San Diego Estate Planning Lawyer Blog

San Diego, California has many companies which register their domain name. In our firm, Pinkerton, Doppelt & Associates, LLP we have registered the domain name of www.help411.com. This registration is very important since many companies, both big and small, market their website addresses and spend a lot of money and time on this. In addition, stationary and other marketing materials have the website address. It is critical to make certain that the registration process is complete.

In one case, a small partnership whose sole line of business appears to have been registration of hundreds of Internet domain names registered an Internet address name that was virtually identical to the name of a famous winery. When the winery got nowhere with demands that the domain name be released or transferred to it, it sued under the federal Anticybersquatting Consumer Protection Act (ACPA). Cybersquatting is the registration of a domain name of a well-known trademark by someone who does not hold the trademark but hopes to profit from selling the name back to the trademark owner.

Unfazed by the lawsuit, the partnership went on the offensive. On a website that used the name in dispute, the defendant published under the heading "Whiney Winery" a discussion of the lawsuit and an attack on the winery and corporations generally. This online response to being sued was the first and only time that the registrant of the disputed domain name actually used it.

A federal court awarded a judgment to the winery under the ACPA. There was no question that the winery had a valid trademark that was famous and distinctive, and that the domain name registered by the defendant was identical or confusingly similar to the mark. The defense rested instead on the contention that the partnership did not have the bad-faith intent to profit from another's mark, as is required for liability under the ACPA.

The court weighed various factors that go into deciding if "bad-faith intent to profit" is shown, and the partnership did not fare well. When it registered the domain name, it had no intellectual property rights in the name, and it never had used the name in a legitimate offering of goods or services. Although it had not yet offered to sell the domain name to the winery, it had made such offers to sell names to other trademark owners, generally accepting no less than $10,000 per name. The partners admitted that they hoped the winery eventually would contact them so that they could "assist" the winery in some way. The icing on the cake in establishing bad faith was the hosting of a website and using the winery's trademarked name as a forum for attacking the winery's goodwill and tarnishing its trademark.

Posted by Roy M. Doppelt | Permalink | Email This Post

Posted In: NEWS AND COMMENTARY

Bookmark:

An elderly doctor and his daughter opened a joint bank account, the money in which would go to the surviving account holder if the other one died. This is a case of the right of survivorship and should have been part of a revocable living trust and then would proceed by trust administration. Nine years later, when the doctor was in declining health, his wife asked to be added to the account so that she could pay bills. Based on the signatures of the doctor and his wife, but not the daughter, the bank added the wife to the account. Over a one-month period, the wife then wrote many checks on the account, totaling over $100,000. The biggest check, for $75,000, was written, cashed, and deposited to the wife's own account on the very day her husband died.

The daughter sued the bank, claiming it was liable to her for recognizing a new party to the joint account without the consent of all parties to the account. A state supreme court sided with the bank. First, the documents that comprised the contract between the bank and the account holders included a statement that each owner was the agent of any other owners for purposes of endorsements, deposits, withdrawals, and conducting business for the account. This language was broad enough to give the doctor power to add his wife as a new party to the account without his daughter's knowledge or consent. Second, a statute on joint accounts similarly made each party to an account the agent for other account holders, although the statute was silent on the method for adding a new party to an account. The bank had not breached its contract when it recognized the doctor's wife as a new party to the account based solely on the doctor's signature.

This decision highlights the pitfalls that can accompany joint bank accounts. Allowing each party to a joint account to exercise full authority over the account is flexible and convenient, but the cost of these advantages is loss of control. The exposure to this risk is widespread, as joint account contracts typically have language like that used in this case.

Alternative methods for managing money make it more difficult for any individual to raid accounts to the detriment of co-owners. These include advanced health care powers of attorney, revocable living trusts, and "agency" or "convenience" accounts that resemble general powers of attorney but are confined to specific bank accounts. Seek the advice of legal counsel before deciding which of these options is most appropriate in a specific situation.

Posted by Roy M. Doppelt | Permalink | Email This Post

Posted In: TRUST ADMINISTRATION

Bookmark: