The difference between mediation and arbitration is that mediation is not binding, whereas arbitration is. Mediation is usually held before one mediator, oftentimes a former judge, who acts as a neutral party to help the parties begin to come together to try and settle the matter, and that mediator is not really interested in deciding who’s right or wrong.

In arbitration, it’s binding. The parties agree ahead of time that whatever the decision of the arbitrator will be, that will be final and not appealable, and there can be discovery process, there’s a lot of discretion left to the arbitrator as to how to proceed.

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Ordinarily, a domain name is not a trademark and cannot be registered with the United States Patent and Trademark Office. A domain name serves to identify a particular IP address, and is similar in that way that a building address or a street address operates in the physical world. In contrast, a trademark or service mark is a word, phrase, symbol, or a smell, or a design that is used to identify and distinguish goods and services provided by one person or company or manufacturer from another. Trademarks and service marks can be registered with the United States Patent and Trademark Office as well as state registration offices and international registration offices.

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The Uniform Domain Name Dispute Resolution Policy is an arbitration procedure designed to quickly and relatively inexpensively resolve disputes over domain names. A complaining party brings an arbitration complaint and alleges and hopes to prove that the domain name was registered in bad faith because it incorporates the trademark or service mark of the complaining party. The arbitrator is limited to the relief that it can grant to either, transferring the domain name to the complaining party, or canceling the domain name registration.

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The rights of a minority shareholder when there’s a breach of fiduciary duty or malfeasance by management really depends on the jurisdiction that’s applicable. For instance, in Delaware, the shareholders may be limited to breach of fiduciary duty claims, whereas in other states like New Jersey, there might be an oppressed shareholder statute that would allow the court to grant certain relief to oppress shareholders.

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The right of publicity gives a person the right to prevent others to use their name, likeness, voice, image, pictures, for commercial purposes. In some jurisdictions, like New York, it is required that a written release be obtained prior to using, for commercial purposes, somebody’s name or likeness.

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A litigation hold notice, depending on the jurisdiction, may require you to preserve all relevant evidence related to the claim or defense. If that is the case, you should designate who the custodians are of the potential relevant information and determine where that information may reside. If it is a former employee, it may be on devices or computers that that former employee worked on or used. If it’s current employees then, obviously, those devices. It may also be personal devices used by company employees, so it’s not limited to just company equipment.

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You have to look at the policy to determine if the coverage is there. But often times homeowner’s or renter’s insurance does cover liability for defamation, which includes libel and slander as well as invasion of privacy. If it’s not in that coverage and you have umbrella coverage, you should also check that policy as well.

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Digest by Richard L. Ravin, Esq.

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Ameripay, LLC v. Paylocity Corporation (formerly Ameripay Payroll, Ltd.)
Case No. D2007-0452

http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-0452.html

Decision in favor of Complainant, Ameripay, LLC, of New Jersey, represented by, Richard L. Ravin, Esq., of Hartman & Winnicki, P.C.

The Panel found that the Complainant had satisfied its burden of showing that the Respondent registered and used the domain name in fad faith under paragraph 4(a)(iii) of the Policy. In accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel ordered that the domain name be transferred to the Complainant.

It was alleged in the WIPO complaint, Complainant was founded in 1995. The Complainant had been using the mark “ameripay” in commerce continuously since at least as early as January 1, 1997. Complainant obtained rights in and to United States Patent and Trademark Office (“USPTO”) Service Mark Registration. Respondent acquired the domain name registration through assignment from a third-party, and registered the domain name in its name own name and address on January 22, 1999. Soon thereafter, Respondent began using the domain name. In or about 2003, Complainant started to become aware of instances of actual confusion of customers, suppliers, prospective employees and others due to use of Internet search engines, such as Yahoo and/or Google returning search results confusing Complainant with Respondent due to each company using the exact same mark and trade name and each company providing the same services There were also instances of reverse confusion. Hence, in July of 2003, Complainant filed suit in the United States District Court for the District of New Jersey alleging, among other things, trademark infringement and anti-cybersquatting under the Lanham Act. The suit was transferred to the United States District Court for the Northern District of Illinois, Northern District. Complainant pursued litigation spanning more than 2-1/2 years.

On February 15, 2006, the United States District Court for the Northern District of Illinois entered a Permanent Injunction and Judgment in Complainant’s favor against Respondent. The Permanent Injunction and Judgment provides that Respondent is “permanently enjoined from using the name ‘AMERIPAY’ as a trade name, trademark, or within a domain name anywhere in the United States.” The Permanent Injunction and Judgment was entered pursuant to Federal Rule of Civil Procedure 68, Respondent’s Offer of Judgment, and Complainant’s Acceptance thereof.

As a result of the Permanent Injunction and Judgment, Respondent changed the name of its corporation. Respondent was required by the Permanent Injunction and Judgment to cease all use of the name and mark, as well as the domain name, “ameripay.com”.

Respondent had continued to use the domain name “ameripay.com” for its e-mail operations after entry of the Permanent Injunction and Judgment and has continued use the trade name “Ameripay” in its registration information with the registrar Tucows, Inc.

Under Policy paragraphs 4(c)i and 4(c)ii, Respondent does not have a legitimate interest related to the offering of goods or services or in common usage as it is not permitted to use the domain name or a name corresponding to the domain name in any manner, according to the Permanent Injunction and Judgment.

Richard L. Ravin has completed a two-year term as Chair of the New York State Bar Association’s 2,000-plus-member Intellectual Property Law Section in June 2006. Mr. Ravin is the Section’s past (founding) Co-Chair of the Internet Law Committee. He heads the Internet and Intellectual Property Law Practice of Hartman & Winnicki, P.C., with offices in Paramus New Jersey and New York City. Mr. Ravin also practices Commercial Litigation, Bankruptcy Law and Business Law.

Mr. Ravin is a frequent speaker for the NJ and NY State Bar Associations on legal issues pertaining to the Internet, Technology, and Intellectual Property (e.g. trademarks, copyrights, trade secrets, patents). In May, he was Panel Chair for a Continuing Legal Education presentation to NJ and NY lawyers about Internet privacy issues, the new Federal CAN-SPAM Act, liability for music file-sharing, online defamation suits against anonymous authors, and use of false and misleading domain names and trademarks. Recently, Mr. Ravin was Program Co-Chair of the “U.S. Copyright Office Comes To New York” conference at the Cardozo School of Law, as well as a panelist, discussing liability for music file-sharing under the Digital Millennium Copyright Act. Mr. Ravin’s articles on technology law are frequently published, and recently include: “Lanham Act For Lenders”, in New Jersey Lawyer Magazine (February 2004), and “Contributory Copyright Infringement For Music File Sharing: Grokster v. Aimster”, State Bar News, (November 2003). Mr. Ravin’s articles are available on his Web site: www.ravin.com, including an article about anonymous online speech and the Eye on Emerson case.

In recent years, Mr. Ravin successfully defended “John Doe” defendants in the Eye on Emerson case, in which former members of the Emerson Borough Town Council and other public figures sued the anonymous online posters to a community Web site for alleged defamation. The court granted Mr. Ravin’s motion to quash the subpoenas issued to the Internet Service Provider of the electronic chat room on First Amendment grounds, thereby denying the politicians the ability to learn the identities of their critics. Mr. Ravin convinced the court that the First Amendment protects not only the right to speak freely, but anonymously as well, and that before Plaintiffs have the right to seek the identities of their critics, they must prove that the statements made online were defamatory.

Mr. Ravin is admitted to practice law in New Jersey, New York, Florida and the District of Columbia, as well as several U.S. District Courts. He is a graduate of Syracuse University’s Newhouse School of Public Communications (1978) and earned his Juris Doctor degree from Shepard Broad Law Center, Nova Southeastern University (1986), and thereafter, clerked for the Presiding Judge for Administration of the Appellate Division, New Jersey Superior Court.

Mr. Ravin is a member of the New Jersey State Bar Association’s Internet and Computer Law Committee and the American Bar Association, and is a Master of the John C. Lifland Intellectual Property Law Inn of Court.