Tuesday, July 22, 2014

Common Law Trademarks or USEMARKS (TM).

By Duane J. Higgins, CEO, CYBRANDS.COM

Federal registration is not required to establish rights in a trademark.  Common law rights arise from actual use of a mark and may allow the common law user to successfully challenge a registration or application. (from USPTO.GOV website.)

According to MarkLaw.com:

The symbols ®, TM and SM provide notice to the world that you are claiming trademark rights in any mark using these symbols. You may use the TM on marks identifying goods, and the SM on marks identifying services. You need not have a federal or state registration to use the TM or SM symbols


From The National Technology Assistance Project.

Lsntap.org

Common Law Trademarks (and its Case Law)

A legal aid organization may be entitled to common-law protection even if it has not registered a federal trademark. Common-law trademark claims apply similar principles and case law to the Lanham Act, so that state and federal courts often rely upon each other’s cases, providing a “common reservoir” of trademark precedent.

Common law protection, however, is often limited to the geographic area in which the mark is used, and the plaintiff in a common law protection suit must prove it is entitled to exclusive use of its trademark. Unregistered common-law marks are protected locally even if someone later federally registers the mark.

According to case law:
  • A party may obtain a common-law trademark or service mark on any terms it uses in commerce, though absent federal registration, common-law status generally limits its protection the geographic area in which the term was used. Accordingly, to bring a claim under the Lanham Act, federal registration is not required, “but the scope of any common law rights vindicated would be limited to areas where the mark is in use.”
From:  http://commonlawtrademarkrights.com/
Common Law Trademark Basics:
Priority of Use and Distinctiveness are Key
Common Law Rights Are Two Giant Steps Below Federal Principal Registration Rights
United States trademark rights are acquired by, and dependent upon, priority of use and distinctiveness. Distinctiveness arises from the uniqueness of the choices of the word(s), term, name, symbol, or device, or any combination of these that are used to identify goods or services that a trademark owner has an exclusive right to claim for their own. Registration on the Principal Register goes beyond the rights earned under common law.


Federal Registration Expands the Reach of a Trademark
[T]he scope of federal trademark protection differs significantly from the scope of common law protection: Congress expanded the common law ... by granting an exclusive right in commerce to federal registrants in areas where there has been no offsetting use of the mark.... Congress intended the Lanham Act to afford nation-wide protection to federally-registered marks, and that once the certificate has issued, no person can acquire any additional rights superior to those obtained by the federal registrant. . .    Registration of a trademark, in addition to serving the interests of the registrant by providing constructive notice, serves the interests of other participants in the market place. Entrepreneurs, for example, who plan to promote and to sell a new product under a fanciful mark, should be able to rely on a search of the trademark registry and their own knowledge of whether the mark has been used so that what may be substantial expenditures of money promoting the mark will not be wasted. Consumers are also benefitted by the registration of national trademarks, because such registration helps to prevent confusion about the source of products sold under a trademark and to instill in consumers the confidence that inferior goods are not being passed off by use of a familiar trademark. In short, therefore, the benefits of prior registration under the Lanham Act are justified in light of the order such registration brings to the market place.
Natural Footwear Ltd. v. Hart, Schaffner & Marx, 760 F.2d 1383 (C.A.3 (N.J.), 1985).

Priority or First to Use
The ‘First to Use’ a trademark (the use that has priority) acquires rights in that mark if the mark is inherently strong and if the trademark follows other common law principals. Inherent strength is not something that is automatically present in common words, phrases or designs. If  your trademark is made up of the KEY WORDS that describe your product, components, customers, uses or other words or phrases that you would type into a search engine box, your trademark may not be a trademark at all but just a collection of words or perhaps a trade name. A trademark that is made up entirely of descriptive words may not acquire any common law rights because one user cannot take those words out of circulation for other people to use to describe the same products or services and cannot claim them for exclusive use.

Potential trademarks and parts of potential trademarks that are not inherently distinctive, such as those that only contain words or designs that describe the product or service being sold or those who would use the product or service (also called merely descriptive trademarks), are not given strong legal rights when first used but may acquire legal rights over time or with lots of advertising or use.  If the potential trademark or part of the potential trademark is generic, meaning that it identifies the class of products or services, the generic terms have no trademark rights and cannot acquire legal rights over time.

The date when a business obtains common law rights in a trademark (sometimes know as “trade identity rights’) depends on the distinctiveness of the mark. “A business will obtain rights in the mark upon first use only if the mark is inherently distinctive. If the mark is not inherently distinctive, a business may obtain ownership rights in the mark when the mark attains a secondary meaning.”  Coach House Restaurant, Inc. v. Coach and Six Restaurants, Inc., 934 F.2d at 1559 (C.A.11 (Ga.), 1991). Even if someone uses something as a trademark, “if it is not distinctive, the user does not have a trademark because he has no existing trademark rights.” Otto Roth & Company, Inc. v. Universal Foods Corporation, 640 F.2d 1317 (Fed. Cir. 1981).

Where Do Common Law Trademark Rights Apply?
Common law trademark rights (where defined by state law, local law, case law or federal unfair competition laws) exist where trade has taken place that qualifies as trademark use (or trade name use or service mark use) which traditionally used to be in the isolated local geographic areas where the trade actually took place or where the MARK was actually used. When someone from one state can order from someone in another state on a worldwide web and that product is shipped on a interstate freeway to another state or the service is provided in another state, the idea of local trade is questionable. One state’s law has these definitions:

MARK. Any trade name, trademark, or service mark entitled to registration under this article whether registered or not.
USED. A mark shall be deemed to be used in this state:
a. On goods or their containers or the displays associated therewith or on the tags or labels affixed thereto when such goods are sold or otherwise distributed in the state;
b. In connection with services when it is used or displayed in the sale or advertising of services and the services are rendered in this state; and
c. In connection with a business when it identifies the business to persons in this state.

Does local even exist anymore? Use of internet web sites for selling throughout the U.S. may change the scope of where common law rights exist and how they can be protected and enforced. Sometimes this means you can get a cease and desist letter at your small business in a small town on the East Coast from a big city West Coast business for using a confusingly similar trademark on the internet to promote a local business. Success can bring its own problems.

It’s all about goodwill, the more successful that a trademark is for helping consumers to make a positive connection between a product or service and who provides it, the more likely it is that someone will try to compete by taking the trademark or something similar (may be OK) or confusingly similar (may be infringement) to use it for themselves. Some businesses may do it intentionally: Why take the time to build goodwill when you can use a name that is already associated with goodwill? Some businesses may do it unintentionally: Why should I verify that I have a right to use a name when I like the name and it costs money to verify that it is not being used already and I Googled it and nothing came up?

Common law rights can be used to stop someone else’s use. A common law mark may be able to successfully oppose a confusingly similar federal registration or cancel a federally registered trademark if the trademark compete in the same or similar products or services in the same geographical area if the alleged common law trademark owner can show prior use (or senior use) of the mark. The Lanham Act provides that a registered mark, even if it has become incontestable, still may be challenged "to the extent, if any, to which the use of a mark registered on the principal register infringes a valid right acquired under the law of any State or Territory by use of a mark or trade name continuing from a date prior to the date of registration under this chapter of such registered mark." 15 U.S.C. 1065 as quoted in Advance Stores Co. Inc. v. Refinishing Spec. Inc., 188 F.3d at 411 (6th Cir., 1999). A challenge to a registered mark by an unregistered mark could be in a USPTO opposition or cancellation or in a state or federal court.

Why not just stick with common law rights? Enforcement can be difficult from both sides. Trying to enforce a common law right may mean one do over after another. Stopping one person from using your name may cost more than a federal registration would have cost in the first place and when you are done stopping the first person you still just have a common law right that you are going to have to keep enforcing on a piecemeal basis. If this first use by someone else is a federal registration of the mark by a junior user, the junior user will have a much easier time stopping you than you will have in stopping them. (Federal registrations have presumptive rights.) Many third parties such as Facebook, Twitter, domain name registrars, web site hosts, and others have policies that protect federal registrations. Someone else who registers your common law name will have presumptive rights in that mark and trying to stop them can be very difficult and expensive and the cause of a lot of heart ache and distress.

Common law trademarks do not enjoy the advantages of federal registration (see below) which include being protected more thoroughly from infringement and counterfeiting trademarks. Can’t get federal registration? Marks that do not qualify for federal registration may not qualify for common law protection for the same reasons: federal laws are based on the same or similar common law principles. Likewise, having a federal registration does not protect a business from being challenged by a senior user of a common law trademark. USPTO trademark examiners do not examine potential trademarks for potential infringement by state or common law marks. The USPTO only looks at other USPTO federal registrations for potentially conflicting marks.

Unregistered Trademarks
Unregistered trademarks are protected by law under more than just common law (case law) because various state statutes and federal statutes have adopted (codified) the concepts and terminology that were developed in case law. One applicable federal law for unregistered trademarks is 15 USC § 1125(a) of the Lanham Act: False designations of origin, false descriptions, and dilution forbidden (a) Civil action:
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities;
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Claims for trademark infringement for unregistered marks require findings that the unregistered marks owned by plaintiff are either inherently distinctive [rather than descriptive] or have acquired a secondary meaning and are likely to be confused with defendants' marks by members of the relevant public. Duncan Mcintosh Co. v. Newport Dunes Marina LLC, 324 F.Supp.2d 1083-1084 (C.D. Cal., 2004) quoting Int'l Jensen, 4 F.3d at 823; Vision Sports, 888 F.2d at 613; California Cooler, Inc. v. Loretto Winery, Ltd., 774 F.2d 1451, 1455 (9th Cir.1985). Without inherent distinctiveness or acquired distinctiveness through secondary meaning, an alleged common law trademark is not protected by common law. The same lack of common law protection holds true for trademarks that are geographically descriptive or geographically misdescriptive that have not acquired distinctiveness.

In addition, an unregistered mark must actually have been used as a trademark to be protected under trademark law. "[A] plaintiff must show that it has actually used the designation at issue as a trademark"; thus the designation or phrase must be used to "perform[] the trademark function of identifying the source of the merchandise to the customers." Microstrategy Incorp. v. Motorola, 245 F.3d at 341 (4th Cir., 2001) quoting Rock & Roll Hall of Fame v. Gentile Prods., 134 F.3d 749, 753 (6th Cir. 1998). See valid manner examples below or the web site Function As a Mark.com for examples on how a trademark should function.

Geographic Rights for Unregistered Marks are Limited
A common law mark (unregistered mark) has geographically limited rights (prior use) against a subsequent user under the Tea Rose/Rectanus doctrine -- the first user of a common law trademark may not oust a later user's good faith use of an infringing mark in a market where the first user's products or services are not sold. Nat'l Ass'n Healthcare Comm. v. Cent. Arkansas Agency, 257 F.3d at 735 (8th Cir., 2001) quoting United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 100-01 (1918); Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 415 (1916).
This prior use right may be enforced through an opposition or cancellation proceeding. See Published for Opposition see also Opposition Steps/Cancellation Steps for more information.

From Bitlaw.com


Executive summary:
Trademark rights arise in the United States from the actual use of the mark. Thus, if a product is sold under a brand name, common law trademark rights have been created. This is especially true once consumers view the brand name as an indicator the product's source.
The BitLaw discussion of common law trademarks is divided as follows:

Common law trademarks versus federal registration:
The term "common law" indicates that the trademark rights that are developed through use are not governed by statute. Instead, common law trademark rights have been developed under a judicially created scheme of rights governed by state law. Federal registration, a system created by federal statute, is not required to establish common law rights in a mark, nor is it required to begin use of a mark. However, federal registration, if available, is almost always recommended and gives a trademark owner substantial additional rights not available under common law. See the BitLaw discussion of federal registration for more information.

Geographic limitation of common law marks:
Common law trademark rights are limited to the geographic area in which the mark is used. Thus, if a coffee blend is sold under the name BLASTER in California only, the trademark rights to that name exist only in California. If another coffee retailer begins to market a different blend in New York under the same name (assuming they had no knowledge of the California company), then there would be no trademark infringement. However, if the New York company attempted to sell their coffee blend nation-wide, they would discover that the California company's common law rights to the mark would prevent them from entering the California market.

Effect of common law marks on trademark searches:
Since no registration is required in order to establish common law rights to a trademark, it can be difficult to discover whether anyone has trademark rights in a particular mark. This is the legal background for the difficulties and expenses involved in trademark clearance searches. If registration were required for trademark rights, clearance searches would only need to examine trademark registers. Under U.S. law, however, an attempt must be made to discover these common law rights. 

Saturday, July 12, 2014

The Naming of a New World Currency?

Is the "SPEDRI" the Real Deal?

By Duane J. Higgins, ceo
Cybrands.com

All of this talk about Bitcoin, crypto-currencies and mobile and micro-payments over the past months and years has got me to thinking about real currencies and the future of money. Especially the prospect of a new world currency which has been discussed for decades. 

There has been speculation for nearly half a century regarding what currency could potentially challenge or usurp the US Dollar as the worlds global reserve currency?  As they say, nothing lasts forever. History will tell us that the mighty US Dollar will likely end it's marvelous run as the worlds global reserve currency at some point. The pressing questions are of course when will that happen? (and) what will replace it?

At this time, there is an increasing interest in and focus on the IMF's (International Monetary Funds) Special Drawing Rights or SDR  having the potential to become a new worldwide currency or even to challenge the US Dollar as the worlds reserve currency.

The speculation goes on and on. However, there's a particularly interesting quote from Jim Rickards, the author of "The Death of Money" that was published earlier this year:

“The next time we will have a liquidity crisis in the world it’s going to be bigger than the ability of central banks to deal with it. The IMF will basically have to bail out the world by printing the SDRs (an international reserve asset created by the IMF in 1969 to supplement its member countries' official reserves). By that time, you will see the SDR emerge as the new global world currency.” 

From the IMF (International Monetary Fund) Website:

The SDR is an international reserve asset, created by the IMF in 1969 to supplement its member countries' official reserves. Its value is based on a basket of four key international currencies, and SDRs can be exchanged for freely usable currencies. With a general SDR allocation that took effect on August 28 and a special allocation on September 9, 2009, the amount of SDRs increased from SDR 21.4 billion to around SDR 204 billion (equivalent to about $316 billion, converted using the rate of March 12, 2014).

What is quite interesting is that the Special Drawing Rights or SDR was actually intentionally misnamed by the IMF or at least given a confusing name for a reason. 

According to Wikipedia.org:

...the SDR or Special Drawing Rights was purposefully given an innocuous name free of connotations due to controversy as disagreements broke out over the nature of this new reserve asset during its creation. Some wanted it to function like money and others, credit.[Williamson 3] While the name would offend neither side of this debate.

So where does that leave us now?

Where it leaves us is that if the IMF is planning for any expansion of the "Special Drawing Rights" to the worldwide/commercial and even consumer level-they will likely need to modify the name. The term "Special Drawing Rights" is too long, cumbersome and confusing. It's not necessary.

Doing a little quick research on new product  naming led me to come up with this name:

the SPEDRI.

"SPEDRI" is designed as a common sense abbreviation for Special Drawing Rights.

SPEDRI is unoffensive and is also easy to say and remember.  SPEDRI is a consumer friendly term. It has a very clear meaning as an abbreviation for the Special Drawing Right.

Special Drawing Rights
SDR
SPEDRI

One Spedri.
One thousand Spedri.
One million Spedri.


Dollar, Euro, Franc, Peso, Rupee, Ruble, Yen, Yuan and..................SPEDRI.

Special Drawing Rights=SDR=SPEDRI

You get my point. 

So should we start getting accustomed to the term "SPEDRI" and all that this new burgeoning currency would entail?
Is the "SPEDRI" a sleeping giant that is yet to be awakened by unforseen events on the global stage?

Time will tell.

More Information on the IMF's Special Drawing Rights/SDR/SPEDRI:

 So back to the issue of the Special Drawing Rights or SDR potentially becoming a world currency. 
There is a very interesting excerpt in an IMF policy paper dated Jan. 7, 2011.  There is a clear reference to the IMF potentially creating a "new class of reserve assets" constructed from the SDR. The recommendation is here:
Develop a new reserve asset: Issuance by the Fund (or related investment vehicle) of SDR-denominated securities in sufficient volume could offer a safe haven in theevent of disorderly diversification out of the existing stock of assets, as well asoffering an alternative mode of Fund borrowing at time of high potential demand for its resources.
Reading into this paper further, the IMF talks about a "potential new class of reserve asset: tradable SDR securities..."
From another interesting article in The New American. Dated May 14, 2014. The title of the article is:  IMF Bailout for Ukraine and a New World Currency:
While much of the world was distracted by the supposed clash over Ukraine between Russian strongman Vladimir Putin and Western politicians, the International Monetary Fund announced a bailout of the new Ukrainian regime denominated in the IMF’s increasingly influential proto-global currency known as Special Drawing Rights, or SDRs. Analysts are warning that the developments could have profound implications for the global monetary system and the economy — and especially for the United States...
This is what appears to be the the first loan by the IMF, headquartered in Washington, DC, as specifying a loan in SDR (Special Drawing Rights) rather than in the customary US Dollar. Is this the start of something bigger?
Here are a few more articles regarding the prospect of the Special Drawing Rights/SDR becoming a  world currency:





So the way I see it, the IMF's already utilized synthetic currency is certainly in a prime position to become a global currency and potentially the worlds' new reserve currency, There have  been many strategic moves by the IMF to position the SDR as the new global reserve currency. SDR  bonds are already being issued that his the first step to a freely tradable currency. The global monetary system already is set up for and utilizes SDR through the IMF, the World Bank and the Bank of International Settlements (BIS.ORG) . Certainly, there are some hurdles. However, less hurdles with the SDR than with any other option. 


Friday, May 9, 2014

The Internet of Domains (IoD).

By Duane J. Higgins, ceo
Cybrands.com

Many of us have at least heard mention of the "Internet of Things"  or (IoT) of which there is apparently no agreed upon definition. According to an interesting article at ComputerWorld.com this week titled  Explained: The ABCs of the Internet of Things:

...there is a test for determining whether something is part of the IoT: Does one vendor's product work with another's? Does a door lock by one vendor communicate with a light switch by another vendor, and do you want the thermostat to be part of the conversation?

I did read through the article and a few things were evident to me. One is that when it comes to the consumer applications for the IoT-that the "cool factor" is more important than anything. Sure it might be fun to have your garage door opener talking with your garbage disposal on some level. However, many of the consumer appliations will end up being more of a luxury than a necessity. Though there is no doubt that there will be countless and valuable contributions in many other areas such as military, IT and home security, business, industrial etc.

Second is that this whole process of the evolution of the IoT is going to be a long, slow slog. With many fits and starts. Many glitches. Many winners and losers on the provider side. How the whole process will sort out remains to be seen.

So what does this all have to do with domain names?

Possibly alot.

I have written extensively about alternative uses for Internet domain names. This topic is especially relevant with the ICANN (the governing body of domain names) introducing potentially over 1000 new domain name extensions to the global marketplace. Many of them such as .guru, .directory and .club and many more  are already active.

Some of my prior articles regarding alternative uses for Internet domain names are here:

Alternative Uses for Internet Domain Names

The Chinese and URL Trademarks.

One Thousand Splinternets

Is the Age of Just One Internet Over?

Domain Names As Phone Numbers

 So what does the Internet of Things (IOT) have to do with Internet domain names?

According this this article at Computerworld:

Part of this is due to the arrival of IPv6 addresses, the next generation Internet protocol. It replaces IPv4, which assigned 32-bit addresses, with a total limit of 4.3 billion; IPv6 is 128-bit, and allows for 340 trillion trillion trillion addresses or 340,000,000,000,000,000,000,000,000,000,000,000,000. This makes it possible to assign a unique identifier to anything that's part of the IoT

That 34 trillion trillion available IP addresses is a pretty large number. 

From Wikipedia.org

The Internet Protocol address (IP address) is of course a numerical label assigned to each device (e.g., computer, printer) participating in a computer network that uses the Internet Protocol for communication.[1] An IP address serves two principal functions: host or network interface identification and location addressing. Its role has been characterized as follows: "A name indicates what we seek. An address indicates where it is. A route indicates how to get there."[2]

So most of us already understand that Internet domain names generally correspond with IP addresses. From Wikipedia:

A domain name is a label that people use to find points on the Internet without having to remember a string of numbers. Computers only understand IP addresses, whereas people generally find it easier to rember words or terms. The domain name system translates these easily remembered names into their unique IP addresses for the computer to find. 

IP addresses and domain names go together.

Will there be value in naming objects/devices (assigning domain names to) in the IoT? Just as we do with websites etc.? If those applications are developed then use of domain name usage could be massively expanded in the blink of an eye. This is something that I think should be watched very closely.

Here's another potential area for domain name use/expansion that I would keep an eye on:

According to that same ComputerWorld article regarding some of the potential pitfalls and dangers that could arise out of this new and developing Internet of Things. The main concern is of course security. Security in terms of personal information being potentially exposed to hackers. Security in terms of any given IoT application or network being compromised and exploited.

Could the DNS (domain name system) provide a level of security for IoT users? A firewall of sorts?

Potentially, and I think in a few different ways. 

Domain names of course don't have to we a word, name or even make sense. For example these is a domain names:

jdkeosx.mobi
59381hk.net

What would be the security applications?

One potential application wold be multi-factor authentication.

From Wikipedia, the free encyclopedia:
Multi-factor authentication (also MFA, two-factor authentication, TFA, T-FA or 2FA) is an approach to authentication which requires the presentation of two or more of the three authentication factors: a knowledge factor ("something only the user knows"), a possession factor ("something only the user has"), and an inherence factor ("something only the user is"). After presentation, each factor must be validated by the other party for authentication to occur.

Knowledge factor-domain name
Possession factor- IP address
Inherence factor- Something the user is.

In case you missed my suggestion-the security applications could be revolutionary. First you have the device IP address (where the device lives on the Internet) and then you have the domain name IP address (where the domain name lives on the Internet). That's a double security layer. Add in a password and you have "triple level authentication." Which is of course much better than double. (the something you have and something you know) approach. It would be a new form of Multi-factor authentication.

There you have it. An added security layer. However, there is another layer as well that would be inherent in this process.

The DNS. (Domain Name System)

From Wikipedia:

The Domain Name System (DNS) is a hierarchical distributed naming system for computers, services, or any resource connected to the Internet or a private network. It associates various information with domain names assigned to each of the participating entities. Most prominently, it translates easily memorized domain names to the numerical IP addresses needed for the purpose of locating computer services and devices worldwide. The Domain Name System is an essential component of the functionality of the Internet.

And of course the DNS is much more complicated than that. However, what I am proposing is the DNS being utilized as a firewall.  Another barrier for hackers to get through. Could this happen? Could this work? A domain name as a computing firewall?

This is the definition of a Computing Firewall from Wikipedia:

 In computing, a firewall is a software or hardware-based network security system that controls the incoming and outgoing network traffic based on applied rule set. A firewall establishes a barrier between a trusted, secure internal network and another network (e.g., the Internet) that is not assumed to be secure and trusted.[1]

So here's a real-life proposed application that could account for around 3 billion new registered domain names right off the bat (According to one article the Internet is projected to reach 3 billion users by years end if not already. Most of those users on mobile devices.):

MOBILE IDS

Let's say when you purchase a mobile device you are also assigned or choose a mobile id to match the device. What's the point of all of that?  President Obama has proposed the use of "Internet IDs" for all users related to verification and authenticity of users.

Could a domain name serve as a mobile id for mobile users?


It's quite interesting that Google has been doing research regarding what they call a “device identifier” which are unique to every mobile phone.

From a Google Spokesman as told to a Clickz reporter in 2011:

“Over time, we’ll be able to enable things like frequency capping, spam filtration, improved conversion measurement and serving ads based on topics of interest, all of which will help us display the most useful in-app ads; minimize the number of irrelevant in-app ads shown; and improve in-app advertising for users, advertisers and developers.”

So why is Google proposing a "device identifier" of some sorts?
 
According this this article published on Marketing Pilgrim in 2011:

All of which are good things for both advertisers and consumers, though consumers are likely to balk at the idea when they realize what’s going on. To combat this automatic distrust, Google says they will offer an opt-out system, but its unlikely that mobile users will flock to the website to remove themselves.

So why use a domain name as opposed to another "device identifier" of some sorts?

For one thing domain names are much easier to remember than IP addresses. (Isn't that the reason domain names were created in the first place).

The secondary answer is probably in two parts:

Multi level authentication (security applications)
Security of the DNS (firewall)

Regarding concerns for security/confidentiality of information attached to domain name registrations. According to the new ICANN proposal for the Aggregated Registration Data Service (ARDS). ICANN reports that "gated access would only be available to requestors who applied for and were issued credentials to be used for ARDS query authentication." In other words, your personal data would be as safe as current technology allows.

There you have it. Just a few ideas about the "Internet of Domains" (IoD) that is just as real and definable as the "Internet of Things" (IoT) which doesn't have a definition either.





Sunday, April 13, 2014

Did I Release a Big Fish Domain Name?

By Duane J. Higgins, ceo
Cybrands.com

I am releasing into the wild a domain name (TMCH.CO) that I have held for the past two years.  Below is my registration record from the WHOIS database:

Domain Registration Date:                    Wed Mar 14 23:01:33 GMT 2012
Domain Expiration Date:                      Thu Mar 13 23:59:59 GMT 2014
Domain Last Updated Date:                  Wed Mar 19 17:03:23 GMT 2014


TMCH is the acronym for the Trademark Clearinghouse. 

For those of you who have been in outer space, the wilderness or deep under water for the past few years the "Trademark Clearinghouse" (TMCH) is a rights protection mechanism developed and sponsored by ICANN (the Internet Corporation for Assigned Names and Numbers) which is the governing authority of the Internets naming and numbering system. Basically domain names.

Some of you did read my recent post titled Domaining 101:When to Fish or Cut Bait. I wanted to follow up on that post with a related post regarding why I am letting this particuar domain name (TMCH.CO) expire.
 
Sometimes a fisherman will let a seemingly valuable fish go back into the ocean and no one will understand why they did that. Or even more likely, no one else would have seen the release or even know that it happened. So for the record, I'm about to let what some may consider a big fish (domain name) go back into the ocean and I will give a brief explanation.

So there is a short answer and a more drawn out one.

The easy answer is that the domain name is missing the letter "m" in the name. That is it is not a .com name. It is a .co name. I have written on the continued value of .com names and the .com domination of the domain name marketplace and the Internet. You could find some of these posts here:

The Dot Com Paradigm
The Dot Com Firewall
Is Dot Com Dying a Thousand Deaths
The Dot Com Kingdom
One Thousand Splinternets

I should add that it's very likely that the following domain names could be worth a good deal of money on the open market (no, I do not own them).

TMCH.COM
TMCH.ORG (.org is of course for non-profit)

(I would hazard a guess that each name  could easily go for 6-7 figures on the open market. The TMCH and ICANN are both non-profit organizations so the .org could even be more valuable than the .com in this case.)

So why am I letting TMCH.CO go?

Because it isn't .com or .org.

How much is TMCH.CO worth on the open market?

Not very much and that is my whole point.

The truth is that TMCH.CO has been offered to nearly every major player in the Trademark Clearinghouse industry and most of them multiple times. There has been  level of interest in that domain name that borders somewhere below indifference. So I had to take a realistic view on what that domain name is really worth. In addition, the domain name has been freely available for each and every day of the past two years on a parked auction page. Anyone could have bid on the name at any given time over the past two years. How many bids did I receive during this period? Zero. Nada. None. Zilch. A pretty clear message to me.

Could the name eventually be worth something? Probably. Especially if a party invested the money and resources into advertising, marketing and brand building of this .co domain name.

Now, I'm sure that there are many .co domain names that hold value and some probably very valuable. In fact, the .co registry was recently sold to another party for over 100 million dollars.  

But there's part of me that feels like the zealous baseball fan who so readily throws the opponents home run baseball back onto the field as a form of protest and support for his own team. Maybe I'm rooting for .com just a bit too much.  Maybe I'm just a poor sport or a dot com fanatic.

However, in this case, It's quite easy for me to say that there is no demand for TMCH.CO and so I will gladly let it go.

So long TMCH.CO. I will miss you and watch you grow.

Have a good life. 






Friday, April 11, 2014

The Domain Name as a Computing Platform.

By Duane J. Higgins, ceo
Cybrands.com

I love Wikipedia and find the information to be remarkably helpful and accurate. I am interested in the idea of the domain name as a computing platform and did some rudimentary research on this. This is some of what Wikipedia has to say about computing platforms:

A computing platform is, in the most general sense, whatever pre-existing environment a piece of software is designed to run within, obeying its constraints, and making use of its facilities. Typical platforms include a hardware architecture, an operating system (OS) and runtime libraries.[1]
Binary executables have to be compiled for a specific hardware platform, since different central processor units have different machine codes. In addition, operating systems and runtime libraries allow re-use of code and provide abstraction layers which allow the same high-level source code to run on differently configured hardware. For example, there many kinds of data storage device, and any individual computer can have a different configuration of storage devices; but the application is able to call a generic save or write function provide by the OS and runtime libraries, which then handle the details themselves. A platform can be seen both as a constraint on the application development process — the application is written for such-and-such a platform — and an assistance to the development process, in that they provide low-level functionality ready-made.
Platforms may also include:
  • Hardware alone, in the case of small embedded systems. Embedded systems can access hardware directly, without an OS.
  • A browser in the case of web-based software. The browser itself runs on a hardware+OS platform, but this is not relevant to software running within the browser.[2]
  • An application, such as a spreadsheet or word processor, which hosts software written in an application-specific scripting language, such as an Excel macro. This can be extended to writing fully-fledged applications with the Microsoft Office suite as a platform.[3]
  • Software frameworks that provide ready-made functionality.
  • Cloud computing and Platform as a Service. Extending the idea of a software framework, these allow application developers to build software out of components that are hosted not by the developer, but by the provider, with internet communication linking them together.[4] The social networking sites Twitter and facebook are also considered development platforms.[5][6]
  • A virtual machine (VM) such as the Java virtual machine.[7] Applications are compiled into a format similar to machine code, known as bytecode, which is then executed by the VM.
  • A virtualized version of a complete system, including virtualized hardware, OS, software and storage. These allow, for instance, a typical windows program to run on what is physically a Mac.
Some architectures have multiple layers, with each layer acting as a platform to the one above it. In general, a component only has to be adapted to the layer immediately beneath it. For instance, a java program has to be written to use the java virtual machine (JVM) and associated libraries as a platform, but does not have to be adapted to run for the Windows, Linux or Macintosh OS platforms. However, the JVM, the layer beneath the application, does have to be built separately for each OS.[8]


Now for what Wikipedia says about the domain name system:

The Domain Name System (DNS) is a hierarchical distributed naming system for computers, services, or any resource connected to the Internet or a private network. It associates various information with domain names assigned to each of the participating entities. Most prominently, it translates easily memorized domain names to the numerical IP addresses needed for the purpose of locating computer services and devices worldwide. The Domain Name System is an essential component of the functionality of the Internet.
An often-used analogy to explain the Domain Name System is that it serves as the phone book for the Internet by translating human-friendly computer hostnames into IP addresses. For example, the domain name www.example.com translates to the addresses 93.184.216.119 (IPv4) and 2606:2800:220:6d:26bf:1447:1097:aa7 (IPv6). Unlike a phone book, the DNS can be quickly updated, allowing a service's location on the network to change without affecting the end users, who continue to use the same host name. Users take advantage of this when they use meaningful Uniform Resource Locators (URLs), and e-mail addresses without having to know how the computer actually locates the services.
The Domain Name System distributes the responsibility of assigning domain names and mapping those names to IP addresses by designating authoritative name servers for each domain. Authoritative name servers are assigned to be responsible for their supported domains, and may delegate authority over subdomains to other name servers. This mechanism provides distributed and fault tolerant service and was designed to avoid the need for a single central database.
The Domain Name System also specifies the technical functionality of this database service. It defines the DNS protocol, a detailed specification of the data structures and data communication exchanges used in DNS, as part of the Internet Protocol Suite.
The Internet maintains two principal namespaces, the domain name hierarchy[1] and the Internet Protocol (IP) address spaces.[2] The Domain Name System maintains the domain name hierarchy and provides translation services between it and the address spaces. Internet name servers and a communication protocol implement the Domain Name System.[3] A DNS name server is a server that stores the DNS records for a domain name, such as address (A or AAAA) records, name server (NS) records, and mail exchanger (MX) records (see also list of DNS record types); a DNS name server responds with answers to queries against its database.

So would you say that a domain name is a computing platform?

I would. 

Tuesday, April 1, 2014

Domaining 101: To Fish or Cut Bait?

By Duane J. Higgins, ceo
Cybrands.com

As a long time domain name investor I'm constantly reminded of the valuable process of "fishing and cutting bait" with my own domain portfolio and specific domain names. It really is a constant process of culling, cultivating and enhancing the portfolio. Particularly when a specific domain name comes up for expiration or renewal.

A definition from Wikipedia of my favorite colloquialism is below:

Fish or cut bait is a common English language colloquial expression, dating back to the 19th-century United States, that advises for swift decision-making (to act or not to act), and cautions against procrastination and/or indecisiveness. The meaning of the expression has expanded over time and can be interpreted in a number of different ways depending on the context. 

Thinking about this healthy process got me to thinking about other popular colloquialisms that are often bandied about business circles and relate to the business world and everyday life.

(By the way, I had to look up colloquialism myself for this definition): 

col·lo·qui·al·ism
kəˈlōkwēəˌlizəm/
noun
plural noun: colloquialisms
1.
a word or phrase that is not formal or literary, typically one used in ordinary or familiar conversation.

Here is a list that I found of more traditional colloquialisms from reference.com:

Many of these expressions are I'm sure "older than the hills" (5th from bottom). However I would say in most cases truer than ever. ( have cut the ones from this list that are less applicable to business practices)

A bird in the hand is worth two in the bush
A chain is only as strong as its weakest link
A diamond is forever
A fate worse than death
A fly in the ointment
A friend in need is a friend indeed
A good man is hard to find
A leopard cannot change its stripes

A little knowledge is a dangerous thing
A nest of vipers
A picture is worth a thousand words
A piece of the action
A pig in the poke
A pound of flesh
A sight for sore eyes
All that glitters is not gold
All the worlds a stage
Alls well that ends well


Caught between a hard place and a rock
Come hell or high water
Dead as a doornail
Drop in the bucket

Dumb as a box of rocks
Dumb as a rock

Half hearted
Has the cat got your tongue?
Heard it through the grapevine
Hell in a handbasket
In a pickle
Its raining cats and dogs
Keep your friends close and your enemies closer
Law of the land
Let the cat out of the bag
Life is like a box of chocolates
Lifes too short
Like a chicken with its head cut off
Like a fart in a whirlwind
Like a moth to a flame

Like two peas in a pod
Living on borrowed time
Long in the tooth
Loose lips sink ships
Lose your marbles
Mad as a hatter
Make no bones about it
Mind your Ps and Qs
My cup of tea
My minds eye
Old as the hills

Stubborn as a mule
Stupid is as stupid does
The left hand doesnt know what the right hand is doing.


To "fish or cut bait" is not on this particular list. However, it is a process that I have used quite consistently with my own domain name portfolio  over fifteen- plus years of domain name investing. Generally, my domain portfolio has  fluctuated somewhere around five hundred names during most of this time. With my total domain name purchases being upwards of 10,000 total names to date.

How did I do that when my current portfolio numbers only around a few hundred domain names?

Buying, selling, trading, holding and letting many thousands of domain names expire. 

"Fishing and cutting bait"

As for my continued domain investing strategy. To date I have run my domain name business solely as a break even proposition.  Regularly buying domain names and letting others expire at the same time. Any profits were reinvested. A zero sum game. Basically no profits and no losses either.

So what is the end game?  

The end game is a refined domain name investing strategy that it took me 15 years to develop.

That is invaluable. 

 





Friday, March 28, 2014

Common Law Trademarks or "Usemarks."

By Duane J. Higgins, ceo
Cybrands.com

I'm not an attorney and I don't play one on the Internet. However, I have to admit it's kind of fun to play desktop attorney and write about whatever I want. That being said, this is a column about common law trademarks. Some are probably questioning why I use the term "usemarks" in my title. The easy answer is that common law trademarks are sometimes called first use marks.  This additional information comes from the USPTO.gov website:

"What are "common law trademark" rights:

Federal registration is not required to establish rights in a trademark.  Common law rights arise from actual use of a mark and may allow the common law user to successfully challenge a registration or application.

Common law trademarks are of particular interest to me as I have owned upwards of ten thousand domain names through the years. In addition, I have certainly obtained common law trademark rights with many of the names through the use of the domain names and product/company names in commerce.

Let me start by mentioning that Yahoo recently spent about a billion dollars for a company called Tumblr.  CEO Marissa Mayer suggesting that 75% of that cost was for the social blogging site's "cachet" with the young trendy set. In Yahoo's quarterly report filed this week Yahoo revealed that  $752 million of Tumblr's value is "goodwill."

What exactly is Ms. Meyer referring to? Clearly she is referring to something that is far removed from the Tumblr tangible assets, contracts, software etc?  If that is the case- then were talking about a non-quantifiable asset that is valued at $752 million by Marissa Mayer!  Am I the only one that finds that interesting?

So is Marissa Myer referring to the Tumblr brand? The Tumbler brand that is of course protected by the Tumbler trademarks?

There are of course federally registered trademarks on Tumblr. However, what if there wasn't?  Is there  a chance that the Tumblr brand and "cachet" would be just as valuable at this point in the companies life?

Federally registered trademarks are of course enormously important and are critical to the smooth functioning of our worldwide intellectual property system. One of the most valuable mechanisms resulting from the Federally registered marks  are important procedural advantages in court, such as a presumption of validity for a plaintiff’s trademark.

But (like most of us) what if you don't have a federally or multinationally registered trademark? Where do you stand (legally) with the use of your business/service name in commerce?

Here's some information you might find interesting regarding ICANNs Trademark Clearinghouse (TMCH) and their position regarding common law trademarks:

Nearly all of the discussions regarding ICANNs newly launched "Trademark Clearinghouse" have been regarding registered trademarks. However, it's important to note that "Common Law" trademarks are eligible for the TMCH as well.

Also keep in mind that inclusion of any trademark in the "Trademark Clearinghouse" is a rights protection mechanism in and of itself. From the Trademark Clearinghouse site:

The Trademark Clearinghouse (TMCH) is the most important rights protection mechanism built into ICANN’s new gTLD program. Its' a centralized database of verified trademarks, that is connected to each and every new gTLD that will launch.

From the TMCH website regarding court validated marks:

Court validated marks refer to a mark that has been validated by a court of law or other judicial
proceeding at the national level, such as unregistered (common law) marks and/or well-known
marks. In the case of a mark validated by judicial proceedings, the judicial authority must have existed as a competent jurisdiction as of the date of the order or judgment. Any referenced authority must have the indicia of authenticity and must on its face confer the specified rights (i.e., the documentation must be sufficient to show validation of the mark without the need for the Clearinghouse to consult outside resources).

And now from the USPTO (United States Patent and Trademark Office)  website:

What are "common law" rights?:

Federal registration is not required to establish rights in a trademark.  Common law rights arise from actual use of a mark and may allow the common law user to successfully challenge a registration or application.


From Wikipedia:

...An unregistered mark may still receive common law trademark rights. Those rights, for example, may extend to its area of influence—usually delineated by geography. As such, multiple parties may simultaneously use a mark throughout the country or even state. An unregistered mark may also be protected under the federal "Lanham Act" (15 USC § 1125) prohibition against commercial misrepresentation of source or origins of goods. Unregistered marks are also protectable in the United States under Lanham Act §43(a).

 From Bitlaw.com:

Trademark rights arise in the United States from the actual use of the mark. Thus, if a product is sold under a brand name, common law trademark rights have been created. This is especially true once consumers view the brand name as an indicator the product's source. Federal registration is not required to establish rights in a trademark.  Common law rights arise from actual use of a mark and may allow the common law user to successfully challenge a registration or application.

From WorldTrademarkReview.com:

Common law and Lanham Act protections afforded to unregistered trademarks provide a wealth of remedies since they are premised on use rather than registration.

Also, from that site:

In the United States, protection is available
for unregistered marks under common law
and the federal statute known as the
Lanham Act (§ 43(a)(1), 15 USC § 1125(a)(1)
(1989)). The owner of a valid but
unregistered mark can seek recourse against
the copyist in state and federal courts.

Also,

Common law and federal law provide the
owner of unregistered trademark rights with
bases for remedies to infringement.

This is from TraverseLegal.com:

Many businesses and individuals do not know that trademark rights arise not only from registration with the United States Patent and Trademark Office, but from simply use of a trademark in connection with goods or services.  These rights, or common law trademark rights as they are known to lawyers, come from the continuous prior use of a mark in commerce.  But common law trademark rights are not preferred, as they extend only to the places where a trademark has been used in commerce.  Additionally, they do not offer the benefits of federal registration with the United States Patent and Trademark Office, such as the ability to recover profits, statutory damages, attorneys fees, treble (triple) damages for willful infringement, national priority, and the right to use the ® to give notice of rights in a mark.

This is from Lsntap.org (Legal Services National Technology Assistance Project)

According to case law:
  • A party may obtain a common-law trademark or service mark on any terms it uses in commerce, though absent federal registration, common-law status generally limits its protection the geographic area in which the term was used. Accordingly, to bring a claim under the Lanham Act, federal registration is not required, “but the scope of any common law rights vindicated would be limited to areas where the mark is in use.”
Just some information to keep in mind when you register or use a particular domain name for business, service or a product  in commerce. Attorneys will generally recommend the Federally registered mark for the maximum protection.  But keep in mind that a strongly established common law trademark or "usemark" can also serve as a deterrent to abusive practices by other parties.






Tuesday, March 18, 2014

Are You "Old School Internet"?

By Duane J. Higgins, ceo
Cybrands.com

Maybe all of the discussions this past week about the 25th anniversary of the World Wide Web has caused me to wax nostalgic. Whatever the case,  I have recently concluded that I do very much long for the halcyon days of the early Internet.  What I like to call "old school  Internet".

From Urban Dictionary
 
"Anything that is from an earlier era and looked upon with high regard or respect." 

Maybe it was my rather uninspiring standoff with the 20 something salesman at the cellular store over the merits (or lack thereof) of the latest smartphone  that lead me to relegate myself to the  "old school Internet" category.  Maybe it is my affinity for the early days of the Internet when you had  .com, .net and .org and that's all anyone ever wanted or needed.

 Maybe I'm old fashioned or maybe I'm just a technology resister.  I'm  stuck in the Internet of 1998 and quite happy to be there.  What do I believe are some of the "classic" symptoms of the "old school  Internet" syndrome:

  • I don't have a smartphone and have no interest in one. In fact my stone-age flip phone seems to serve me just fine. 
  • I don't text and have never texted. Have never had a need to.  (I do understand the convenience and efficiency aspect of it. If something pushes me over the edge to become a "reluctant adopter" that will be it.)
  • I don't do Facebook or any other social media. Never have. Don't plan to. 
  • I don't do gaming systems. 
  • I don't do downloads.
  • I don't do wearable technologies or apps. 
  • I have the minimum amount of technology for what I need to do. That amounts to my (circa 2003) HP laptop computer hard lined to the wall of course.  No need for wifi.
Not to worry if anyone is thinking that I'm up here in the northern hemisphere living an Amish-like type of existence.  I do spend a good deal of time on the Internet. You have to if you want to run an Internet business.  Like the notorious bank robber Willie Sutton famously once said when asked why he robbed banks and responded "that's where the money is." 

Of course, I know that there is a distinct chance that I am just a late adopter. Part of the latest raft of historys'  long line of late adopters. Whether involving the automobile,  television, microwave or the Internet itself. The folks who came to the party late and most likely were dragging their feet the whole way.

However, I am also reminded of the tales of the old time loggers in the northern forests who still cut their trees with a hand saw and use work horses to haul them out. Doing their jobs quite happily and efficiently. In a way that suits their purposes.

I kind of like the sound of that. 






Sunday, March 9, 2014

The Dot Com Paradigm.

By Duane J. Higgins, ceo
Cybrands.com

Dictionary.com defines paradigm as a: 

aframework containing the basic assumptions, ways of thinking, and methodology that are commonly accepted by members of a scientific community.
b. such a cognitive framework shared by members of any discipline or group: the company’s business paradigm.

So what is the "dot com paradigm"

The dot com paradigm is this:

"All domain name extensions are and will continue to be adjuncts to .com." 

What do I mean by adjuncts?

From Dictionary.com:
Adjunct-

ad·junct
[aj-uhngkt] Show IPA
noun
1.
something added to another thing but not essential to it.

So I wanted to present some of my thoughts on what I'm calling "the dot com paradigm" in this blog post. However, as I've often noticed, many good ideas are often swirling around the Internet at the same time. I've posted credit to my counterpart at the end of this blog. But, first I wanted to mention a few things.

I've written extensively regarding the continued  .com  domination of all domain extensions and the Internet. You can read some of the posts here:

http://cybrands.blogspot.com/2014/02/the-dot-com-firewall.html

or here:

http://cybrands.blogspot.com/2013/09/is-dot-com-dying.html

or here:

http://cybrands.blogspot.com/2014/01/the-dot-com-kingdom.html 

or here:

http://cybrands.blogspot.com/2014/01/welcome-to-inter-niche.html

However the design of this post has more to do with the rest of the domain name extensions.  To show how the new domain extensions will fall neatly in line behind the .com behemoth.

This table of (global top level) domain registrations is from the Whois.sc (Whois Source) Domain Counts and Internet Statistics Website.

gTLD Overview for March 01, 2014

All New Deleted Transferred TLD
149,171,743 159,905 127,352 160,569 All TLDs
113,105,456 124,147 94,711 125,785 .COM
15,267,470 14,542 12,838 15,366 .NET
10,453,473 10,179 8,365 9,108 .ORG
5,790,637 6,236 7,269 6,032 .INFO
2,679,999 2,448 2,414 3,033 .BIZ
1,874,708 2,353 1,755 1,245 .US

This table of course does not include country code domain names, the new native language character set names,  and new gTLD domain extensions such as .guru and .holdings.

 Not to mention the upwards of 1300 new domain name extensions that are in the process of being released onto the global marketplace. That list is here:

http://cybrands.blogspot.com/2013/10/are-you-ready-for-new-internet.html

It's clear to see the patterns that are evident in the current domain registration paradigm from the above table. There are over 113 million .com domain names registered and .net is in second place with just over 15 million. One tenth of the registrations of .com.

Will any of the new extensions ultimately challenge .com for dominance in the domain name marketplace?

.guru?
.web?
.shop?
.wiki?
.blog?
.app?
.free?
.link?
.tips?

Some think that one of these extentions or even another could challenge .com and unseat the extension from its lofty perch above the Internet.  However, it's not likely and the reason is that all of the new extensions are going to be adjuncts to .com in one way or another.  Just as previous domain extenstions have been as such.

Now for the credit for my counterpart.

Below are examples of the types of "adjunct uses" that I see for the (upwards of 1300) new domain extensions as they are rolled out over the upcoming years: 

From:  telegraph.co.uk
3:00PM GMT 28 Feb 2014

"As the internet continues to develop new features, many companies plan to set up their own apps, blogs and wikis - so obtaining their own .app, .blog and .wiki domains is a logical step. The .feedback and .contact domains will also provide an intuitive address for particular web pages."

"The era of the singular 'web identity' is over," said Crawford. "As companies increasingly recognise the internet as the single largest source of new customers, even small businesses have moved beyond the position of buying one domain name for their website." 


I couldn't have said it better.