Internet Laws - Assignment Example

Internet Laws Answer to Question A ‘DBA’ (Doing Business As) or the invented one gives to his business becomes the lawful under which that particular business operates. It is mandatory that a person who starts a business should have a DBA. The person who starts a business under an invented name has to submit an application for a DBA certificate in the district where ever the trade is actually situated in order to confirm that the business name lawfully belongs to that person. The legal name belongs only to the person who has the right to implement any agreements signed under the said business name. In addition to this, the DBA certificate must be obtained to ensure that other businesses do not take the same name as that of the business in question. Even though not mandatory; registering a trademark would be beneficial. This offers him the protection against using the same name for another business. When a person chooses a business name which exists earlier; he has to make modifications to it before establishing the business in market, the location of business, the kind of trade done or entrepreneur’s name. An apparent distinction has to be done between the existing name and the new business name. “When choosing a name that already exists, you can legally use a universal name like "ABC Florist" as long as you change any direct associations between the business and a sole proprietor or owner already attached to a different business in another state. For example, you could not name the business, “Maggy K. Smith Florist” if that name already exists in another state. However, you could name it ‘DEF Florist’." (Gaston 2010). Add in the place of the business along with the name. Legally a person can use an existing registered name, if few alterations are made to it such as including the name of the business location. The services of a solicitor may be required for registering a domain name or for enforcing such a privilege over an existing service provider. The main aspects are in terms of the procedures, likely cost, time scale, and the chances of success. Procedures: The procedures are quite simple. It is necessary to seek out a domain name, registrar and complete the necessary formalities. There are registrations being undertaken free of cost and others for nominal costs. In this case, it is seen that the name of Bradford Models already exists, although it is not indulging in the business of wooden toys as what Maggie May (MM) is doing. Moreover, neither these businesses are registered with the appropriate authorities. Since the identical business is not a registered domain, prima facie, there is no rule that could prevent MM for operating this domain; since this is a public property now. However, in order to prevent the need for long drawn expensive Court proceedings for gaining domain registration, it is better for “MM to seek help from The Uniform Dispute for Domain Names Resolution Policy (UDRP) for consideration of her product for the website domain registration.” (Domain name disputes, 2008). Coming to the next part, it is evidenced that if defamatory materials have been posted in the website, MM could raise a question of defamation. But then, it is also necessary to know exactly who is behind the defamation and how action or lawsuits could bring about against the owners of the domain or the providers. The time required for registration of the domain would depend upon several factors including the search for same sounding names or similar names that have already been registered or in the process of registration. Thus, only after the full survey is conducted and the agency is convinced, it would be the domain registration that is being carried out. Besides, there may be many requests for domain registration that needs to be undertaken. In the case of The Traditional Cat Association Inc. et al. v. Laura Gilbreath et al, the courts had to decide on the “Plaintiffs cause of action for unfair competition that is alleges with a myriad of activity on the part of defendants which they contend amount to unfair competition.” ( Certified for partial publication court of appeal fourth appellate district division one state of California, 2004, p.18). However, in this case; the courts decided to strike down the case due to lack of evidence on the part of the applicants. It has been mentioned earlier that the Uniform Dispute for Domain Names Resolution Policy (UDRP) could be sought for tackling disputes in arena of domain registration and issues that arise thereafter. Besides, there is also need for seeking assistance from legal precedents and decided case laws in the area of domain infringements and allied matters. However, courts also need to exercise discretion and sagacity while determining cases of this nature. This is because while the underlying nuances of cases may seem to be similar, the surrounding circumstances and situations under which infringements occurred may be very different and thus direct application may not always be feasible, appropriate, or reasonable. Under such circumstances, the courts, arbitrators or mediators need to exercise the required discretion for fulfilling the business commitments in terms of internet. Domain provision and the applicant needs to be fully aware of his part of the bargain with regard to bearing costs, meeting the needs of domain providers and such other aspects that need to be considered from time to time. There is also need to make necessary provisions for meeting the fees and payables for the domain in terms of maintenance and operations. Besides the question of future litigation needs should also be studied by MM. Once she is able to register her domain in the name of her firm, she would gain exclusive rights and would also be safeguarded from domain manipulation and cheating at the earliest. There are many aspects that impose upon business and internet or domain registration. Answer to Question (b): The common law of passing off was documented as a branch of the regulation of dishonesty in the nineteenth century. However, above time has steadily gone forward and augmented its scope to get together in altering commercial forms. Section 10 of the Rule have specifically documented and conserved the common law act, offering security to unregistered trade symbols set up by common commercial exploit. Misrepresenting unintentionally is also a sufficient ground to draw liability. The criteria for proving misrepresentation is the confusion created to the customer. The law of passing off analyzes the damage caused by this to an applicant. In order to prove the damage caused to the plaintiff, it is enough if a likelihood of injury is proved. “The common law action for passing off allows for broader scope of protection than is available for registered marks or distinguishing guise under the Act. However, protection will be limited to geographic area where the get-up has become distinctive. This may not be meaningful for a developed national franchise but could be critical for a business looking to develop a franchise model.” (Passing of and the protection of trade dress in franchising, n.d.). An unregistered trade symbol or a mark at common legislation or in the Rule will be restricted to geographic region and where the goodwill of the business has been founded. “Three recent developments in the area of trade work infringement and counterfeit goods, First, patteren of infringement have changed over the last couple of decades and on the whole, levels of infringement have been rising, Second, and fuelled by the development and promotion concept.” (Vagg 1995, pp.75-91). There is a difference in between domain name system and trademark act. Domain name are the exclusive address allocated to the computers that are linked to the Internet. With no such exclusive address; computers could not send data to the accurate place. There is mainly four facets domine name system. Firstly, the domain names speak a little bit on the subject of the natural world or place of the domain system registrant. Domine name system comprises either a general peak point name or a state code like, .uk designed for the United Kingdom, .it designed for Italy etc… Secondly, it is linked to the lack of association among address and place for the reason that the official recognition of registrars is carried out by a sole body. Thirdly, inside every high-point domine name there cannot be two similar names. Lastly, domains names are recorded on a first arrive, first provided foundation. “The Domain Name System (DNS) in 2005 serves a global Internet far larger and more diverse, in users and in uses, than the relatively small homogeneous network for which it was first deployed in the early 1980s. To meet the needs of this expanded and enhanced Internet, the DNS has developed into a complex socio-technical-economic system comprising distributed name servers embedded in a multilayered institutional framework.” (The domain name system: Current state, 2010). The consistent Domain Name squabble in the decision of UDRP; that is a managerial practice that permits certain quarrels relating to offensive domain registers in the general higher point domain. The domain name system is alike or confusingly alike to a trade name or service mark in which the appellants has civil rights, the registrant have no civil rights or lawful benefit with regards to the domain name .The domain name have also been recorded and a person make use of this in a bad conviction too. Case laws: The early expansion of the rule of passing off was sum up in the case law, Consumers Distributing v. Seiko Ltd., This case stress the stress among the two legal formation of an act for passing off. Firstly, it acts as a remedy for the breach of a right of ownership in a trade mark and name. Secondly, it acts as a remedy to grievance from deceitful rivalry. In this case; the court completes the purpose of the accurate foundation of the action to guard an ownerships right to the benevolence or goodwill of the business establishment. The Canada Supreme Court constantly declared that the legislation of passing off and Trade-marks Act have a twofold job to guard both the producer of goods or services and the relevant consumers of the goods or services. Fundamentals of the act found in the Ciba-Geigy Canada Ltd. v. Apotex Inc case In this case the higher court summarized a three main division of categorization of the part of passing off. Such as, a victorious applicant must demonstrate the survival of goodwill in deference of the uniqueness of the manufactured goods, dishonesty of the community by reason of a misrepresentation; and real or possible harm. This classification has been newly established by the unanimous legislation in the case of Kirkbi AG v. Ritvik Holdings Inc. “However, in Jif Lemon, from which the characterization of the three constituent elements was adopted by the Supreme Court in Ciba-Geigy, the House of Lords strongly indicated that actual damage was a prerequisite to making out the cause of action at trial. The cases have identified numerous heads of damages that a plaintiff might demonstrate, but Christopher Wadlow has categorized these into two distinct branches; destruction and diversion.” (Passing of and the protection of trade dress in franchising, n.d.). The aspects of domain laws are definitely of great importance in this internet age as is seen from the plethora of court cases and legal impacts that impinge upon this aspect of electronic business. Finally, it could be said that both the applicants and the courts need to be fully sure about their stands in matters relating to Domains in their own interests. Reference List Certified for partial publication court of appeal fourth appellate district division one state of California, 2004. [Online] p.18. Available at: http://www.internetlibrary.com/pdf/Traditional-Cat-Association-Gilbreath-Cal-Crt-App.pdf [Accessed 16 April 2010]. Domain name disputes, 2008. [Online] Out-Law.com. Available at: http://www.out-law.com/page-5700 [Accessed 16 April 2010]. Gaston, C.R., 2010. How to choose a business name that already exists in another state. [Online] eHow. Available at: http://www.ehow.com/how_5017449_choose-already-exists-another-state.html [Accessed 16 April 2010]. Passing of and the protection of trade dress in franchising, n.d. [Online] Famous Entrepreneur Advice. Available at: http://www.evancarmichael.com/Franchises/704/Passing-Off-and-the-Protection-of-Trade-Dress-in-Franchising.html [Accessed 16 April 2010]. The domain name system: Current state, 2010. [Online] The National Academies Press. Available at: http://www.nap.edu/openbook.php?record_id=11258&page=79 [Accessed 16 April 2010]. Vagg, J., 1995. The policing of signs: Trademark infringement and law enforcement. [Online] SprinkerLink, European Journal on Criminal Policy and Research, 3(2), pp.75-91. Available at: http://www.springerlink.com/content/y4028587g7l40q47/ [Accessed 16 April 2010]. Read More