Will it be Hard to Register My Trademark?

Registered-Trade-mark-symbol
Photo from pinnacletms.com.au/difference-between-trademark-symbols/​

So you have great idea blog, business, product, brand, etc.! Now what?  ​How do you make sure you are protecting your asset?

Well, an important part of protecting your invention, product or business is protecting the name.  Start by​ outlining​ ​a strategic plan for trademarking your intellectual property. ​A very important part of that strategy is determining whether or not your proposed mark can be trademarked.

How can I​ ensure my mark is trademarkable? What is the likelihood for successfully trademarking this name? Should I consider changing the name to make sure that it can be trademarked? These are questions you should ask yourself, preferably while under the consult of an attorney. ​

O​nly the USPTO can make a final decision as to whether or not a mark is eligible for federal trademark registration. However, they have ​provided guidance on what terms can be trademarked and ways to make otherwise untrademarkable names trademarkable. This guidance is a great framework to use when determining if you can successfully trademark your name.


Trademark rights are designed to protect the consumer from confusion. Therefore, the overarching rule is the USPTO will not approve a trademark they think will cause consumer confusion. Here are a few things to consider to help you think about whether or not your mark may cause consumer confusion in the eyes of the USPTO. 


Originality
The first thing to know is the USPTO will not trademark a name that is already trademarked or similar to a mark that is already trademarked, in the same or similar classification. The USPTO wants consumers to be able to associate a specific set of goods or services to a mark so if two marks are confusingly similar and are associated to the same or similar goods or services it is not likely to receive a federal trademark registration.  A trademark clearance search is great tool to ensure that your mark does not infringe on the trademark rights of others. This search should scour federal and state registrations to ensure no one has already secured the same or similar trademark. Internet searches of businesses or brands operating with the mark that have not yet secured federal or state trademark protections are also very important because they may have common law trademark rights. Common law rights arise from actual use of a mark and may allow the common law user to successfully challenge a registration or application. It’s imperative to know all potential impediments.  Having a clearance search done by a trademark attorney during the planning stages of your new venture can help you avoid rebranding and the expenses therein, after you’ve already launched.

Also if you are starting a business you should check with your state’s business entity registration office to see if the name you’ve chosen is available for your entity name.

Distinctiveness
Trademark law requires that a mark be distinctive or unique such that it easily distinguishes a product or service from the product or services of others. The distinctiveness of a device can generally be categorized into one of five categories which fall along a spectrum of distinctiveness. From most distinctive to least distinctive, these categories are:

  • Fanciful – marks created for the sole purpose of being used with the product or service. This is the strongest type of mark. E.g., would be XEROX or KODAK,
  • Arbitrary – a common word which is used in connection with products or services unrelated to the dictionary meaning. E.g. APPLE for computers. Arbitrary marks are also immediately eligible for registration.
  • Suggestive – marks that suggest a quality or characteristic of the goods and services but requires imagination on the part of the consumer to identify the characteristic. E.g., MICROSOFT (suggestive of software for microcomputers)
  • Descriptive – ​​marks that merely describe the good or service. The mark likely uses the dictionary meaning of a works in connection with products or services directly related to that meaning. Unlike suggestive marks there is no imagination or creativity needed to identify the product or service. E.g., LEKTRONIIC was famously refused protection by the USPTO on ground of being descriptive for electronic goods.
  • Generic – the common name for the products or services in connection with which it is used, such as “salt” when used in connection with sodium chloride.
TM registration-table
Photo from http://www.patent-usa.com/trademark/


Devices that are fanciful, arbitrary, or suggestive are usually considered distinctive enough to function as trademarks. On the other hand, if a device is descriptive, the device can function as a trademark or service mark only if it has obtained secondary meaning. Generic devices can never be a trademark. A mark can become generic if the trademark becomes the generic name for the good or service. For example Escalator. ​ See my previous post “Trademark Holders Beware of the Generic Curse” for more details.

Figure out where on the spectrum your mark falls. This will help gauge your likelihood for success and how long the application process will take. The closer you are to not distinctive portion of the spectrum the more likely you will need to prove distinctiveness tot he USPTO. If you have not yet selected a name, keep these limits in mind as you create one.

A few additional tips…
​Claim Your Mark
Until you have secured a federal registration you cannot use the ® symbol, which indicates that the trademark is registered with the U.S. Patent and Trademark Office (“PTO”). However,  you can use the ™ symbol with the mark to identify it as a trademark, whether or not a federal trademark application has been filed. The ™ symbol can be used with marks for both goods and services, although some companies use SM (referring to a service mark) with a mark that is used for services as opposed to goods. These symbols put people on notice that you claim rights in the mark, although common law (a trademark mark rights acquired merely by using the mark) doesn’t give you all the rights and benefits of federal registration.
Get Help!
Consult an attorney when determining whether or not to file a trademark. This is a brief overview and does not shed light on all of the intricacies of the process. Registration of a trademark is a very fact specific process and your mark must be analyzed on the merits. This article is just designed to help you frame your thought process. Attorney’s are uniquely equipped to position a mark to be successful and know how to fight a denial using case-law and previous registrations to get a seemingly untrademarkable mark trademarked.
Good luck!!

 

Trademark Holders Beware of the Generic Curse

Trademarks are wonderful means for protecting your brand. You want your trademark to be pervasive and resonate in the minds of consumers. You want it to be apart of their everyday life! However, when a trademark becomes so common that it is used at the term for the item or service rather that the brand you run the risk of loosing your trademark because it is generic. Under the Trademark Act generic terms cannot be trademarks.  A generic term is a word that the relevant purchasing public understands primarily as the common name for a particular product or service.

What is kleenex?  If you said tissue, you’re incorrect it is actually a brand of tissue that has become so common it is often used as a generic term. Kleenex is lucky because the company fought and won to keep its trademark alive. However, there are a whole host of others that were not as lucky.  For example, escalator, originally a trademark of the Otis Elevator Company, or aspirin which is still a Bayer trademark name for acetylsalicylic acid in about 80 countries, including Canada and many countries in Europe, but declared generic in the U.S.

Recently the word “skew-ball” also came under scrutiny. Full Circle United, LLC (Full Circle) claims the word “skee-ball” is the common name for the game of skee-ball, which has been an American boardwalk and arcade pastime for over a century.  Full Circle, which organizes skee-ball competitions across the country, was sued by SBI, Inc., a manufacturer of skee-ball machines, and owner of the federal trademark registration of “skee-ball,” for infringement of the term “skee-ball.” Full Circle countered by filing its own complaint alleging that SBI has no rights in the word “skee-ball” because, just like many other marks that have come and gone, such as yo-yo, trampoline, and pilates, skee-ball is generic. This case is still being decided.

This phenomenon is hard to control because you want your brand to be popular but some ways to prevent genericizing a brand are:

A sign in a supermarket using "Jell-O" generically - Image from Wikipedia
A sign in a supermarket using “Jell-O” generically – Image from Wikipedia
  • Use the proper name for the good or service in conjunction with the trademark or brand name. For example, you’ll notice that Kleenex’s brand now reads “Kleenex brand Tissue”
  • Let the world know you have a registered trademark by using the appropriate symbols. Use the letter R enclosed within a circle, ® for federally registered marks and for an unregistered mark, use TM.
  • DO NOT use your trademark as a noun. For example: Put on a BAND-AID – NO! Put on a BAND-AID brand bandage – YES!
  • DO NOT use trademark as a verb or plural. Go XEROX the document – NO! Make a copy with the XEROX copier – YES! I need two Kleenexes – NO! I need two Kleenex tissues. – YES!
  • Police your trademark. Correct others misuse of your trademark
  • Educate the public especially authorized users, distributors, and anyone else consumers will believe have authority or knowledge about the brand.

Be proactive about preventing your brand from becoming a generic term. Although this phenomenon is a symptom of your success you want to avoid loosing your trademark

How Much of Your Data can Apple Hand to Law Enforcement?

We are all aware (or at least we should be) that our telecom providers are handing over our data to the police when necessary. Well have you ever wondered just how much and what it takes to get that data? iphone-privacy-2011-04-06-1302104043Apple posted their new guidelines describing what data the company can provide to law enforcement and the processes for requesting that data.

The document breaks it down into two basic types of data: information stored on Apple’s servers and information stored locally on iOS devices.  I have outlined the kinds of data and how they can be obtained in a chart below.

Essentially anything you’ve backed up to or stored on iCloud is available for Apple to provide to law enforcement, including connection logs and IP addresses you’ve used. Additionally a lot of the data associated with your Apple ID is available as well. Therefore, any information you’re providing Apple is available for them to pass along. This is something to consider when deciding if or what to back up on iCloud.  You may want to avoid backing up sensitive company data or private information on iCloud. Some information cannot be avoided, such as anything associated with your Apple ID.

Can they access data on my iOS device???

Yes. Apple can bypass security passcodes on our iOS devices to extract “certain categories of active data,” though it apparently cannot bypass that protection entirely. If provided with a valid search warrant, Apple can hand over SMS messages, pictures and videos, contacts, audio recordings, and your phone’s call history, but it can’t access e-mails, calendar entries, or information from third-party applications. Devices must be running iOS 4 or newer, must be “in good working order,” and must be provided directly to Apple’s headquarters along with an external storage drive twice the size of the iOS device’s internal storage.

Will I know if this is happening?

Maybe. The guidelines state that Apple will “notify its customers when their personal information is being sought in response to legal process except where providing notice is prohibited by the legal process itself.” Apple will also avoid notifying users if the company “believes that providing notice could create a risk of injury or death to an identifiable individual or group of individuals or in situations where the case relates to child endangerment,” though this is entirely up to Apple and not to the law enforcement agencies involved. These notification requirement will help prevent random and unfounded searches.

What is missing?

The policies and capabilities surrounding iCloud Keychain, iMessages and FaceTime calls are unclear and disputed. Apple claims iMessage & Facetime are encrypted but there is some speculation otherwise.

Is this unusual?

No, other tech companies have similar policies. For example, Google provides a similar “Transparency Report” outlining the types of data available to law enforcement. The notification policy is new and several other tech giants, including Facebook and Microsoft, have already indicated that they plan to expand their policies on notifying customers whose data has been requested by law enforcement

 

Where is the Data? Type of Data Means to Obtain Data Restrictions
Information stored on Apple Servers Data Associated with your Apple ID contact inormation obtainable with a subpoena or greater legal process
customer service records
transaction history both in store & online
iTunes gift card information
Data Associated with your iCloud Account connection logs & IP address used Any iCloud information that the user deletes cannot be accessed.
60 days of iCloud mail logs that “include records of incoming and outgoing communications such as time, date, sender e-mail addresses, and recipient e-mail addresses” e-mail logs require a court order or search warrant
any e-mail messages that the user has not deleted requires a search warrant
any other information that can be backed up to iCloud – As of this writing, this list includes contacts, calendars, browser bookmarks, Photo Stream photos, anything that uses the “documents and data” feature (which can include not just word processors but also photo and video apps, games, and data from other applications), and full device backups
Information stored locally on iOS devices SMS messages requires a search warrant – Devices must be running iOS 4 or newer, must be “in good working order,” and must be provided directly to Apple’s headquarters along with an external storage drive twice the size of the iOS device’s internal storage. Cannot access e-mails, calendar entries, or information from third-party applications
pictures and videos
contacts
audio recordings
phone’s call history

Enforcing Trademarks on Social Media

As a trademark owner you have an obligation to “police” your trademark. What does that mean? You are responsible for finding and addressing infringement of your trademark rights. (Copyright holders have a similar obligation.)  A major part of policing or enforcing those rights is monitoring and addressing violations on social media.

Platform Content Removal Policies

Each social media platform has their own policies for removal of content whether trademarks or copyrighted work.  It is important to determine the appropriate method and provide all the necessary information to secure timely removal. Social media content changes very quickly so to be effective at protecting brand perception you must be swift and efficient about requesting content removal.

Use this infographic I created as a quick reference guide for Takedown Policy Requirements On Top Social Media Sites.

What Do I Take Down?

Not only is knowing the policy requirements important you need to determine when a post/content warrants removal. This is a strategic decision your company should make while engaging all necessary stakeholders including but not limited to management, legal and marketing/PR. Below are a few things to consider when determining when to take down a post:

  1. As an organization develop a policy for what types of brand use or content use are important to the company. Use that as a guide to addressing infringement.
  2. Embrace positive uses of your mark. There are positive uses that can promote your brand. Coca Cola illustrates a great example of embracing what could have been trademark infringement when two fans created a Facebook page for them.  Coca cola just dedicated a few members of their team to monitor the content.
  3. Know the social media platform rules and policies on content removal. See the infographic for some help but visit the policies on the platform.
  4. Figure out who is likely to comply with your request for content removal. It is usually easier to make a request through the platform. It can be hard to determine who posted content and their contact information. Additionally, it is unlikely that they will cooperate. Remember that the social media content provider is not likely liable for anything unless you can prove a partnership or joint ownership and control over the account.
  5. Reviews & other commentary about your brand, positive or negative, are allowed. Most social media sites will not take down content of this nature and this can cause backlash that will outweigh the potential benefit. This is a great opportunity to engage consumers and either address concerns or reinforce positive perceptions.
  6. Consider the public relations implications of requesting removal. Will attempting to remove the content cause backlash that will be more detrimental? There have been a number of instances of brands garnering greater negative media attention for trying to take something down justified or not. If infringer’s presence is significant enough to cause concern consider joining the conversation.
  7. Include all the requested information. Incomplete requests for content removal may cause unnecessary delays.
  8. Include trademark registration numbers for all jurisdictions. Some social media platforms will only block content in the applicable jurisdiction or country if you only provide proof of one registration. Provide all registrations so the social media platform is aware of the extent of your protection.
  9. List exactly where infringements are located on the site. Platforms are not required to search for infringements.
  10. Submit evidence of current use. This information only serves to strengthen your claim and is as easy as providing the url to your website.

Remember your objective when policing your mark is to make sure consumers will not be confused. Your trademark is your calling card, do not let anyone use it in a way that dilutes your reputation or capitalizes on the goodwill or value created in that trademark. If you do not have in-house legal counsel consult with an attorney to develop a comprehensive plan to address trademark infringement.

New gTLDs as a Branding Tool for Entrepreneurs

The launch of new gTLDs (generic top-level domains) provide an amazing opportunity for entrepreneurs and small to medium businesses to further brand their business in their domain name. A gTLD is the part of you domain after the “.”.  Having fun with you website domain can help you stand out as you market yourself and establish your brand. Emphasize your company’s mission, expertise, experience, niche, etc through the top-level domain you use. Also if your company name or other domain you sought to register is taken on .com there are new and exciting options! Don’t miss out on companyname.rocks or company name.consulting.

You can register these new top-level domains just like you register a “.com” domain head to goDaddy, Namecheap, Name.com or your favorite registrar. This is something your should consider early in establishing your company. You don’t want to lose out on the perfect domain name.

This is an opportunity to accent your personal brand as well. As you establish your expertise and want to develop a website that showcases your skills you no longer are limited to firstnamelastname.com you can register firstnamelastname.esq, firstnamelastname.photography, or firstnamelastname.guru.  Grab your new domains as soon as they roll out!

Over 175 new domains have been released or delegated to date, with hundreds more on the horizon. You can view the available domains by visiting this page: http://newgtlds.icann.org/en/program-status/delegated-strings . This page lists the delegated domains, which means they are available for registration. This site will be updated as others are available.

Take advantage of this branding opportunity before others catch on!!
Examples of some new gTLDs that can make for a creative domain name:

.guru
.consulting
.cooking
.ventures
.photography
.active 
.expert 
.coach
.lifestyle
.shopping
.bar 
.pub
.events
.buzz
.solutions
.careers
.company
.management
.enterprises
.technology
.holdings
.rocks
 
Visit my older posts for more information on this launch: What do you know about the new top level domains?Will You Be Confused When The New Generic Top Level Domains (gTLDs) Launch?​; &​ Five things you should know as the new gTLDs launch.  And as always ask questions in the comments and share your successes and observations re: new gTLDs!​
 

35 Senators Ask Tough Questions Re: Internet Transition

Today, 35 U.S. Senators lead by Senators John Thune (R-S.D.) and Marco Rubio (R-Fla.) sent a letter to the National Telecommunications and Information Administration (NTIA), seeking clarification regarding the recent announcement that NTIA intends to relinquish responsibility of the Internet Assigned Numbers Authority (IANA) functions to the global multistakeholder community. Read my previous post “US to Relinquish Control of the Internet” for more background on this issue.

The letter express the group’s “[strong] support [of] the existing bottom-up, multistakeholder approach to Internet governance.” The letter highlights bipartisan support of S. Con. Res 50 in 2012 that reinforces “the U.S. government’s opposition to ceding control of the Internet to the International Telecommunications Union (ITU), an arm of the United Nations, or to any other governmental body.”

The group cautions: “We must not allow the IANA functions to fall under the control of repressive governments, America’s enemies, or unaccountable bureaucrats.”  To read the full text of the letter click here.

As you read it I encourage you to think about a few things: 

Are these the right questions?

These are fair questions and likely on the minds of those invested in the outcome of this transition. ICANN & NTIA have pledged transparency throughout this process, therefore, I look forward to their candid responses. None of the questions are out of line or beyond the scope of Congressional oversight.

What other questions should we ask?

The answers to these questions will spark additional questions. However, in my opinion, there are a few other questions the Senators could have posed.

  • What happens if the deadline is not met? Is the US prepared to renew the contract? Is the US prepared for the international backlash if the deadline is not met?
  • Does the structure of an organization like ICANN, that has an entire constituency of comprised of government representatives (GAC),  meet the nongovernmental multistakeholder model? To what extent and how are governments going to be kept out of oversight after the initial launch?
  • Whose interests does NTIA seek to serve or protect by initiating this transition?

What other questions do you have?

How hard do you want Congress to push on this issue?

Transparency will help alleviate fears and misconceptions. I think the answers to these questions and those likely to follow with help shape the dialogue as this process continues. Gaining the confidence of the American people and other inter nation critics will serve to make this a smoother process for NTIA and ICANN. I encourage Congress to pursue the answers to these questions and then decisions can be made about how to proceed.

This issue has a long way to go before we can develop a definitive perspective on the positive or negative effect this will have on the future of the Internet.  I will continue to monitor the developments but I encourage you think about what concerns you most and leave your thoughts in the comments.

 

The below are highlights of the questions asked:

  • Please provide us with the Administration’s legal views and analysis on whether the United States Government can transition the IANA functions to another entity without an Act of Congress. 
  • Please explain why it is in our national interest to transition the IANA functions to the “global multistakeholder community.” 
  • Why does the Administration believe now is the appropriate time to begin the transition, and what was the specific circumstance or development that led the Administration to decide to begin the transition now?
  • What steps will NTIA take to ensure the process to develop a transition plan for the IANA functions is open and transparent?
  • Will NTIA actively participate in the global multistakeholder process to develop a transition plan for the IANA functions, or will the Administration leave the process entirely in the hands of ICANN?
  • What specific options are available to NTIA to prevent [a government or inter-governmental solution] from happening?
  • How can the Administration guarantee the multistakeholder organization that succeeds NTIA will not subsequently transfer the IANA functions to a government or intergovernmental organization in the future, or that such successor organization will not eventually fall under the undue influence of other governments?
  • How did NTIA determine that ICANN is the appropriate entity to lead the transition process, and how will NTIA ensure that ICANN does not inappropriately control or influence the process for its own self-interest? 
  • Does NTIA believe ICANN currently is sufficiently transparent and accountable in its activities, or should ICANN adopt additional transparency and accountability requirements as part of the IANA transition? 
  • Is it realistic to expect that an acceptable transition plan can be developed before the IANA functions contract expires on September 30, 2015?  Is there another example of a similar global stakeholder transition plan being developed and approved in just 18 months? 
  • How will NTIA ultimately decide whether a proposed transition plan for IANA, developed by global stakeholders, is acceptable?  What factors will NTIA use to determine if such a proposal supports and enhances the multistakeholder model; maintains the security, stability, and resiliency of the Internet Domain Name System; meets the needs and expectation of the global customers and partners of the IANA services; and maintains the openness of the Internet? 
  • Will NTIA also take into account American values and interests in evaluating a proposed transition plan?  How? 

Bitcoin: How will this new “currency” affect you?

The other day I was making a purchase online and listed along with the other payment options– pay pal and credit card– was bitcoin…. What’s a bitcoin?  Can you actually use this to make purchases? Is this form of payment secure? How do I get bitcoins?

What is a Bitcoin?
 

A bitcoin is a form of virtual currency that only operates in cyberspace.

A virtual currency can be defined as a type of unregulated, digital money, which is issued and usually controlled by its developers, and used and accepted among the members of a specific virtual community. In 2009, the “Bitcoin” network was launched, introducing a worldwide virtual currency.

Bitcoin permits buyers and sellers to interact anonymously to facilitate instantaneous payments for goods and services, without the involvement of a third-party such as a bank. Bitcoin may be purchased to start but you must “mine” bitcoins. Mining is a resource-intensive processes where miners use special software to solve math problems and are issued a certain number of bitcoins in exchange.  Here are a few interesting facts about Bitcoin:

  • Bitcoin is typically stored on a user’s personal computer or in cloud based accounts called “wallets.”
  • Bitcoin wallets do not meet the UCC’s definition of a deposit account as they are not maintained with a bank.
  • Bitcoin wallets are not insured by the FDIC.​
  • Bitcoin has a high likelihood for extreme value fluctuations.
  • Bitcoin is gaining popularity.
 
The Warning!
On March 11, 2014, FINRA issued an Investor Alert to caution investors of the “significant risks” of buying and speculating in bitcoin and other digital currencies, as well as the risk of fraud and cybercrime related to online bitcoin exchanges and other bitcoin-related service providers.
Specifically, the alert outlines several risks surrounding the usage of and speculating in bitcoin, including:

  • Bitcoin and other digital currencies are not legal tender and if the trust built up among individual users and businesses should vanish, bitcoin would be valueless.
  • Online exchanges that allow users to buy and sell bitcoin and digital wallet services that allow users to store bitcoin are magnets for cyberthieves.
  • Because bitcoin transactions are essentially anonymous, users must take extra care to avoid fraudsters posing as legitimate services.
  • Bitcoin has been used for illicit transactions and such activities could impact users and speculators if an online exchange or service is shut down by law enforcement.
  • Price volatility has been bitcoin’s hallmark in recent years, and there is no uniform value of bitcoin across the various exchanges.

Is bitcoin the future?
Given the variable nature of bitcoin, it’s hard to foresee the future. Many questions remain: How will state or federal legislators regulate the bitcoin system?  Will volatility and data security destroy confidence in bitcoin?  Will bitcoin emerge as a standard payment option, remain a niche product, or otherwise become less interesting, but more predictable under new regulations? Will the average consumers embrace this new currency?

 
​Should Small Business Owners Use Bitcoin?
I would caution against it if your company will not survive the associated risks and building the necessary infrastructure. Accepting bit coin will necessitate updates to refund and exchange policies, calculation of sales tax, when to lock in the rate, etc.  Additionally, users will need to monitor developing regulations and consumer perception of bitcoin.  This volatility can be hard on sellers especially small sellers that rely on every dollar to survive and thrive. 
 
The retailers and other businesses that have announced that they are accepting bitcoin as payment are not established “brand” names that perhaps have a higher risk tolerance. One exception may be Overstock.com.  The major brands may soon follow. We have seen Vegas casinos, and Congressman accepting bitcoin.  But it seems the major brands are waiting to see how legislation develops,how consumer opinion develops, if the value will stabilize, etc before dabbling in a currency that offers little to no stability. The companies using bitcoin are predominately brands that have the benefit of anonymity, are seeking publicity or have a consumer base that is actively using bitcoin and will understand the volatility. Unless you run a tech business that caters to the bitcoin-savy, use caution when exploring new payment options. Your budding company may not bounce back from a dive in the value or new regulations that may emerge. Build a strong brand and strong consumer base then consider taking risks. Bitcoin may not be going away anytime soon but asses legal/regulatory, commercial/financial, and reputational risks before deciding whether to make bitcoin a part of your business.

 

US to Relinquish Control of the Internet?

On Friday, the U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) announced it is giving up control of a system that directs Internet traffic and Web addresses. As a result, Internet Corporation for Assigned Names and Numbers (ICANN), the nonprofit organization charged with managing the Internet, is tasked to convene global stakeholders to develop a proposal to transition the current role played by NTIA in the coordination of the Internet’s domain name system (DNS). This announcement came as a surprise to many but a coalition of nations has been calling for the US to relinquish control of the Internet for at least the last nine months. Politically this takes the US out of the line of fire but practically what does this do for the culture of the Internet?

Why is this important to you? Because it may change the Internet as you know it….

What exactly was the US Doing?

NTIA is the Executive Branch agency that advises the President on telecommunications and information policy issues. NTIA’s programs and policymaking focus largely on expanding broadband Internet access and adoption in America. NTIA controls the DNS which essentially converts the web addresses (URLs) we type in to the search bar into the correct IP address to retrieve the website you requested. Whether you are accessing a Web site or sending e-mail, your computer uses DNS to look up the domain name you’re trying to access. This system is essential to the functionality and security of the Internet.

If not the US, then who?
This contract to control DNS has allowed the U.S. government to exert what some claim is too much influence over the Internet. technology that plays such a pivotal role in society and the economy. So if not the US, then who with the world feel comfortable wielding that power and influence?

There’s a meeting, ICANN 49, March 23 in Singapore and the future of the Internet is at the top of the agenda.

According to Lawrence Strickling, assistant secretary at the Commerce Department, “[The department] will not accept a proposal that replaces the NTIA’s role with a government-led or intergovernmental solution.” Does that leave ICANN or a similar organization to maintain the DNS?

Why should you care?
Because this could mean a very different Internet…

While companies like Verizon applaud the moveITIF and other organizations have argued before that U.S. government oversight has played an essential role in maintaining the security, stability, and openness of the Internet and in ensuring that ICANN satisfies its responsibilities in effectively managing the Internet’s DNS. Without the U.S. government’s presence some lawmakers and members of the tech industry have expressed concern that relinquishing control of IANA will open up the Internet to threats from other governments that seek to censor it.  This could mean a very different Internet.

Are their concerns justified? No one really knows right now but what we can surmise is that the Internet is in for some changes in the years to follow the change of control. Many countries have dealt with privacy and censorship in ways different from that of the US. How will ICANN deal with these conflicting views democratically and ensure Internet users from all economies and sovereign nations will be represented and heard? Will the standards of openness and free flow of information embraced today remain the baseline? Does the “global multistakeholder community” NTIA is referring to exist? What is the legal jurisdiction for both ICANN and this new multistakeholder body?

There are no answers to these questions because so little is known about whats to come. I look forward to the information and ideas that flow from the ICANN meeting next week.  The questions need to be among those at the top of the list.

Do Not Track Me… But Cater to Me

We have all become accustomed to having our technology cater to most of our needs in very personal way. However, we all desire to retain a certain amount of privacy.  For example, our cellphones track our every move and click while occasionally make calls – and yet we would be lost without the maps and ability to request anything from “Siri.” Our cable boxes may bring our favorite shows and movies but they also report back to providers all of your family’s television viewing habits.  We all appreciate the convenience that customization provides however that means a loss of privacy….

Why Are We Worried?
The latest buzz word is the The Internet of Things (IoT). What is that? “The Internet of Things” refers to the concept that the Internet is no longer just a global network for people to communicate with one another using computers, but it is also a platform for devices to communicate electronically with the world around them. The result is a global “network of physical objects that contain embedded technology to communicate or interact with people, things, and the external environment. It includes everything from traffic sensors to refrigerators, thermostats, medical devices, and wristwatches that can track or sense the environment and use the data they collect to provide a benefit, or transmit the data to a central repository for analysis, or both.”

This network of objects enables providers of goods and services to use your personal behavior to profile and evaluate your activities and habits.  The Internet of Things will result in increased data collection, amplifying the importance of simplifying choices and giving control to individuals with real-time notices. Transparency will facilitate consumer understanding of the collection, use and sharing of personal data. However, there is a real danger of data being used in unexpected ways. The Internet of Things has created a potential perfect storm of four major information policy concerns: online safety, privacy, security, and intellectual property issues. The goal is to determine what “reasonable” expectations regarding data usage should be, and then manage consumer expectations accordingly. Measures ensuring the network’s resilience to attacks, data authentication, access control and client privacy need to be established.  An ideal framework would consider the underlying technology and involve collaboration on an international scale.

The need to balance reasonable activity on the Internet and use of The Internet of Things with responsible privacy protections is exponentially increasing. This balance is extremely important because the last thing we want is to stifle innovation by over legislating this area.

Laws to Watch
At least 14 states have proposed legislation on the 2014 docket that is intended to increase privacy protection for consumers and limit both government and private sector surveillance via the Internet of Things. At the federal level, several bills are already making their way through Congress.

State
AB370, an amendment to the California Online Privacy Protection Act of 2003 (“CalOPPA”). CalOPPA requires owners of commercial websites and online service providers (“operators”) to conspicuously post a privacy policy. The privacy policy must disclose to consumers, among other things, the categories of personally identifiable information (PII), such as name, hone address, email address, social security number,  the operator collects and with whom the operator shares such information. Operators affected by CalOPPA include website operators and, as interpreted by the California Office of Attorney General, operators of software and mobile apps that transmit and collect PII online.

Federal 
The Black Box Privacy Protection Act is a bill in front of Congress that prohibits the sale of automobiles equipped with event data recorders-unless the consumer can control the recording of information. Additionally, the data collected would belong to the vehicle owner.

The We are Watching You Act is a bill in front of Congress that requires the operator of a video service (such as a DVR or Xbox) to display the message “We are watching you” as part of the programming provided to the consumer prior to the device is collecting visual or auditory information from the viewing area. This is not likely to pass but its a sign of legislation to come.

The Federal Trade Commission (FTC) has this phenomenon on its radar, it hosted an all-day workshop entitled, “Internet of Things: Privacy and Security in a Connected World in November. The FTC has also released a number of reports and guidelines that direct business on how to protect consumer privacy.

International 
With Internet Governance on the forefront of international discussion, international “Internet of Things” legislation is not the priority and likely to be left up to each country to decipher. International collaboration on issues like this early is one out come I hope comes from these Internet Governance talks…. but we’re a long way out from that happening.

The examples listed are a narrow sampling of privacy legislation designed to protect users from unwanted intrusions. Most notably, states have passed a number of laws protecting privacy rights in recent years.

Conclusion
The Internet of Things will bring tremendous new benefits to consumers but we must balance the need for consumer privacy. State, federal and international regulators must work to restrict government and private-sector collection and control of the data IoT will create. In the meantime, make sure you are aware of the information you provide through your IoT. Explore privacy settings and read privacy policies if you are concerned about sharing too much data with providers. Know what your priorities are as it relates to customization and privacy. If you value convenience and do not mind a prying eye or two, if it means a personalized user experience, share your data freely. However, if you value preserving your privacy be proactive about doing so until lawmakers can find the appropriate balance. Do not shun technology just educate yourself.