27 September 2002. Spying Lawyer X by the coffee machine, Partner Auspicious excuses himself from a fun, increasingly passionate, discussion about local sports and politics. He suddenly remembers a client's question. Seeing Lawyer X reminds him that he must soon send a response.
He greets Lawyer X and pours himself a cup of coffee. They chat briefly about local legal industry buzz. At a break in the conversation, Auspicious asks, "You remember about a year and half ago, you suggested some strategies for monitoring the use of a trademark on the Internet?"
The rising pitch of the partner's voice signifies a question, but he continues without waiting for an answer. Lawyer X dreads conversations that begin with the expectation that he should recall research advice given 18 months ago. He's lucky if he remembers the work he performed 18 days ago!
"The owners of 'The Virtual Chase' wanted strategies for tracking the use of their new mark," Auspicious reminds him. "They're back with the same question. They say some of the sources we suggested no longer exist. They also want to know if we've discovered any newer techniques. Any ideas?"
X stalls for time. He recalls the mark, but not the tracking strategies he suggested. He constantly empties his mind of information having short-lived value to him. In any event, the dynamic nature of the Web, coupled with the need for creativity in research, demands that he approach even similar questions as if they were new. Or at least, this is what he thinks in silent defense of his forgetfulness.
"Let me review the research memo. I'll get back to you later today," Lawyer X offers.
Change occurs at such a fast pace on the Internet that 18 months seem like forever. During the time since Lawyer X wrote the memo
Web," Law Office Computing, Dec/Jan 2001), search engine crawlers have improved so that they now locate and index new or changed Web pages faster, and find content that previously eluded them. One engine, to which he referred, no longer exists (Go.com). Another transferred ownership and replaced its technology (Excite). Still others changed names (GoTo.com), closed to public access (Northern Light), or shut down an expert search interface (Raging Search).
A resource he had recommended for monitoring Usenet postings - Deja.com - closed for a short time, and then returned under the auspices of
Google. Two of the tracking services -- The Informant and
TracerLock - merged. Another - EOMonitor - closed, while Mind-it converted to a commercial service with a new Web
address (The Mind-it service previously at www.mymindit.com redirects
to a page error. It appears that the service is no longer available.).
Perhaps more importantly, two services - MarkMonitor and
TrademarkBots - surfaced to fill a much-need gap. TrademarkBots tracks the use of trademarks in domain names, publications and catalogs, message boards, the publicly-accessible Web, newspapers, Usenet groups, Web feeds, and trademark databases. Its sources include several -- like Google, AltaVista, Motley Fool, and others -- that diligent trademark owners previously had to query directly and frequently to achieve the same results. TrademarkBots even finds potential infringements in the use of keywords that generate banner advertising at major search engines. Moreover, it packages query results in easy-to-read reports, and then sends the subscriber email notification about their availability.
Whereas TrademarkBots is a tracking service, MarkMonitor serves as both a monitoring and research service. Lawyer X accesses MarkMonitor via his firm's Lexis.com account. After signing on to
Lexis.com, look for a link to the Practice Area Pages. Then expand the Intellectual Property menu and select Trademark & Copyright. A link to MarkMonitor appears under the tab, Trademark Search Services.
MarkMonitor provides several tracking tools. eDomainmonitor identifies the owners of potentially infringing domain names. eNetmonitor queries multiple search engines for the use of a trademark on Web pages. eLinkmonitor finds links to a brand's Web site, which may uncover the disparaging use of a trademark or its abuse at a pornographic Web site. eSitemonitor combs a single Web site for potential infringements. The Web site may be a competitor's, or your own for auditing or compliance purposes. eBannermonitor examines banner ads triggered by brand name queries at major search engines.
For tracking purposes, you may configure each service to run daily, weekly, or monthly. The resulting reports will appear in your MarkMonitor inbox. Those who access MarkMonitor directly (not via Lexis.com) may configure their account so that they receive email notification about newly arrived tracking reports. Lexis disables this feature, but MarkMonitor provides a workaround upon request.
MarkMonitor allows for both single word and phrase searching, except when using the tool, eDomainmonitor. Because domain names consist of a string of characters, searching a phrase generates an error message. How should you use it to monitor domain registrations containing famous names or brands like Britney Spears, Birds Eye, or Virtual Chase? Use a wildcard. For instance, set up a domain tracking query for Virtual Chase like this: virtual*chas*. It retrieves virtualchaser.com, virtualchassis.com, virtualpurchase.com, and others.
How might you use MarkMonitor as a research tool? ReverseWhois, another MarkMonitor utility, identifies domain name owners. Use it to discover domains owned by a competitor or cybersquatter.
Imagine that your client wants to trademark a certain name. The results of the due diligence research show no potentially conflicting trademarks or common law uses and you encourage the client to file an intent-to-use application. But eDomainmonitor later uncovers troublesome domain names owned by one individual. The person's vague somewhat incoherent response to your email question about his use of the domains leaves you wondering about the nature of his business, and concerned that he may be a cybersquatter.
ReverseWhois helps to identify the latter. Its database contains more than 80% of all gTLDs worldwide.
Another currently free utility - NameDroppers.com - also serves as a useful domain name research service. It covers U.S. TLDs ending in .edu, .com, .net, and .org. You cannot query it by owner name, but you can enter your brand regardless of the number of words that it comprises. Since NameDroppers.com automatically truncates queries, consider entering a truncated form of your trademark. For example, to search for domains containing Virtual Chase, enter: virtual chas.
Remember to check the option for "only registered" domains; otherwise the service will provide suggested domains. For the greatest number of results, also check "any order." This query finds domains like virtualchase.com, myvirtualpurchasing.com, and virtualpurchasingagent.net.
NameDroppers.com does not offer a tracking service, but with a little help from
InfoMinder, you can create your own. First, run your brand query at NameDroppers.com. Examine the Web address on the search results page. It contains your query.
At InfoMinder, click the Create tab and paste the NameDroppers.com search results Web address into the URL line. InfoMinder will send notification about changes to this page to your inbox.
You may use this same strategy at search engines, but you may want to tweak their default settings, or at least be cognizant of their limitations. At Google, for instance, edit your preferences so that 1) it searches for results in any language, 2) it does not filter your query, and 3) it displays 100 results per page. Then enter your brand as a keyword query, enclosing it in quotation marks, if necessary. Eliminate results from your own domain like this: "virtual chase" -site:virtualchase.com. After obtaining the initial search results, set up TrackEngine or InfoMinder as described.
"Whoa!" exclaims Auspicious, after X sums up the changes in resources and search strategies. "It's like a whole new world out there. How in the world do you keep up with this?"
"I monitor a few blogs and listservs. Scan industry literature and news. But mostly," X admits, "I find out when I need to know."
"Blogs?" the partner repeats. "Is that, er, decent?"
Lawyer X swallows a laugh. "Mostly," he replies mysteriously.