Tackling Domain Disputes

The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a process established by the Internet Corporation for Assigned Names and Numbers (ICANN). Established in 1999, it was set up to help people resolve domain name disputes. Since its inception, more than 60,000 domain complaints have been filed with the UDRP. Domain name disputes, specifically as it relates to unauthorized trademark usage has become a growing problem over the years. Often, companies will start out buying the most valuable top level domain name (TLD), such as a .com. But, they will frequently forego variations of that TLD due to budgeting constraints. As their brand grows, other users will sometimes snap up these other domain names and use the goodwill associated with the original company’s brand to generate revenue for themselves. Unapproved domain names such as these can be used to promote pay-per-click, competing for websites, inappropriate content, viruses, and even employment scams. All of these potential situations can end up damaging the reputation and/or goodwill of the legitimate business and brand owner. Without UDRP actions, a website owner is essentially stuck chasing a domain owner that can effectively dodge services and continue to wreak havoc. This is where the UDRP comes in handy.

 

The UDRP allows owners to file a complaint, and if successful, have a domain name transferred, canceled or suspended fairly inexpensively. The policies in place are typically favorable to the original trademark owners and are the oldest and most popular policies. When disputes arise, trademark owners have won more than 85% of their cases.

Prior to UDRP, the majority of trademark-based domain-name disputes had to be resolved by agreement, court action, or arbitration before a registrar would agree to cancel, suspend, or transfer a domain name. Disputes that arise from abusive registrations of domain names (For example, cybersquatting, where an individual holds the rights to a well-known name for no other reason than a potential resale profit) may be addressed by expedited proceedings. The trademark holder initiates this by filing a complaint with an approved dispute-resolution service provider.

To utilize the policy, a trademark owner should either

 

  1. file a complaint in a court of proper jurisdiction against the domain-name holder
  2. in instances of abusive registration submit a complaint to an approved dispute-resolution service provider

 

A trademark attorney experienced in UDRP complaints can help resolve these matters for you. For example, if someone is cybersquatting your domain, an attorney can locate the registrant and resolve their competing practices with determination. They can also sue under the Anti-Cybersquatting Consumer Protection Act (“ACPA”). They can also use ICANN and avoid litigation by, any person that alleges that a domain name is identical or confusingly similar to a trademark or service mark where they have rights. This also applies when the domain name owner has no legitimate interest in the domain name, and the domain was registered and is being used in bad faith.

 

 

While the frustration of a domain dispute can feel overwhelming, consulting legal advice can ease the process. Intellectual property legal counsel will advise you on the best course of action to protect and defend the assets you worked hard to create.

 

5 Employee Termination Tips

Terminating an employee is one of those uncomfortable topics that no employer wants to deal with, but every employer will likely experience at some point. It is common to encounter employees who are not the best fit and sometimes flat-out difficult to work with. Disgruntled employees can cause quite the mess for business owners, especially if terms were not explained clearly during hiring, or not addressed completely at termination. It’s important to remember that there is a difference between employment laws in your state vs federal employment laws, so always consult both and adhere to your state’s requirements. If in doubt, call your lawyer. Below are five general strategies to help you effectively terminate an employee.

 

  1. Know When It Is Illegal to Fire

The majority of states apply an at-will default employment status to employees (see below). While at-will status does allow you to terminate for pretty much any reason at all, you cannot under any circumstances fire an employee for an illegal reason. Generally, if you fire someone because of their age, race, gender, gender identity (in states like California), sexual orientation, religion or disability, the termination will likely be deemed illegal due to unlawful discrimination. Additionally, if you employ a certain number of employees, some states require you allow them to take a leave of absence for family, medical, or military purposes. This also goes for allowing your employees to vote, and you cannot terminate someone for reporting potentially illegal activity. This is called retaliation. Again, each state has its own set of regulations that interplay with the federal ones, so it’s important you either know how both work, or contact your attorney to make sure you’re not terminating an employee in violation of the law.

  

  1. Understand Whether Your Employees are At-Will or Not
    As previously mentioned, many states’ default employment status is “at-will.” “At-will” employment means an employer can terminate at any time, for any reason, or even without one. Every state (excluding Montana) allows employers the option of using this policy, and may even be the default without something in writing to the contrary. When making an offer of employment, it’s important to not put anything in writing that could lead an employee to believe they have an employment contract that supersedes the default at-will policy. An at-will policy allows the employer more flexibility in terms of terminating employees when it deems necessary.

  

  1. Document Performance Issues
    Even with an existing “at-will” policy, it can be crucial for employers to keep an accurate record of any and all performance issues and performance reviews at the time of occurrence. Creating a history of events to pull from when terminating will often help employers defeat any potential claims that the termination was unlawful. Performance issues can include but aren’t always limited to, absenteeism, tardiness, client service issues, behavior requiring disciplinary action and interventions. Keeping this kind of documentation in an employee’s file is a great way to stay protected and aid you in the actual termination process. Sometimes, significant performance issues warrant termination for cause, as opposed to at-will, which can be provided to the employee in writing.

 

  1. Understand Employee Rights Post-Termination
    Employees may be entitled to certain benefits, even after termination. This may include but is not guaranteed to include, a continuation of medical coverage, unemployment insurance, and a vested retirement plan.

 

If you have 20 or more employees, the federal law enforces COBRA. If you maintain a group health plan, you are required to provide coverage for spouses, dependents and the terminated employee. If you employ under 20 people, check with your state on the requirements. If an employee is eligible for unemployment insurance, you are often required by law to make them aware of their eligibility.

 

 

  1. Pay All Wages/Benefits Due to Terminated Employees
    Employers must pay employees their earned, unpaid wages when terminating them. You cannot simply refuse to pay the employee what they’re owed, because they no longer work for you. However, the laws regarding precisely when an employee needs to be paid vary depending on the state you are in. In some states, you are not required by federal law to give a final paycheck immediately at termination, sometimes including unused vacation days. However, in some states, like California, all earned, unpaid wages are due at the time of termination if the employer is the one terminating. If the employee gives no notice and quits, the employer has 72 hours to make the payment. This is why it’s always important you either know the laws yourself or have a specialist (like a lawyer or human resource worker) guide you on your state’s regulations.

Read the Fine Print: Why Contract Review is Crucial for Businesse

Contracts are an inevitable part of doing business. They protect both the business as well as the other party to the contract. When considering contracting with another party, it’s always advisable to consult an attorney and avoid DIY contracts. Sure, you can find templates online or skim read through a document and hope for the best, but chances are you won’t be entirely sure you’ve got a good contract, and that is not a risk worth taking.

 

Quality attorneys know how to create agreements that both communicate the specific intent of the parties as well as avoid any potential ambiguities. This helps create a solid understanding and prevents disputes over what the parties “really meant” later on down the road. This is critically important when being asked to sign a contract. If you don’t exactly know what certain provisions say, but you sign anyway, you will still be held to those provisions. Lack of understanding is not a reason to cancel or modify an agreement. More often than not, caveat emptor or buyer beware applies.

 

Having good legal counsel on board prior to the execution step is also important because it will help you better set each party’s expectations before it becomes time to sign. The last thing anyone wants is a bunch of eleventh-hour changes because you didn’t run it by your attorney first. An attorney has trained for the unexpected moments and can offer guidance relating to problem areas and ensure your interests are protected.

 

There are countless reasons why including your lawyer in the contract review process is important and helpful, whether you are presenting it to another party or are on the verge of signing yourself. A business attorney is seasoned in the world of contracts and the investment could save you from future legal disputes and potential loss.

Protecting E-books Through Copyright

One of the hottest trends in information consumption comes in the form of e-books. Almost every time you are online you see a new one surface regarding how to build an online business, a newly released memoir, or even a recipe book. With all this information readily available online – not to mention easy to copy – how do you keep your original content protected yet still available? Copyrighting your materials can help prevent theft from being a part of your story.

 

Writing any kind of book takes hours of hard work, research, and crafting. The minute it is posted to the internet, it is at risk for infringement. We see this issue frequently, and if you are posting content you created to the internet, it should be protected. The only way to solidify your ownership is by way of a registered copyright. Copyright is an incredibly complex area of the law. But very basically, it allows an owner (or his/her authorized representative) of original materials to exploit (publish, profit from, perform, print, record, etc.) that material.

 

An owner of the original material does not need to register his/her copyright. Copyright exists as soon as the original material becomes fixed in a tangible medium. However, federal registration solidifies that ownership. Registration creates a constructive notice and permits an owner to assert his/her ownership rights against another person (i.e., in court). Whereas simply claiming copyright ownership only prevents copying. In short, without registration, owners are left with very little “teeth” to bite back against people stealing from them. Moreover, a federal registration acts as proof that you, in fact, own the work, whereas, without it, you’d be required to prove (with evidence) that you created the work first (i.e., before the theft occurred). While this seems easy, sometimes it can be challenging, particularly if the competing works were published close in time.

 

Traditionally, publishing houses would register the copyright on behalf of the owner, per the publishing contract. However, now that self-publishing has become increasingly popular, it is often left to the owner to register the work(s) themselves. This isn’t always readily apparent or disclosed by self-publishing companies and can leave owners exposed without even realizing it.

 

Copyright disputes often become expensive very quickly. It pays to protect yourself early-on, as federal copyright registration is relatively inexpensive. Unsure about your original work? Consult an attorney that specializes in copyright today.

How to Avoid Discrimination in The Workplace

Discrimination is illegal in the workplace and something every employer needs to be aware of. There are both federal and state laws in place that address issues of discrimination and employers should take not to ensure they’re not getting themselves into any hot water. Generally speaking, employers should avoid discrimination based on sexual orientation, religion, disability, gender or ethnicity while hiring, firing, promoting, or determining compensation. Employment laws are tricky, and no one industry is treated identically to another. Similarly, federal and state laws often require different things, so it’s important to speak with a well-versed employment attorney to help your business made these crucial decisions. Below are some overall guidelines to help keep you out of trouble.

One of the first things you can do to get ahead of potential discrimination claims is to learn your Federal and state’s EEO (that’s equal employment opportunity) laws and general anti-harassment policies. Then make sure these policies are implemented somewhere in your business (preferably in writing). Train your Human Resources team on key policies so they can see them through from hiring to exiting. Implement a non-negotiable workplace standard and train all managers, supervisors, and entry level employees on the guidelines and hold every person accountable, including yourself. Promote an inclusive workplace environment where differences are approached with professionalism and respect. Also, it always helps to have an employment handbook for companies with any number of employees, so the policies are clear and everyone understands what they are. Make sure to do a review once a year to ensure you’ve kept up to date with any changes in the laws.

When hiring, implement practices designed to diversify your pool of candidates. If you are using an outside agency for hiring, make sure they do not search for candidates based on gender or ethnicity. If you make that request, both you and the employment agency would be liable in the face of a dispute. Create objective qualification standards for open positions and follow through to make sure they are applied for every single applicant. The same applies for promotions. When the opportunity arises, communicate with all eligible employees and communicate openly what the exact criteria is to avoid confusion.

When the time comes for annual performance reviews, make sure they’re based on job performance and pay close attention, so you can detect patters of potential discrimination. This means ensuring raises are not significantly higher for one person and significantly lower for another based on anything but their work ethic. You can set these standards from the beginning to keep these consistent amongst all employees.

There are so many ways to avoid discrimination, but the easiest is to talk about it. Host diversity and anti-discrimination training, open conversation and stay aware of what is happening in your business. It is important to keep your workplace safe and strong on its policies against discrimination. There is much more to gain by keeping your workplace open to all, and even more to lose by inviting in any discrimination.