Monday, January 7, 2013

Blog Domain Names Becoming Hot Propety

This month's edition of the ABA Journal pointed to a story that likely caught the eye of most legal bloggers--if they hadn't seen it already.  The article suggests that the matter was definitely decided, but that is misleading, as the legal battle continues.

The issue first made headlines last October when the 5th U.S. Circuit Court of Appeals out of New Orleans issued a ruling on a unique case involving a domain name for a legal blog.  Essentially, a worker's compensation lawyer was sent a cease and desist letter from the Texas Department of Insurance (TDI) because we owned and blogged on legal developments in the area at the domain name:  The TDI claimed that state law prohibited the attorney from using the state department's name and purview.  Amazingly, the department threatened to hit the man with a $5,000 daily fine for using the words "Texas," "worker's," and "compensation"  in any order on any marketing or promotional efforts. 

This obviously seems egregious, and fortunately the attorney stood his grounds.  Filing suit and claiming violations of the 1st, 5th, and 14th Amendments, he argued that the blog was merely informational and that if applied in this manner the state law violated his basic free speech rights.

In October of this year the federal appeals court ruled on an appeal of the matter after it was dismissed by a district court for failure to state a claim.  Fortunately, the Court sided with the attorney and noted that the state made no attempt to show how this law was narrowly tailored to meet a substantial state interest.  The matter was revived and the case will seemingly proceed, though information on its current status remains elusive.

A full copy of the court opinion can be Downloaded Here.

This case is obviously one of significant importance to everyone in the legal world, as sharing information with others online is virtually universal.  In the years and decades ahead it will obviously be second-nature for all firms to use predominately online tools for communication, education, and information-sharing.  This particular legal case includes a few complex issues of intellectual property, free speech, and equal protection.  However, at the end of the day, it is hard to imagine how courts will disallow use of basic words like "worker's compensation" and a state name for those who provide support services for residents.  Obviously there is a difference between using those words and actively masquerading as a representative of a state agency.   The law in question was obviously intended to prevent the latter, and it won't be too difficult for the court to make assessments about whether that decepetion was at issue in this particular case.

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