. Neither can be completely summarized in four paragraphs. Very generally, an agricultural lienor is a supplier and a harvesting lienor is a "farmhand." Agricultural liens have a broader scope than harvester's liens. An agricultural lien is an interest in farm products or livestock securing payment for goods or services provided in connection with a debtor's farming operation (and a few other circumstances mainly dealing with the rental or lease of land).
Harvester's liens apply only to "harvesters." Harvesters bale, chop, combine, cut, husk, pick, shell, stack, thresh and windrow crops. Under Iowa law, crops include corn, soybeans, hay, straw, and crops produced on trees, vines or bushes. If a harvester works on a farm, they have an agricultural lien on the crops harvested for the reasonable value of the services they provided. As with other liens, the harvester's lien needs to be "perfected." In order to perfect a harvester's lien, the lienor needs to file a financing statement. The lien becomes capable of perfection when the services are rendered. So in theory, the moment you have provided harvesting services for a farmer, you have a lien capable of perfection for the reasonable amount of the services provided.
If you are a farmer and do not know whether you will get paid or not, you only have 10 days during which you must perfect your harvester's lien. So, even if you think the person on whose farm you worked ("farmowner") will eventually pay you, it might behoove you to file a harvester's lien to protect your interest.
Moreover, a perfected lien protects your rights in the event the farmowner becomes insolvent after you worked for them but before you get paid. If you do work for the farmowner and he or she becomes insolvent, your rights might be foreclosed because your lien is not perfected. The same is true for the agricultural lienor. If you have an agricultural lien and do not "perfect," you are not necessarily entitled to anything in the event that the person against whom you have the lien becomes insolvent.
Harvester's liens apply only to "harvesters." Harvesters bale, chop, combine, cut, husk, pick, shell, stack, thresh and windrow crops. Under Iowa law, crops include corn, soybeans, hay, straw, and crops produced on trees, vines or bushes. If a harvester works on a farm, they have an agricultural lien on the crops harvested for the reasonable value of the services they provided. As with other liens, the harvester's lien needs to be "perfected." In order to perfect a harvester's lien, the lienor needs to file a financing statement. The lien becomes capable of perfection when the services are rendered. So in theory, the moment you have provided harvesting services for a farmer, you have a lien capable of perfection for the reasonable amount of the services provided.
If you are a farmer and do not know whether you will get paid or not, you only have 10 days during which you must perfect your harvester's lien. So, even if you think the person on whose farm you worked ("farmowner") will eventually pay you, it might behoove you to file a harvester's lien to protect your interest.
Moreover, a perfected lien protects your rights in the event the farmowner becomes insolvent after you worked for them but before you get paid. If you do work for the farmowner and he or she becomes insolvent, your rights might be foreclosed because your lien is not perfected. The same is true for the agricultural lienor. If you have an agricultural lien and do not "perfect," you are not necessarily entitled to anything in the event that the person against whom you have the lien becomes insolvent.
Cable TV and bundling channels.
What happened:
A New York cable provider, Cablevision, sued Viacom for antitrust violations in connection with its practice of wholesale bundling, in which it forces cable providers to purchase packaged channels owned by the wholesaler.
How it affects you:
Wholesale and retail bundling of TV channels may both violate antitrust law. Wholesale bundlers sell TV channels to retailers. Retail bundlers sell TV channels to consumers. The current lawsuit focuses on wholesale bundling, but could have implications for retail bundling, including eventually allowing consumers to select the channels they want. All readers of this blog who have cable service inevitably have access to cable channels they never watch. This is retail bundling, and there are two primary ways retailers bundle their channels. Sometimes it is done by genre of channel. For example, there are sports packages that include ESPN, FOX sports and CBS sports channels. Sometimes channels are bundled by wholesale company. For example, Viacom owns Comedy Central and MTV, and those are often packaged together.
In both wholesale and retail bundling, consumers are forced to buy channels they do not want. More investigation is needed to ultimately determine whether the practice violates antitrust law. Bundling entails the provision of more than one item or service to a customer as a package, in which the purchase of one item is conditioned on the purchase of the other or others. The practice is inherently suspect for two primary reasons. First, it requires the customer to purchase one or more items or services they do not want or need. Second, it creates a situation in which predatory pricing may arise. If there are multiple items or services, the bundler can offer discounts on the product with high demand, and then spread the cost of that item or service over the remaining bundled items.
In the cable TV context, there is no current indication of predatory pricing, because there is no indication that individual channels are being offered at deep discounts but conditioned on the purchase of other higher priced channels. Both wholesale and retail bundling, however, are suspect and worth more investigation. If the procompetitive justification outweighs the anticompetitive effects, then wholesale bundling will not run afoul of antitrust law. If the anticompetitive effects outweigh the procompetitive justification, wholesale bundling will violate antitrust law. We do not have enough information to make a sweeping announcement whether the practice does or does not violate antitrust law. Fortunately, the practice is getting examined. We will have to wait and see about retail bundling.
A New York cable provider, Cablevision, sued Viacom for antitrust violations in connection with its practice of wholesale bundling, in which it forces cable providers to purchase packaged channels owned by the wholesaler.
How it affects you:
Wholesale and retail bundling of TV channels may both violate antitrust law. Wholesale bundlers sell TV channels to retailers. Retail bundlers sell TV channels to consumers. The current lawsuit focuses on wholesale bundling, but could have implications for retail bundling, including eventually allowing consumers to select the channels they want. All readers of this blog who have cable service inevitably have access to cable channels they never watch. This is retail bundling, and there are two primary ways retailers bundle their channels. Sometimes it is done by genre of channel. For example, there are sports packages that include ESPN, FOX sports and CBS sports channels. Sometimes channels are bundled by wholesale company. For example, Viacom owns Comedy Central and MTV, and those are often packaged together.
In both wholesale and retail bundling, consumers are forced to buy channels they do not want. More investigation is needed to ultimately determine whether the practice violates antitrust law. Bundling entails the provision of more than one item or service to a customer as a package, in which the purchase of one item is conditioned on the purchase of the other or others. The practice is inherently suspect for two primary reasons. First, it requires the customer to purchase one or more items or services they do not want or need. Second, it creates a situation in which predatory pricing may arise. If there are multiple items or services, the bundler can offer discounts on the product with high demand, and then spread the cost of that item or service over the remaining bundled items.
In the cable TV context, there is no current indication of predatory pricing, because there is no indication that individual channels are being offered at deep discounts but conditioned on the purchase of other higher priced channels. Both wholesale and retail bundling, however, are suspect and worth more investigation. If the procompetitive justification outweighs the anticompetitive effects, then wholesale bundling will not run afoul of antitrust law. If the anticompetitive effects outweigh the procompetitive justification, wholesale bundling will violate antitrust law. We do not have enough information to make a sweeping announcement whether the practice does or does not violate antitrust law. Fortunately, the practice is getting examined. We will have to wait and see about retail bundling.
Mechanic's liens in five paragraphs.
I must note that the entirety of the law of mechanic's liens cannot be summarized in five paragraphs. This is just a primer on the law of mechanic's liens -- in Iowa -- although general principles of lien law typically translate across a multitude of jurisdictions. There are a number of requirements in order to file and enforce a mechanic's lien, and the specifics differ among jurisdictions. You are entitled to file a mechanic's lien if you provided labor or material for, or performed labor on any structure on a given parcel.
In Iowa, a builder-owner or general contractor must post notice of commencement of work within 10 days of beginning work in order to properly file and enforce a mechanic's lien. The notice is only effective as to work and material provided after it is posted. If you are a subcontractor and the owner or general contractor failed to post such notice, you can cure the defect by posting it in conjunction with the preliminary notice that is required to be posted of all subcontractors.
If you have successfully navigated the preliminary requirements and are able to file a mechanic's lien, the person against whom you filed the lien can provide written demand for you to bring suit to foreclose the lien within 30 days. If you do not bring suit to foreclose the lien within 30 days, then the lien is forfeited.
If written demand to foreclose the lien is not provided, you do not have unlimited time to enforce it. You have two years plus ninety days from the last date on which labor or material was provided to foreclose the lien. Additionally, you will need to "perfect" the lien before you can foreclose.
If collateral is provided as security before work is complete, you cannot file a mechanic's lien. If security is provided after work is complete, you can still file a mechanic's lien. As you can see, there are nuances in the law of mechanic's liens, and these examples are illustrative, not exhaustive. If you do not do it right, you may end up forfeiting your right to file and foreclose the lien.
In Iowa, a builder-owner or general contractor must post notice of commencement of work within 10 days of beginning work in order to properly file and enforce a mechanic's lien. The notice is only effective as to work and material provided after it is posted. If you are a subcontractor and the owner or general contractor failed to post such notice, you can cure the defect by posting it in conjunction with the preliminary notice that is required to be posted of all subcontractors.
If you have successfully navigated the preliminary requirements and are able to file a mechanic's lien, the person against whom you filed the lien can provide written demand for you to bring suit to foreclose the lien within 30 days. If you do not bring suit to foreclose the lien within 30 days, then the lien is forfeited.
If written demand to foreclose the lien is not provided, you do not have unlimited time to enforce it. You have two years plus ninety days from the last date on which labor or material was provided to foreclose the lien. Additionally, you will need to "perfect" the lien before you can foreclose.
If collateral is provided as security before work is complete, you cannot file a mechanic's lien. If security is provided after work is complete, you can still file a mechanic's lien. As you can see, there are nuances in the law of mechanic's liens, and these examples are illustrative, not exhaustive. If you do not do it right, you may end up forfeiting your right to file and foreclose the lien.
International and domestic sales of goods.
It is increasingly common to make transactions with businesses in other countries. If you are purchasing goods not for personal or household use, Article 2 of the Uniform Commercial Code ("UCC art. 2") or the United Nations Convention on Contracts for the Sale of Goods ("CISG") apply.
All 50 states have enacted the UCC. As of December 2012, 78 nations ratified the CISG. Wikipedia, United Nations Convention on Contracts for the Sale of Goods, http://en.wikipedia.org/wiki/United_Nations_Convention_on_Contracts_for_the_International_Sale_of_Goods (last visited February 21, 2013). Parties can generally contract around UCC art. 2 or the CISG, as long as other requirements for a valid contract exist. There are some things that cannot be varied by agreement, such as good faith, diligence, reasonableness and care. (If a party enters a contract in bad faith with the intention to take advantage of the other party, the other party would likely have a cause of action for fraud.)
In many cases, the parties do contract around the provisions of the UCC or CISG. In international transactions, when the parties are both contracting states and the contract is silent regarding choice of law, the CISG applies.
There are minor differences between the two. CISG art. 18 provides that acceptance of an offer is valid when it reaches the offeror. In American law, acceptance is valid when dispatched, when that is the method by which acceptance is to be effectuated. CISG art. 19 provides that a reply to an offer that appears to be an acceptance but adds additional terms or limitations operates as a rejection and counteroffer. UCC art. 2 provides that such a reply operates as an acceptance, unless the acceptance is expressly conditioned on the adoption of those terms or limitations in the contract. CISG art. 11 does not require contracts for goods over $500 to be in writing. In American law, the Statute of Frauds and the UCC require such a contract to be in writing, electronically or otherwise.
There are no likely changes in the foreseeable future to either the UCC or CISG, so any practical differences between the two are likely to remain minimal. But there are situations when the two differ, as noted above, in which case legal consequences can vary quite widely.
All 50 states have enacted the UCC. As of December 2012, 78 nations ratified the CISG. Wikipedia, United Nations Convention on Contracts for the Sale of Goods, http://en.wikipedia.org/wiki/United_Nations_Convention_on_Contracts_for_the_International_Sale_of_Goods (last visited February 21, 2013). Parties can generally contract around UCC art. 2 or the CISG, as long as other requirements for a valid contract exist. There are some things that cannot be varied by agreement, such as good faith, diligence, reasonableness and care. (If a party enters a contract in bad faith with the intention to take advantage of the other party, the other party would likely have a cause of action for fraud.)
In many cases, the parties do contract around the provisions of the UCC or CISG. In international transactions, when the parties are both contracting states and the contract is silent regarding choice of law, the CISG applies.
There are minor differences between the two. CISG art. 18 provides that acceptance of an offer is valid when it reaches the offeror. In American law, acceptance is valid when dispatched, when that is the method by which acceptance is to be effectuated. CISG art. 19 provides that a reply to an offer that appears to be an acceptance but adds additional terms or limitations operates as a rejection and counteroffer. UCC art. 2 provides that such a reply operates as an acceptance, unless the acceptance is expressly conditioned on the adoption of those terms or limitations in the contract. CISG art. 11 does not require contracts for goods over $500 to be in writing. In American law, the Statute of Frauds and the UCC require such a contract to be in writing, electronically or otherwise.
There are no likely changes in the foreseeable future to either the UCC or CISG, so any practical differences between the two are likely to remain minimal. But there are situations when the two differ, as noted above, in which case legal consequences can vary quite widely.
Price fixing and the Apple e-books litigation.
Apple, Inc. is the only one of six defendants remaining in a price fixing suit alleged by the Department of Justice. All other defendants have settled. The other defendants were book publishers who contracted with Apple when Apple began offering iBooks with the iPad, to compete with Amazon's Kindle. Before the introduction of the iPad, the publishers provided their books to Amazon, and Amazon would then sell the e-books for $9.99. Foer and Patterson, American Antitrust Institute, E-books and Amazon, http://antitrustinstitute.org/~antitrust/sites/default/files/Ebooks%20and%20Amazon.pdf (last visited February 20, 2013). Apple alleges that Amazon's $9.99 price was predatory, but Amazon is not a party to the case. Amazon might be investigated for predatory pricing, but I have seen nothing authoritative substantiating the proposition that Amazon will be investigated -- only that they should be. Id.
The $9.99 price at which Amazon sold e-books prevented competitors from entering the market, and Apple contracted with the other defendants to allegedly fix prices in order to force Amazon to raise its price. The publishers threatened to withhold well over half of their fiction titles from Amazon in order to coerce Amazon to raise its prices. Eventually, Amazon agreed to adopt the publishers' price structure. Id. Consumers were harmed, because the prices of e-books rose.
It will be interesting to see how the case is resolved. The trial is scheduled for June 5, 2013. Apple is a corporate giant. Many companies do not have the resources that Apple has in fighting the government in an antitrust suit.
Courts take several steps in conducting a price fixing analysis. First, the court asks whether alleged price fixing is illegal on its face. If it is, the case is over and the defendant loses. If it is not, the second step is for the plaintiff to show the anticompetitive effects of the arrangement. "Anticompetitive effects" are the bad things that happen in the market as a result of the putative price fixer's conduct.
The third step is for the defendant to provide a plausible procompetitive justification. A "procompetitive justification" is when conduct literally constituting price fixing has a good reason for the restriction. The good reason for the restriction must benefit competition and the market.
If the defendant cannot provide a plausible procompetitive justification, the case is over after the second step. If the defendant can provide a plausible procompetitive justification, the fourth step is to check whether a very obvious less anticompetitive alternative exists. If there is, the defendant will be required to provide a very good explanation as to why it did not adopt the obvious less anticompetitive alternative. If the defendant provides a good explanation as to why it did not adopt the less anticompetitive alternative, the final step is a "Rule of Reason" balancing analysis.
The fact-finder, which is usually the jury, typically decides the outcome in a Rule of Reason analysis. It is a balancing of the anticompetitive effects and procompetitive justification. If the anticompetitive effects outweigh the procompetitive justification, the plaintiff wins. If the procompetitive justification outweighs the anticompetitive effects, the defendant wins. In antitrust law, Rule of Reason balancing is something of a "no holds barred" inquiry. There is no roadmap or set of factors that a court consults to determine whether the procompetitive justification outweighs the anticompetitive effects, or whether the anticompetitive effects outweigh the procompetitive justification.
Price fixing requires concerted action. Obviously, Amazon "fixed" its $9.99 price. Since it was a single company, Amazon cannot be guilty of price fixing. When Apple entered the e-books market, Amazon reportedly had about a 90 percent market share. Predatory pricing occurs if the prices complained of are below a measure of a rivals' costs, and the alleged predator had a reasonable probability of recouping its investment from below-market pricing. If a defendant prices its goods at or below its average variable cost, there is a very heavy burden on the defendant to show that their prices are not predatory. To have a reasonable probability of recouping one's investment, the defendant practically has to have monopoly power.
With a 90 percent market share, id., Amazon certainly had monopoly power when Apple entered the e-books market with the iPad. If Amazon engaged in predatory pricing, consumers would have been harmed, because the predator has to eventually raise prices in order to recoup its investment. Since Amazon is not a party to the suit, we do not know whether Amazon is in fact engaging in predatory pricing. Those are just the allegations.
When Apple and the other publishers coerced Amazon to adopt their pricing structure, the price of e-books rose, harming consumers. If the Department of Justice wins the case, which is probable, Apple's ability to compete in the e-books market is diminished. This would essentially give monopoly power back to Amazon, which could harm consumers again if it engages in predatory pricing.
The $9.99 price at which Amazon sold e-books prevented competitors from entering the market, and Apple contracted with the other defendants to allegedly fix prices in order to force Amazon to raise its price. The publishers threatened to withhold well over half of their fiction titles from Amazon in order to coerce Amazon to raise its prices. Eventually, Amazon agreed to adopt the publishers' price structure. Id. Consumers were harmed, because the prices of e-books rose.
It will be interesting to see how the case is resolved. The trial is scheduled for June 5, 2013. Apple is a corporate giant. Many companies do not have the resources that Apple has in fighting the government in an antitrust suit.
Courts take several steps in conducting a price fixing analysis. First, the court asks whether alleged price fixing is illegal on its face. If it is, the case is over and the defendant loses. If it is not, the second step is for the plaintiff to show the anticompetitive effects of the arrangement. "Anticompetitive effects" are the bad things that happen in the market as a result of the putative price fixer's conduct.
The third step is for the defendant to provide a plausible procompetitive justification. A "procompetitive justification" is when conduct literally constituting price fixing has a good reason for the restriction. The good reason for the restriction must benefit competition and the market.
If the defendant cannot provide a plausible procompetitive justification, the case is over after the second step. If the defendant can provide a plausible procompetitive justification, the fourth step is to check whether a very obvious less anticompetitive alternative exists. If there is, the defendant will be required to provide a very good explanation as to why it did not adopt the obvious less anticompetitive alternative. If the defendant provides a good explanation as to why it did not adopt the less anticompetitive alternative, the final step is a "Rule of Reason" balancing analysis.
The fact-finder, which is usually the jury, typically decides the outcome in a Rule of Reason analysis. It is a balancing of the anticompetitive effects and procompetitive justification. If the anticompetitive effects outweigh the procompetitive justification, the plaintiff wins. If the procompetitive justification outweighs the anticompetitive effects, the defendant wins. In antitrust law, Rule of Reason balancing is something of a "no holds barred" inquiry. There is no roadmap or set of factors that a court consults to determine whether the procompetitive justification outweighs the anticompetitive effects, or whether the anticompetitive effects outweigh the procompetitive justification.
Price fixing requires concerted action. Obviously, Amazon "fixed" its $9.99 price. Since it was a single company, Amazon cannot be guilty of price fixing. When Apple entered the e-books market, Amazon reportedly had about a 90 percent market share. Predatory pricing occurs if the prices complained of are below a measure of a rivals' costs, and the alleged predator had a reasonable probability of recouping its investment from below-market pricing. If a defendant prices its goods at or below its average variable cost, there is a very heavy burden on the defendant to show that their prices are not predatory. To have a reasonable probability of recouping one's investment, the defendant practically has to have monopoly power.
With a 90 percent market share, id., Amazon certainly had monopoly power when Apple entered the e-books market with the iPad. If Amazon engaged in predatory pricing, consumers would have been harmed, because the predator has to eventually raise prices in order to recoup its investment. Since Amazon is not a party to the suit, we do not know whether Amazon is in fact engaging in predatory pricing. Those are just the allegations.
When Apple and the other publishers coerced Amazon to adopt their pricing structure, the price of e-books rose, harming consumers. If the Department of Justice wins the case, which is probable, Apple's ability to compete in the e-books market is diminished. This would essentially give monopoly power back to Amazon, which could harm consumers again if it engages in predatory pricing.
The case has not been tried yet, so we do not how many steps the court will need to dispose of the case. The biggest question is whether Apple's conduct will get Rule of Reason treatment, or whether the government will win after Apple's asserted procompetitive justification regarding Amazon's conduct. I would be surprised if Apple ends up winning. If they do, it will certainly be in a Rule of Reason analysis.
Registering your work of authorship with the Copyright Office.
In another post, I discussed the low-bar for copyright registration. In short, as long as your work is "fixed" and "original," it can be protected. Even without registration, your work can be copyrighted work, but there are clear advantages to registering your work.
A copyright is available for the expression of a work, but not its underlying ideas. Here is a list of the types of works that can be copyrighted. In order to copyright your work, you need to file it with the Copyright Office. To properly file, you need to fill out the application, make payment, and deposit your work. Some works can be deposited online, and some require hard-copies. Even when a hard-copy is required, the application without deposits of work can be completed online. After filing, it takes a little while before you get the registration certificate. So, prepare for the process to take several months.
A copyright is available for the expression of a work, but not its underlying ideas. Here is a list of the types of works that can be copyrighted. In order to copyright your work, you need to file it with the Copyright Office. To properly file, you need to fill out the application, make payment, and deposit your work. Some works can be deposited online, and some require hard-copies. Even when a hard-copy is required, the application without deposits of work can be completed online. After filing, it takes a little while before you get the registration certificate. So, prepare for the process to take several months.
Subscribe to:
Posts (Atom)