|IIPA Comments on
Intellectual Property Rights in FTAA
|8/22. The International
Intellectual Property Association (IIPA) submitted comments
[PDF] on the draft consolidated text for the Chapter on
Intellectual Property Rights of the Free Trade Area of the
Americas (FTAA) Agreement to the Trade Policy Staff Committee
(TPSC) of the USTR. See
web section on the FTAA and USTR
summary of IPR position. August 22 was the deadline to
submit comments to the USTR. See, USTR notice
in the Federal Register of July 12, 2001, requesting public
comment. See also, IIPA
Copyright. The IIPA comment states that the
"proposed FTAA should contain the highest levels of
substantive protection and enforcement provisions possible.
This means that the IPR Chapter should, at a minimum: (a) be
TRIPS- and NAFTA-plus, (b) include, on a technologically
neutral basis, the obligations in the soon-to-
enter-into-force WIPO Copyright and Performances and
Phonograms Treaties (WCT and WPPT), and (c) include modern and
effective enforcement provisions that respond to today's
digital and Internet piracy realities."
Anti-Circumvention. The IIPA comment continues that
"A provision must be included which tracks the WCT and
WPPT obligations on making illegal the circumvention of
technological measures and ensures that devices, services and
components thereof are fully covered. Adequate and effective
legal remedies, both criminal and civil, must be incorporated
into the enforcement text. This is an essential element of a
protection system that is adapted to the digital and Internet
Age, where new forms of piracy are already harming the
copyright- based industries."
|8th Circuit Affirms in
Advanced Communications v. MCI
|8/23. The U.S.
Court of Appeals (8thCir) issued its opinion
[PDF] in Advanced
Communications v. MCI. Advanced Communications
(AC) had once been granted by the FCC a construction permit
for a Direct Broadcast Satellite (DBS) system; it had also
been allocated various channels at different orbital locations
as part of such a system. However, in 1995, the FCC's International Bureau denied
AC's request for a second extension of time in which to
develop its DBS system for lack of due diligence. AC appealed
to the full Commission, but lost. The FCC then canceled the
permit and reclaimed the orbital locations and channels. AC
sought review by the U.S. Court of Appeals (DCCir), and lost
AC then filed a complaint in Arkansas state court against MCI
alleging tortious interference with contract. MCI removed the
case to U.S. District Court (EDArk). During the FCC's
consideration, MCI had written a letter to the FCC urging it
to cancel and re-auction AC's orbital locations and channels.
The District Court ruled for MCI on the pleadings. The Appeals
Court, in a brief opinion, held that AC is collaterally
estopped from suing MCI on a theory of tortious interference
by the decision of the U.S. District Court (DCCir).
in PETA v. Doughney re cybersquatting, 8/23 (HTML, USCA).
in Advanced Communications v. MCI re DBS, 8/23 (PDF, USCA).
re lack of information security at the Commerce Department,
8/23 (PDF, GAO).
to USTR re IPR and FTAA, 8/22 (PDF, IIPA).
|4th Circuit Affirms
Judgment Against Parody Web Site Operator
|8/23. The U.S.
Court of Appeals (4thCir) issued its opinion
v. Doughney, a domain name registration
dispute involving claims of service mark infringement,
unfair competition, dilution and cybersquatting. The Appeals
Court affirmed the District Court's judgment that a domain
name used for a non commercial parody web site must be
transferred to the mark holder.
Background. Michael Doughney registered the domain
peta.org with Network Solutions in 1995. He then created a
parody web site titled "People Eating Tasty
Animals," which advocated eating meat, hunting, and
wearing fur. People for the Ethical Treatment of Animals was
not amused. Moreover, it had registered the PETA mark in 1992.
See, Trademark Registration No. 1,705,510. PETA demanded that
Doughney transfer the domain name to it. Doughney offered to
settle. PETA now holds the www.peta.org
domain; Doughney has moved his parody site to www.mtd.com/tasty/.
District Court. PETA filed a complaint in the U.S.
District Court (EDVa)
against Doughney in 1999 alleging service mark infringement
U.S.C. § 1114 and Virginia common law, unfair competition
U.S.C. § 1125(a) and Virginia common law, and service
mark dilution and cybersquatting under 15 U.S.C. § 1125(d).
The District Court granted summary judgment to PETA on all
three claims. This appeal followed.
Infringement. The Appeals Court affirmed the summary
judgment on service mark infringement. Doughney argued that,
while PETA holds the PETA mark, there was no service mark
infringement because his use of the mark was not in connection
with goods or services, and because there was not a likelihood
of confusion. The Court held that "Doughney need not have
actually sold or advertised goods or services on the
www.peta.org website. Rather, Doughney need only have
prevented users from obtaining or using PETA's goods or
services ..." Doughney argued also that there was no
likelihood of confusion because once web users visited his web
site, they would realize that it was a parody. The Court,
however, held that its analysis should be limited to the
domain name only, and not include the content of the web site.
It conceded that "the website's content makes it clear
that it is not related to PETA". However, it wrote:
"The domain name peta.org simply copies PETA's Mark,
conveying the message that it is related to PETA. The domain
name does not convey the second, contradictory message needed
to establish a parody -- a message that the domain name is not
related to PETA, but that it is a parody of PETA." The
Court did not address dilution.
Cybersquatting. The Appeals Court affirmed the District
Court's grant of summary judgment to PETA under the recently
enacted Anticybersquatting Consumer Protection Act (ACPA),
codified at 15 U.S.C. § 1125(d). Dougherty argued that the
ACPA should not be applied retroactively to his acts in 1995,
that he did not seek financial gain, and that he did not act
in bad faith. The Appeals Court rejected all arguments. The
Court held that the ACPA does apply retroactively; Dougherty's
statement that PETA should "settle" with him
constituted seeking financial gain; and, based on application
of the nine good faith criteria listed in the ACPA, Dougherty
acted in bad faith.
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|GAO Releases Report on
Security Weaknesses at Commerce Dept.
|8/23. The General Accounting
Office (GAO) released a report [PDF]
titled "Information Security: Weaknesses Place Commerce
Data and Operations at Serious Risk". It finds that the Department of Commerce's (DOC)
information systems are not secure. The report was prepared by
Robert Dacey and others at the GAO at the request of Rep. Billy Tauzin
(R-LA), Chairman of the House Commerce Committee.
The report concludes that "Significant and pervasive
computer security weaknesses place sensitive Department of
Commerce systems at risk. Individuals, both within and outside
Commerce, could gain unauthorized access to these systems and
thereby read, copy, modify, and delete sensitive economic,
financial, personnel, and confidential business data.
Moreover, intruders could disrupt the operations of systems
that are critical to the mission of the department."
On August 3, the House
Commerce Committee's Subcommittee on Oversight and
Investigations held a hearing titled "How Secure is
Sensitive Commerce Department Data and Operations? A Review of
the Department's Computer Security Policies and
Practices." Dacey also testified at that hearing, along
with witnesses from the DOC. See, prepared
testimony of Dacey, prepared
testimony of Johnnie Frazier (DOC Inspector General), and prepared
testimony of Samuel Bodman (DOC Assistant Secretary for
See also, opening
statement of Rep.
Jim Greenwood (R-PA), the Chairman of the Subcommittee,
statement of Rep. Billy Tauzin, from the August 3 hearing.
|Monday, August 27
|8:00 AM. The USITC will
hold begin its evidentiary hearing in its Section 337 investigation
of certain Ink Jet Print Cartridges. HP filed a complaint on
December 22, 2000, alleging that Microjet Technology (Taipei,
Taiwan), Printer Essentials.com (Reno, Nevada), Price-Less
Inkjet Cartridge Company (Port Charlotte, Florida), Cartridge
Hut and Paperwork Plus (Sun City, California) and ABCCo.net
(Port Charlotte, Florida) are in violation of Section 337 of
the Tariff Act of 1930 by importing into the U.S. certain ink
jet print cartridges and components thereof that infringe
patents owned by HP. (Inv. No. 337-TA-446). Administrative Law
Judge Paul Luckern will preside. Location: Courtroom A, ITC
Building, 500 E Street SW, Washington DC. See also, USITC
|Tuesday, August 28
10:00 AM - 12:00 NOON. The FCC's Advisory Committee for the
2003 World Radiocommunication Conference will hold a meeting.
Location: Commission Meeting Room, 445 12th Street, SW, Room
TW-C305, Washington DC.
|8/23. The U.S. Court
of Appeals (DCCir) denied the FCC's request for a stay in
proceeding. The FCC has stated that it may petition the
Supreme Court for writ of certiorari. NextWave obtained
spectrum licenses at FCC auctions in 1996, but did not make
payments required by the installment plan, and filed a Chapter
11 bankruptcy petition. The FCC cancelled the licenses. The
U.S. Court of Appeals (DCCir) ruled in its June 22, 2001, opinion
that the FCC is prevented from canceling the spectrum licenses
by § 525
of the Bankruptcy Code.
8/22. The U.S. Trade and
Development Agency (TDA) gave $495,060 to the Ministry of
Interior and Administration of Poland to conduct a feasibility
study on rebuilding the design of its telecommunications and
data transmission networks. See, TDA
8/23. The Center for Democracy
and Technology (CDT) announced that The Global Internet Policy
Initiative (GIPI), a joint project of the CDT and Internews, signed a
Memorandum of Understanding with the United Nations
Development Program that "provides a framework for
cooperation between GIPI and UDNP offices worldwide towards
the promotion of sound Internet and information technology
policies." See also, August
14 Internews release.