In the age of social media, new platforms struggle to dethrone the reigning kings of Twitter, Facebook, and Instagram.  But one application, Vero, has gained traction in its attempt to replace Instagram.  Launched in 2015, Vero touts itself as a “true social” experience where users can share photos, links, music, movies, books, and location check-ins.  Although Vero launched in 2015, it shot to the top of Apple’s App Store (from #566 to #1) and Google Play seemingly overnight and currently boasts nearly three million users.  Its sudden surge in popularity is attributed to a change in Instagram’s algorithm regarding chronological order of posts and Vero’s initial promise that only the first million users would avoid paying a subscription fee (although, at the time of this publication, the application is still free until further notice).

With millions of users joining Vero in one short week, controversy quickly followed.  One of the largest complaints against Vero is its terms and conditions, which many argue as too broad and sweeping.  Specifically, many users refused to join or deleted their accounts after realizing they granted Vero “a limited, royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, translate, distribute, syndicate, publicly perform, publicly display, make derivative works of, or otherwise use your User Content.”  Royalty-free?  Irrevocable?  Sounds scary to the average user.

But if those terms are a concern, we caution you to inspect the terms and conditions of all your social media platforms; they each use similar language.

Every tweet grants Twitter “a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content […]. This license authorizes us to make your Content available to the rest of the world and to let others do the same.”  Don’t be surprised if Facebook itself “likes” the video you posted of your adorable niece, because you granted them “a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook.”  Posted a perfectly filtered photo of your brunch to Instagram?  In addition to giving them envy over your eggs Benedict, you also gave Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content.”

The use of these platforms themselves are an acceptance of their respective contractual terms, and like any contract, it is imperative to understand exactly to what you have agreed.  Ultimately, Vero’s terms and conditions are no broader or narrower than most platforms’ terms and conditions.  There are arguments for and against all social media platforms that go beyond their respective terms and conditions, but if your use is conditional on those terms, consider reevaluating your involvement with any social media platform.

 

The last decade has seen an unprecedented growth in technology, which has paved the way for internet globalization and given new meaning to the term “international commerce”. Consequently, the digital highway has become populated with modern day highwaymen out for a fast buck. These rogues, known as “cybersquatters”, are individuals who register domain name addresses with the primary purpose of reselling them. Therefore, trademark holders are forced to pay these cybersquatters a substantial amount of money in order to get back a domain name making use of their trademark.  When cybersquatting first reared its ugly head, the only ammunition that trademark holders had was traditional theories based on trademark law. However, these proved to be insufficient in the wake of internet technology, thus necessitating the creation of new enforcement mechanisms. Hence, the Anti-Cybersquatting Consumer Protection Act (ACPA) was enacted.

In enacting the ACPA, Congress was attempting to create a bright-line rule that would clearly resolve cybersquatting disputes. However, what it has also done is create uncertainty in many cases.  Granted, the Act is useful in cases involving obvious bad faith.  But where the circumstances surrounding bad faith are unclear, the Act is less helpful. In determining bad faith, one of the more important factors in the Act is whether the defendant “offered to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services.” The difficulty comes in where the court has to determine whether a defendant intended to use the domain name.  It would be very difficult to say with any certainty that someone did not intend to use a name.  It is possible that a defendant registered a domain name with the intention of offering goods and services, but later decided that the business venture was not economically viable.  In this situation, it would make sense to sell the domain name if there were any takers.  However, it is also plausible that the defendant will not be able to prove that it had plans to start a business.  The court might then infer bad faith in a situation where the defendant was nothing more than conscientious in promptly registering a domain name.

It is easy to see how a defendant can be snagged in the cybersquatting net when it had no bad faith intentions to begin with. More important, a defendant’s use of a domain name may not even infringe on a valid trademark. Trademark law in the U.S. is complex with many factors that need to be considered before superior rights are determined. But the problem with the concept of cybersquatting is that it assumes that one of the parties has to be the “bad guy” (usually the domain name registrant). The ACPA can be used to pressure a defendant into giving up a domain name in what is known as “reverse cybersquatting,” and it can be a powerful bullying tool given the substantial penalties that the ACPA inflicts on cybersquatters.

So in the event you receive a cease and desist letter from a business claiming that you wrongfully registered a domain name that infringes on their trademark, do not automatically cave in to the pressure. You need to seek the advice of trademark counsel if you registered the domain name in good faith. You may in fact have superior rights to both the domain name as well as the trademark itself. It could very well be that the accuser is trying to bully you into giving up a domain name that it did not have the foresight to register.

Texas Capitol Building in AustinOn our On the Radar blog, which covers new developments in the law surrounding unmanned autonomous vehicles or drones, associate Tressie McKeon recently published a post discussing current Texas law governing drones and its interaction with federal law. Though the federal government (that is, the Federal Aviation Administration (FAA)) exclusively regulates navigable airspace across the country, states can and have regulated commercial drone use via law enforcement-focused statutes, such as those pertaining to trespassing.

We invite you to read her valuable discussion.