Intellectual Property: What iGaming Webmasters Need to Know

© 2010 Casino City and Gambling Portal Webmasters Association

Budapest Affiliate Conference

8 October 2010

Intellectual Property:

What iGaming Webmasters Need to Know

Legal Disclaimer• The contents of this presentation simply represent

principles followed by the presenter and should not be considered legal advise.

• Laws vary from jurisdiction to jurisdiction and practices that are reasonable and prudent in one jurisdiction may not be either reasonable or prudent in another jurisdiction.

• Always consult and rely on the advise of an attorney if you have any question about the law and the way it applies to your situation.


What is Copyright?• A set of rights granted to the “creator” or “owner”

of an original work.• The right to copy, distribute and adapt the work.• Copyright does not protect ideas, only their

expression.• Copyright lasts for a specific time period (a

minimum of 50 years after the author’s death under the Berne Convention) after which a work is said to enter the public domain.


Copyright Limitations• The Berne Convention specifies limitations and

exceptions to copyright that enable reproduction without the author’s permission in some situations.

• Actual limitations have a degree of uniformity but can vary between countries.

• In the U.S. the fair use doctrine applies.• In the U.K. and many Commonwealth countries

a similar concept of fair dealing applies.


Fair Use Doctrine• Allows use of a copyrighted work for purposes such

as criticism, comment, news reporting, teaching, scholarship or research.

• Factors in determining fair use:1. the purpose and character of the use, including whether it is of

a commercial nature or for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.


Purpose and Character• Does the use stimulate creativity for the enrichment

of the general public?

• Does the use aim only to replace the original for reasons of personal profit?

• A fair use advances knowledge or art through the addition of something new.

• A fair use is transformative and not just derivative.

• Examples: Translation of an article to a different language is simply derivative. A parody can be transformative.


Nature of the Copied Work• Fictional work has greater protection than non-

fictional work.

• Facts and ideas cannot be copyrighted – only their particular expression or fixation merits protection.

• Social usefulness can argue against copyright for a particular fixation (stills from a film may be exempt from copyright due to social usefulness)

• Whether a work has previously been published if the author wishes it to remain unpublished.


Amount and Substantiality• The smaller the quantity or percentage of the original

copyrighted work used the more likely the sample used will be considered fair use.

• But copying an entire television program for the purpose of time shifting has been held to be fair use.

• And copying an entire photo to use as a thumbnail in online search results has been held to be fair use.

• But copying fewer than 400 words from a full-length book was found to be copyright infringement in a case where the words represented “the heart of the book.”


Effect Upon Work’s Value• Does the use harm the copyright owner’s market?

• Would the use, if widespread, harm the market of the original.

• Market harm caused by a parody or negative review is not a factor when determining if a use is fair whereas harm caused through satire is a factor.

• For commercial uses the burden of proof rests with the defendant in a copyright claim.

• For non-commercial uses the burden of proof rests with the copyright holder.



Does Linking Authorize Use?• Misunderstanding: It is ok to republish online work as

long as I link to the original.• Reality: Republication requires permission from the

copyright holder. Some copyright holders may give permission to repost content in exchange for a link or multiple links, but other copyright holders may deny permission or specify other requirements. Some content takes a lot of work to product and a link is not enough compensation – it is up to the creator to decide. The fact that the material is published online does not reduce the protection given to the content creator.


Am I Free to Copy from Wikipedia?

• Misunderstanding: It is ok to copy anything from Wikipedia.

• Reality: Some websites like Wikipedia give visitors permission to republish content with certain conditions. It is important to adhere to any conditions. For Wikipedia, the republication requirements vary from page to page and are noted at the footer of each page. Two common requirements from Wikipedia are 1) that the source is cited, and 2) that the copyright permission message is reprinted alongside the content.


Must I Follow Every Condition?• Misunderstanding: If the reprinting conditions don’t seem important to me,

I don’t have to follow them.• Reality: Sources like ArticleBase, eZineArticles, and other article directories

give visitors permission to use articles if the links in the articles remain in place. Other sources give permission to use articles as long as the original source is mentioned even without an active link, or to use a work in its entirety, but not partially. Some webmasters take the partial permission to be a blanket permission to an article even without adhering to the conditions – don’t do this. It is the right of the author and copyright holder to decide how their work can be used whether or not the conditions make sense to you or are the ones you would have requested or not.

• An example: Some webmasters write material for article directories as a link building strategy with the requirement that certain in-content links be retained. They view the links as fair “compensation” for use of the content. But because article directories are seen as “free content” some people republish the articles without retaining the required in-content links. Doing this is a copyright violation because terms the author required for copying to be authorized were not followed. The author’s requested compensation is reduced to something they didn’t agree, and that is not allowed.


Creative Commons Licenses• Misunderstanding: I have to read through pages and pages

every time I think about using something. There is no easy solution.

• Reality: The organization Creative Commons provides license names to help categorize several common types of conditions – precisely to avoid having long sets of conditions that are hard to understand or unfamiliar. They provide six main license types so that you can become familiar with common sets of conditions by name without needing to read through individual conditions for every site or article. The types of conditions their six main licenses cover include whether the work needs to be attributed, whether it can be shared without noting the license on the page it is shared on, whether it needs to be kept as-is or if changes can be made, and whether it can be used commercially. Many major sources (such as Wikipedia) use Creative Commons standard license descriptions, which means once you understand them you don’t need to keep rereading them every time.


Copyrights Have to be Registered• Misunderstanding: Copyright does not apply

unless the creator/owner has registered the work or stated that the material is copyright protected.

• Reality: Creations can be registered to provide additional protections, but all work – registered or not – is considered copyrighted and its use is governed by the creator’s conditions. The protection is not waived simply because no reminder is provided.


Press Releases Are Copyrighted• Misunderstanding: If I place a press release on my

website other webmasters cannot copy it or publish an altered version without my permission.

• Reality: Published press releases include an implicit authorization for other media outlets to use the material, and to restructure the material as they see fit when it is republished. Do not label an article as a press release unless you want others to use and alter it to generate publicity for you (including removing links). But also, do not assume that an article identified as a press release on another site is the original unaltered press release you can use.


www.RighthavenLawsuits.com


DCMA Safe Harbor• Potentially infringing material is stored and transmitted through networks of third

parties like web site hosting services, Internet service providers, forum operators, and search engines that link to materials on the Web.

• The Digital Millennium Copyright Act (DMCA) protects third parties from liability for information posted or transmitted by subscribers if they quickly remove or disable access to material identified in a copyright holder's complaint.

• To qualify for safe harbor protection, a service provider who hosts content must: 1. have no knowledge of, or financial benefit from, infringing activity on its network 2. have a copyright policy and provide proper notification of that policy to its subscribers 3. list an agent to deal with copyright complaints

• While the safe harbor provisions provide a way for individuals to object to the removal of their materials once taken down, they do not require service providers to notify those individuals before their allegedly infringing materials are removed.

• If the material on your site does not infringe the intellectual property rights of a copyright owner and it has been improperly removed, you can file a counter-notice with the service provider, who must transmit it to the person who made the complaint.

• If the copyright owner does not notify the service provider within 14 business days that it has filed a claim against you in court, your materials can be restored.


What is a Trademark?

• Trademarks are symbols (like logos and brand names) that distinguish the source of goods and services in the marketplace.

• A trade mark must be distinctive for the goods and services provided.

• It must be capable of being recognised as a sign that differentiates your goods or service as different from someone else's.


How Are Trademarks Registered?• Trademark registration can be in a jurisdiction like the European Union or

in a specific country. In the US trademarks can be registered in a state.• An International system for the registration of trademarks, known as the

Madrid System, was established in 1891 and is administered by the World Intellectual Property Organization (WIPO).

• Trademark registration provides protection for within a jurisdiction for specific types of goods and services grouped into 45 international classes.

Class Examples of Goods and Services

9 Computers, Data Storage Media

28 Games

38 Telecommunications

41 Education, Entertainment


Trademark Registration Restrictions

• Cannot be confusingly similar to an existing or pending trademark registration for related goods or services.

• Cannot primarily be merely descriptive or deceptively misdescriptive of the goods or services. Characteristics like quality, quantity, purpose, value and geographical origin are considered to be descriptive.

• Cannot have become customary in the line of business in which the trademark is used.


Registered Trade Mark Benefits

• Serves as constructive notice to others of your ownership of the trademark.

• Allows you to take legal action against anyone who uses your trademark without permission.

• Required for the government to take action against counterfeiters using your trade mark.

• A registered trademark is your property, so you can sell it, or grant others a licence to use it.

• Domain registrars consider registered trademark owners to have special rights in their marks.


US Trademark Registration• Patent and Trademark Office• Website: www.uspto.gov• Electronic application fee: $275 or $325/class• Renewal in years 5,10,20… Fee: $400/class

Mark Class Application Registered

Casino City 41 Jan 2003 Jan 2004

Casinomeister 38 Oct 2005 Nov 2007

Gamtrak 9 July 2009 March 2010


UK Trademark Registration• Intellectual Property Office• Website: www.ipo.gov.uk• Electronic application fee: £200 for one class,

£50 for each additional class• Renewal in years 10,20… Fee: £200 for one

class, £50 for each additional class

Mark Class Application Registered

Casino City 41 June 2008 October 2008


EU Trademark Registration• Office for Harmonization in the International Market• Website: oami.europa.eu• Electronic application fee: €900 for up to three

classes, €150 for each additional class• Renewal in years 10,20… Fee: €1,350 for up to

three classes, €400 for each additional class

Mark Classes Application Registered

Casinomeister 9,28,41 April 2005 June 2006


Reasons for Rejecting Registration• The applicant applied to register the mark CASINO CITY for downloadable

entertainment and game software; providing temporary use of online non downloadable entertainment and game software; Internet-based social networking services

• The registered mark is CASINO CITY for Providing information via the Internet in the fields of gaming, gambling, games of chance, horse racing, dog racing and casinos. The marks are similar.

• The goods and services of the parties are closely related: both gaming services, which can be used and/or sold together. In this case, since the applicant and the registrant have the similar marks, customers are likely to be confused and believe that the applicant’s goods emanate from the same source as the registrant’s services.

• The identification of goods is unacceptable because they fall into more than one class.

– Class 9: Downloadable entertainment and game computer software; – Class 42: Entertainment services, namely, providing temporary use of online, non-

downloadable entertainment and game computer software; – Class 45: Internet-based social networking services


ThinkGeek describes its "best-ever cease and desist letter" recently received for its April Fools' product Canned Unicorn Meat:

"The very special but also very real letter is from the National Pork Board, who claims we're infringing on the slogan "The Other White Meat," a slogan they're apparently thinking about phasing out anyways."

Canned Unicorn: The Other White Meat


Internet Trademark Infringement• Cybersquatters have registered domain names identical or

similar to trademarks with the objective of extorting vastly inflated sums of money from the owners.

• Vendors have used a competitor’s trademark in the meta tags for the vendor's website so that search engines will direct customers looking for trademarked products to the competitor's site.

• Individuals have copied trademark logos and used them on their own sites to falsely imply an authorized connection to the product.

• Sometimes these acts are clear "infringements" of the mark owner's rights; sometimes they are non-infringing “fair uses.”

• Rights may be different between countries yet a mark owner in one country may pursue a claim against a domain holder from another since the site is visible in both.

• Examples are available on www.ChillingEffects.com.

Intellectual Property: What iGaming Webmasters Need to Know

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