is a question that I (and I would imagine many lawyers) get a lot.  Entrepreneurs obviously want to know whether a potential course of action they are thinking about taking will end up causing them to be sued - by a customer, by a competitor, or by anyone else.  And, unfortunately, this question is usually not conducive to a "Yes" or "No" answer.  Like many answers in the law (especially intellectual property law) in which little is black and white, the best answer we can often give is "it depends." 

The reason "it depends" is that we are trying to predict (because we certainly can’t control) the actions of a third party (and their lawyer). In our judicial system, anyone can sue anyone at any time for almost anything.  Doing so does not mean they will ultimately be successful, of course.  They might even lose on summary judgment, which basically means that a judge has decided there is no legal merit to their case even before a trial has occurred.  But the defendant will still have to get to at least that point, and getting there takes time and money.  Given that in the U.S. everyone pays their own lawyer (unless there is a statutory or contract provision stating otherwise), you can can expend significant resources vindicating yourself.  Which may make you feel like you have lost, even when you have won.  Whether or not a lawsuit is filed depends in part on the legal merits of the claims to be made, of course, but, unfortunately, it also depends on the motivations of the potential plaintiff, the financial resources they may have, and the advice that they are getting from their business colleagues and lawyers.  Some lawsuits are filed for little more reason than as a bullying tactic.

So, when asked to give my opinion on whether or not you will get sued, I always start with an explanation like I have above.  We can then get to the merits of the potential case, actions you may take to avoid a potential lawsuit (the focus of my law practice), and whether or not you are likely to prevail if you do get sued.  But the question of whether or not a lawsuit will be filed is one that cannot be definitively answered.  I understand that that is not a very satisfying answer for an entrepreneur but sometimes it is the best we can do.

The FTC recently updated the CAN-SPAM Act (stands for Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003) to clarify certain requirements that affect commercial emailers.  If you send commercial email, and especially if you have affiliates that potentially send commercial email, you will want to stay up to date on the requirements of CAN-SPAM.   The FTC clarified 4 basic topics: 

The first involves the "unsubscribe process" that has always been a part of the CAN-SPAM requirements (you must provide a valid and functioning unsubscribe method).  The new FTC rule now clearly states that you cannot charge a fee for the right to opt out (seems obvious), you can’t require someone to provide personally identifiable information as part of the unsubscribe process,  or to have to take multiple steps beyond sending a simple unsubscribe reply email or visiting one web page. 

The second issue involves the common situation where a commercial email is really coming "from" more than one party.  The clarification allows the designation of a single party as the "sender" for purposes of CAN-SPAM.  The single party must meet certain requirements, however (must meet the definition of sender under the Act, for example) and it is important to note that if the designated sender does not comply with the other requirements of the Act, the other parties involved in the email can still be held responsible for those violations. 

The third issue simply clarifies that the requirement of a valid physical address in the body of the commercial email may include an accurately registered P.O. Box or private mail box (doesn’t necessarily have to be a street address).  Obviously, the address must still be valid.

The fourth issue simply clarified that when the Act mentions "person" it also means corporations, LLC’s, and other valid legal entities (no hiding behind your corporate veil).

These updates and clarifications are very useful to legitimate emailers because it removes some of the doubt that existed previously.  Be sure to review your email practices from time to time to be sure you are in compliance with all of the requirements of CAN-SPAM.

Whew - sorry for the long time between posts.  The last six months have seen explosive growth in our client base and matters handled and we’ve been working hard to serve our new clients.  We are fortunate to have acquired a great group of interesting and talented entrepreneur clients working in a wide range of cutting edge Internet businesses.  We have been drafting solid terms of service agreements, privacy policies, web development contracts, web business purchase agreements, and handling a host of other transactional matters for these clients.  To help deal with this welcome boom we have recently moved offices and added staff so I’m aiming to get back to a more regular blog posting schedule. 

While we handle numerous types of Internet law business matters, one area that I enjoy the most is domain name arbitration cases.  We help entrepreneurs and businesses through the UDRP arbitration process to recover domain names that they should rightfully own.  Our most recent victory on behalf of our client involved a non-U.S. registered trademark (the mark is registered in the British Virgin Islands).  The entire publicly available case decision can be found here: http://domains.adrforum.com/domains/decisions/1191809.htm.  The panel reaffirmed that trademark registrations in countries other than the U.S. are respected.

Another interesting case we handled recently involved the name of a celebrity and his common law trademark rights in his own name as a domain name.  There have been a line of past cases discussing the common law rights that arise in the name of a famous person and that makes these rights enforceable, even without a registered trademark.  That UDRP decision  and references to the prior cases in this area can be found here: http://domains.adrforum.com/domains/decisions/1106240.htm.

Of course, not every case has to go to arbitration and we’ve successfully recovered domains (or defended their ownership) without the need for a UDRP complaint but when needed we don’t hesitate to taking that step. And part of what makes the process so interesting is that every situation is so fact-specific.  Which is why we’re required to say that every case is fact-specific and unique and that prior case results do not necessarily predict or guarantee a similar result in the future.  If you think someone has a domain name that should belong to you, or if someone is making that claim about a domain name you own, don’t hesitate to contact us so we can discuss whether we can help you.

2007 was a good year (the highest in the last six years) for venture capital investments, and was especially good for Internet and technology firms.  According to this report - Venture Capital Investments Climb - $29.4 billion in VC fundings were made in 2007, over half of which were made in biotech, internet firms, and "green" technology.  $4.6 billion of the total was made to Internet companies.  In addition, more than $34 billion was raised by VC firms for future investments, so the positive trend of investments looks good for the foreseeable future. 

If you’re considering raising venture money for your Internet business, now is the time to calculate what you need, create a well-thought out plan for how you would use the money, and work on your pitch.