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12A Internet 'trademark' rulings could carry massive implications By Howard Riell /Contributing writer ntellectual property law — involv- ing trademarks, domain names, Internet gaming, the delivery of products and services through mo- bile networks and more — continues to change and evolve along with society's technological capabilities, and the im- plications for business and thus for us I could be staggering. What's changing "depends on what area you're looking at," says John Krieg- er, a partner in the Intellectual Property Group of Phoenix-based Lewis and Roca LLP. "If you're looking at trademarks, the real issue is looking at key words: wheth- er or not key words are something that people can just buy, or if it's something that is really going to be a trademark in- fringement." At present, he explains, there exists "a split in the circuit (courts) as to whether or not you can go out and purchase the key words of your competitor's trade- mark. For example, Rosetta Stone is one of the big ones right now. They just recently had their victory in front of the Fourth Circuit." (In late June, Google Inc. denied hav- ing made unlawful use of Rosetta Stone Inc.'s trademarks in a federal court fil- ing in Alexandria, Va. Rosetta Stone, the maker of foreign language software, has claimed that Google sold keywords us- ing its trademark — specifically, "Rosetta Stone" and "Rosettastone.com" — to ri- vals and counterfeiters. Some of Rosetta Stone's trademark-infringement claims, which were tossed out in 2010 by a fed- eral court, were restored this past April by a federal appeals court.) In the past, says Krieger, Google Ad- Words have been found not to be a trademark infringement, and the words purchased didn't belong to the competi- tor. "Now another court says they do, so it's going to be an interesting topic: whether or not AdWords — which is something that people don't necessarily see, that only computers see to bring you up in search engine rankings — are going to be Another hot-button issue going for- ward will be the expansion of the In- ternet with the new top-level domains that have been applied for, Krieger says. "There are 2,000 of them. In another few years the Internet could be a very different place. You'll have more than just .com, .net and .org. You could have things such as .toshiba, .walmart, .law Patent Pilot Program W Roca, that As mobile phones and technology increase "it's easier to have delivery of products to mobile devices," Allen notes. "There are always going to be issues of copyright to make sure that copyright laws are enforced, and to make sure that pirates don't infringe on copyrights by acquiring software or code or product that isn't properly licensed." In essence, and .stocks. There are all sorts of them he adds, "it's the same issue that we have out there that could get approved." est Allen, a partner in Lewis and says "the biggest change, probably, is the preeminence of patent litigation for Nevada, (which) is one of the states in the country whose federal district court is part of a patent pilot pro- gram." On Jan. 5, 2010, Congress enacted a bill "to establish a pilot program in certain United States district courts to encourage enhancement of exper- tise in patent cases among district judges" (H.R. 628)." This will be accomplished by routing such cases to judges who have expressed an interest in presiding over patent mat- 14 district courts in the country that will participate in the patent pilot program, which commenced on Sept. 19, 2011. By and the newly adopted Local Rules for Patent Law cases, Allen recently wrote in Nevada Lawyer magazine, "the Dis- of choice for filing patent infringement actions due to enhanced familiarity and efficiencies in handling patent cases." Allen, who served on the U.S. District Court District of Nevada's Local Rules committee and was one of the principal authors of the state's new local patent rules, says that when it comes to gaming on the Internet, trademark and copy- right law doesn't change. "The only thing on the Internet when we have movies and songs that are illegally pirated and distributed. That same issue potentially, I suppose, could start to occur as there is distribution to mobile devices." Momentum for the issue is building. A recently released study found that an in- creasing number of mobile phone users are tapping into their phones not just for surfing the Internet but for doing most of their online browsing. According to Pew Internet, 55 percent of cell phone owners used their devices to go online, up from just 31 percent three years ago. One finding that was not surprising was that younger Americans (ages 18 to 29) were more likely to do most of their web browsing by phone. As new marketing channels such as ters. Nevada was selected as one of only mobile devices emerge, Allen suggests, "there really becomes a new field of potential copyright infringement. It be- comes basically a new territory, if you participating in the Patent Pilot Program will, for copyright issues to arise. Where before you might only have to worry about something like, 'Did someone make a copy of my picture on a copy trict of Nevada could become a district machine?' — and then it expanded to, 'Did someone make a copy of my song or movie on the Internet?' — now it's, 'Did someone steal my application or one like my application or my code and dis- tribute it to mobile devices?' " Thus, the issue really remains the same: copyright law is still designed to protect original expressions of any idea. "We now simply have more and more places where we can publish those considered a trademark infringement." The implications for the future, he con- cedes, can be huge. "I think it's going to continue to be one of those issues that people are really looking at." West Allen Lewis and Roca Jennifer Craft Gordon Silver John Krieger Lewis and Roca that is going to change is regulations that dictate what gaming can be allowed on the Internet," says Allen. "We're not even doing intellectual property law that gov- erns gaming. It's gaming law." ideas," Allen says, "and as we increase the areas in which we can publish those ideas there is increased chance for peo- ple to infringe copyright law." .whatever " There have been changes that are not specific to Nevada but dealing with fed- eral, national issues," says Jennifer Craft, a shareholder with law firm of Gordon Silver and the chairperson of its Intel- lectual Property and Entertainment & Sports Departments. "The big hot-button issue right now is being able to register new top-level domain names. So instead of .com or .biz or .info companies are able to become their own registrar and register or apply for, for instance, .sony or .intuit, and have their own company names out there. That's a big issue right now. They just closed the window in ac- cepting applications for those types of domain names." The issue is a relatively recent on, Craft explains. "Before, you would have more of a generic top-level domain name. They had been accepting applications for the past year or so, and the applica- tion process just closed." The issue is a potential powder keg because companies such as Sony and Intuit want to be the first to have that kind of recognition on their domain names, Craft says. "But also a lot of my clients actually are concerned that someone else will take their names and try and be a registrar; that they will want to take .whatever and register their com- pany names. Or if a competitor registers .computer, for instance, whether or not they'll be able to have access to that do- main name." Craft practices primarily in the areas of domestic and international trade- mark and copyright prosecution, licens- ing and enforcement. She also resolves trademark, copyright, and domain name disputes, including the resolution of disputes over contested trademarks before the Trademark Trial and Appeal Board and appeals before the Copyright Office and enforces clients' intellectual property rights on the Internet.