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What Could Be More Generic Than CyberLaw?

CyberLaw: A Legal Arsenal For Online BusinessAt least I thought it was when I used it as the title of my book. I do not feel too bad though, as a quick Google search shows that at least 356,000 others apparently have my back on this. The problem lies with one Eric J. Menhart, a Washington D.C. attorney, who apparently believes he is the only one allowed to use the generic term cyberlaw in association with “providing information relating to legal affairs.”

On the upside, Mr. Menhart appears to stand alone in this belief. Such uniqueness is actually quite amazing in this day and age, especially when you consider people have little difficulty mustering multitudes to support theories of a flat earth, galactic overpopulation, the profitability of multilevel marketing and even that George Lopez is funny.

In furtherance of his quest for CyberLaw domination, Mr. Menhart has filed a federal trademark application to obtain exclusive rights in the term “CyberLaw” as used in association with all things legal. Well, not ALL things legal, just:

Legal document preparation and research services for attorneys;
Legal research;
Legal services; Legal services, namely, preparation of applications for trademark registration;
Consulting and legal services in the field of privacy and security laws, regulations, and requirements;
Expert witness services in legal matters in the field of intellectual property and information technology;
Providing a website that features information on the development of international law, regulations, legal policies, and legal practices in a manner that promotes global governance by all types of organizations;
Reviewing standards and practices to assure compliance with intellectual property and information technology laws and regulations;
Attorney services;
Litigation services;
Legal services, namely, trademark maintenance services;
Copyright management;
Copyright management consultation;
Registration of domain names for identification of users on a global computer network;
Arbitration;
Arbitration services;
Consultation in the field of data theft and identity theft;
Intellectual property consultation;
Intellectual property watch services;
Licensing of advertising slogans and cartoon characters;
Licensing of computer software;
Licensing of intellectual property;
Litigation consultancy;
Mediation;
Patent licensing;
Preparing and filing incorporation papers;
Providing information relating to legal affairs.

In his defense, Mr. Menhart claims to have been using the CyberLaw trademark going all the way back to 2007. As my fiancée is more than willing to attest, I have things in my fridge which date prior to his first use.

For some strange reason, an intellectual property attorney at the Electronic Frontier Foundation took issue with Mr. Menhart’s “overreaching invocations of IP rights,” even going so far as to cast aspersions upon Mr. Menhart’s common sense. Menhart responded that his trademark would only extend to “services rendered by lawyers to individuals, groups of individuals, organizations and enterprises.” I mean it is not like he is just going to say this and then change his mind after he gets the a trademark registration on a generic term. Right?

GrokLaw, among others, is not so sure when it comes to Menhart’s pledge. Given that Menhart has already asserted his CyberLawg “trademark” against another attorney, Groklaw seems to have some doubt that Menhart will not try to do the same with CyberLaw. Groklaw also points out that Menhart’s own website asserts his trademark “rights” over areas NOT related to “individualized legal advice.”

Now I could understand if a divorce lawyer was trying to monopolize DivorceLaw or a real estate lawyer going after RealEstateLaw; they are not intellectual property geeks by trade. A cyberlawyer, however, should know better than to attempt to monopolize a generic term. CyberLaw is in the dictionary, the encyclopedia, and is used ubiquitously by thousands of websites, including this one. Here are just a few examples utilizing the generic word CyberLaw in conjunction with one of the services outlined by Mr. Menhart:

Cyberlaw Central
Berkman Blog
BlawgIT
Learning Cyberlaw in Cyberspace
Stanford Law School
The New York Times
Cyberlaw.info
Harvard Law School
The Cyber Law Enforcement Organization
University of California, Berkeley
HG.org
Mishpat
Chicago-Kent College of Law
ICANN Watch

With regard to printed legal information, in addition to my own CyberLaw book, there are several other books providing legal information under the title CyberLaw. One has even been available since 1996 (although I question who is still buying a 1996 book on CyberLaw). Here is just a sampling of the books:

CyberLaw Text and Cases
Cyberlaw: Problems of Policy and Jurisprudence in the Information Age
Cyberlaw: Legal Principles of Emerging Technologies
Outlines & Highlights for CyberLaw
Cyberlaw & Its Implications
Cyberlaw and E-Commerce Regulation: An Entrepreneurial Approach
Cyberlaw: the Law of the Internet

Under 37 C.F.R. §2.33 an applicant for trademark registration must provide a sworn statement or declaration alleging:

That the applicant has adopted and is using the mark shown in the accompanying drawing; that the applicant believes it is the owner of the mark; that the mark is in use in commerce; that to the best of the declarant’s knowledge and belief, no other person has the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when applied to the goods or services of the other person, to cause confusion or mistake, or to deceive; that the specimen shows the mark as used on or in connection with the goods or services; and that the facts set forth in the application are true.

Given that I assume Mr. Menhart is aware United States trademark law is premised upon priority of use, I would be very interested in hearing his explanation as to why he believes none of the foregoing entities have the right to use the generic term CyberLaw in association with providing information relating to legal affairs, especially in light of fact that many of those uses actually predate his own alleged use by several years.

As always, any comments you may have on this issue would be most welcome.

Brett Trout

Posted in Copyright Law, Trademark Law. Tagged with , , , , , , .