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[Image]               Virtual Intellectual Property Newsletter

       V.I.P. (Virtual Intellectual Property) Newsletter
       U.S. Intellectual Property & New Media Law Update
       Monday, February 16, 1998
       Volume II, Issue VII
       Bazerman & Drangel, P.C.

       (C) Bazerman & Drangel, P.C. 1998
       *********************************************
       This Week's Topics:
       1> The Wages of Sin on the Internet
       2> Revision 03 of InterNIC Domain Name Dispute Policy
       3> No Confusion Between DIGIRAY and DIGIRAD
       4> AOL May or May Not Be Classy but it Has its Own Class Action Now
       *********************************************
       THE WAGES OF SIN ON THE INTERNET
       In re Beylen Telecom, Ltd. and Niteline Media, Inc. and Ron Tan (FTC
       -Decided- January 23, 1998)
       ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
       In our November 17, 1997 issue we discussed a case brought in the
       Eastern District of New York by the FTC against a company which
       offered a free browser that automatically disconnected the modem from
       its normal ISP and routed it to an international telephone call. The
       FTC also commenced an internal proceeding against Beylen Telecom Ltd.,
       Niteline Media, Inc., and Ron Tan for a similar claim. In this case,
       two companies, Beylen Telecom Ltd. and Niteline Media, Inc., not only
       diverted calls but caused the consumers to pay inflated phone rates to
       Moldovia where the calls actually connected to Canada. The settlement
       includes the payment of refunds to AT&T and MCI which will issue
       credits to their customers who were billed for the calls and to the
       FTC which will issue refunds to customers of other long distance
       carriers who were billed for the calls. Now that is what I call
       operating at a net loss.

       Recently, the Federal Trade Commission issued a statement on Internet
       fraud which may be of interest to the reader . The report likens
       internet fraud to various 1-800 and 1-900 telephone frauds. Among the
       interesting little tidbits are that there are now teaser sites posed
       by the Commission's staff to mimic pyramid schemes, scholarship scams,
       deceptive travel programs, false weight loss claims and fraudulent
       vending opportunities as a teaching device for consumers.
       The decision can be seen at:
       http://www.ftc.gov/os/9802/beylen.cmp.htm
       The FTC statement can be viewed at:
       http://www.ftc.gov/os/9802/internet.test.htm
       ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
       VERSION 03 OF INTERNIC DOMAIN NAME DISPUTE POLICY
       NSI Domain Name Dispute Policy (Effective-February 25, 1998)
       ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

       Effective February 25, 1998, InterNIC has revised its domain name
       dispute policy. The revision acts more as a clarification rather than
       a change in the structure. Due to the current proposals with regard to
       control of the Internet, all references to .GOV has been deleted from
       the policy statement. A clear statement is added that Network
       Solutions neither arbitrates or resolves disputes and that the policy
       does not limit the administrative legal procedures NSI may use when
       disputes arise or when NSI receives evidence that the legal rights of
       a third party have been violated. In addition to revocation, the
       amendment allows for suspension, transfer or other modifications to a
       domain name registration for disputed domain names. In general, a
       number of more specific explanations as to how the NSI will react in a
       conflict situation are set forth.

       Given that NSI will still be around for a while, this dispute policy
       may be effecting the rights under the most important top level domain
       names for some time to come and, accordingly, should be reviewed by
       all domain name owners or their representatives.

       Also of interest is a new website that NSI has established for easier
       registration of domain names. The site is interesting because it shows
       NSI preparing for competition in this field. Some of the features of
       the site are as follows:
      * domain name look-up and instant registration;
      * alternative domain name suggestion searches; and
      * low cost domain name hosting option that eliminates the expense of
       contracting an ISP to register a domain name.

       The new policy can be viewed at:
       ftp://rs.internic.net/policy/nic-rev03.txt

       NSI's new web site can be viewed at:
       https://reg1.worldnic.com/HOME/

       ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
       NO CONFUSION BETWEEN DIGIRAY AND DIGIRAD
       In re Digirad Corp. (TTAB -Decided- January 23, 1998)
       ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
       Applicant, Aurora Technologies Corp., filed a trademark application to
       register the mark DIGIRAD for solid-state gamma radiation sensors,
       signal processors and display apparatus for use in medical isotopic
       tracing and medical nuclear imaging. Registration was refused by the
       examining attorney on the grounds that Applicant's mark resembled the
       mark DIGIRAY and Design for an electronic digital x-ray system
       comprised of an x-ray scanning beam tube and detector for medial use
       and computer software for use with electronic digital x-ray system.

       The Board went through a detailed analysis of the similarities and
       differences between the stated goods and found that x-ray imaging and
       nuclear imaging utilized distinctly different technologies and
       involved different medial specialties. The Board further found that
       both parties goods are complex, expensive and the purchaser is
       knowledgeable with respect to these goods. Given this the Board found
       that the examining attorney had not established that Applicant's and
       Registrant's identified goods were sufficiently related, that if sold
       under the identical or similar marks confusion was likely. The Board
       noted that the fact that the registration was a design mark would not
       effect the comparison since the word portion was dominant. Finally
       while the mark is similar in appearance and sound the Board found
       distinction in connotation between "ray" and "rad" corresponding to
       the difference in the goods.

       This decision can be viewed at:
       http://www.oblon.com/Uspto/Ttab/74-569856.html

       ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
       AOL MAY OR MAY NOT BE CLASSY BUT IT HAS ITS OWN CLASS ACTION NOW In re
       America Online Inc. Unlimited Access Litigation (E.D. Va. -Complaint
       Filed- January 26, 1998)
       ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
       A class action has been brought against AOL by its users. The two
       subclasses are commercial users and access users. Three quarters of
       the complaint are page after page listing the named Plaintiffs.

       In October 1996, AOL began advertising that beginning December 1,
       1996, AOL would offer its subscribers the opportunity to switch to a
       flat-fee pricing system which would provide unlimited access to AOL.
       The complaint alleges that AOL intended to replace the subscriber
       revenues lost as a result of a shift to unlimited access time from
       companies seeking to advertise and/or post content on AOL's networks.
       Thus, it took action to swell its membership and, at the same time, to
       enroll new advertisers. As most of us know, AOL was all too successful
       and it ended up signing up a substantial number of new members. As a
       result, subscribers were unable to obtain access to AOL's network.

       Plaintiffs set forth a number of causes of action, including: false
       advertising since AOL gave less than unlimited access; breach of
       contract; violation of the Unfair and Deceptive Practice Act; unjust
       enrichment; misrepresentation and fraud: negligent misrepresentation;
       and negligence. Inter alia, the Plaintiffs asked for restitution of
       all amounts overpaid by Plaintiffs and all class members for AOL
       services together with interest, an injunction stopping AOL from any
       future advertisements which mislead the public as to AOL's acts and
       practices and, most interestingly, an injunction stopping AOL from
       billing anyone in the class for its services until such time as it can
       provide unlimited access to all existing subscribers.

       The complaint can be viewed at:

       http://www.ljx.com/LJXfiles/aol/aolclassact.html

       ----------------------------------------------------------------------
       The complete set of newsletters can be viewed at:

       http://www.ipcounselors.com

       If you have any questions or comments regarding any of the above,
       please do not hesitate to contact us. IF YOU ARE AWARE OF ANY
       INTERESTING RECENT CASE, PARTICULARLY IF THE COMPLAINT OR DECISION IS
       ON THE WEB OR YOU CAN SUPPLY US WITH A COPY OF THE PLEADINGS OR
       DECISION FOR POSTING, PLEASE LET US KNOW.

       If you do not wish to receive the update, send a message to
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       of their message.

       Bazerman & Drangel, P.C.
       Intellectual Property and New Media Attorneys
       60 East 42nd Street
       Suite 1158
       New York, NY 10165
       tel: 212 292 5390
       fax: 212 292 5391
       e-mail: bdpc@ipcounselors.com

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