In this issue
Justice For All Ball Page 3 and 4
Please join us for our February Side Bar presentation 20th Judicial District Court Operations Update, presented by Judge Mulvahill, Judge Malkinson, Judge Salomone, and Judge Butler. This update will provide judicial updates from multiple perspectives, including county court, domestic relations, civil, and criminal. For some background on the current status of the courts in relation to COVID-19 developments, Trip DeMuth of the Professionalism Committee has composed an article reporting on the judicial response to the pandemic to date. Please click here to view that article. The February Side Bar will be held on Thursday, February 11 at 4:00 pm in the BCBA Zoom Meeting Room. The virtual link and presentation materials will be sent out the day prior to the event. Please click here to register
CALENDAR OF EVENTS 2 JUSTICE FOR ALL BALL 2021 3-4 PRESIDENTS PAGE 5 INTELLECTUAL PROPERTY ARTICLE 6-8 EVICTION ASSISTANCE ANNOUCEMENT 9 PROFESSIONALISM & PRO BONO 10 CLASSIFIEDS 11
February side bar presentation
February 2021
calendar of events
Invest in justice. Invest in the future. Invest in the community.
The Boulder County Bar Foundation is a 501(c)(3) that invests donations from its Fellows in an endowment fund, the proceeds of which are awarded to legally-related 501(c)(3) organizations in Boulder County. Grants have regularly been awarded to help fund legal services for low income, immigrant and displaced members of the community; high school mock trial teams and court-ordered co-parenting classes as well as court access for victims of domestic violence. The Foundation always has grant applications for more than it can give. Become a Fellow and help grow the endowment - it's good for justice, it's good for the future, it's good for the community and it's good for you.
Wednesday, February 3 EMPLOYMENT CLE : LEGISLATIVE UPDATE Presented by Jennifer Lorenz 12:00 - 1:00 PM CLE @ BCBA Zoom Meeting Room $25 CLE | $15 New/Young Lawyer | $10 No CLE Please click here to register Thursday, February 11 SIDE BAR CLE: 20TH JUDICIAL DISTRICT COURT OPERATIONS UPDATE Presented by Judge Mulvahill, Judge Malkinson, Judge Salomone, and Judge Butler 4:00 - 5:00 PM CLE @ BCBA Zoom Meeting Room $25 CLE | $15 New/Young Lawyer | $10 No CLE Please click here to register Tuesday, February 16 CRIMINAL CLE: ROUNDTABLE WITH THE DISTRICT ATTORNEYS Presented by District Attorney Michael Dougherty and Deputy DAs Ken Kupfner and Christine Rinke 3:00 - 5:00 PM CLE @ BCBA Zoom Meeting Room $25 CLE | $15 New/Young Lawyer | $10 No CLE Please click here to register Tuesday, February 23 CIVIL LITIGATION CLE: USING COLORADO'S NEW ANTI-SLAPP LAW TO PROTECT VICTIMS OF ABUSIVE LITIGATION Presented by Kazi Houston 4:00 - 5:00 PM CLE @ BCBA Zoom Meeting Room $25 CLE | $15 New/Young Lawyer | $10 No CLE Please click here to register Thursday, February 25 ALL-BAR CLE: SELF-CARE (A.K.A. SELF-PRESERVATION) FOR LAWYERS Presented by Michelle Rafik 4:00 - 5:00 PM CLE @ BCBA Zoom Meeting Room $25 CLE | $15 New/Young Lawyer | $10 No CLE Please click here to register For information about the BCBA's current Home Study CLE offerings, please visit page 9 of this newsletter.
19 years ago, the Boulder County Bar Association started a fundraiser called Food Wine Jazz Art to benefit Colorado Legal Services. While this event was a great success, recent cuts to the federal budget made us realize four years ago that we needed to rebrand our event to draw a larger crowd and raise even more money for legal services. The 2018 Boulder County Justice For All Ball was the beginning of our new era. We kept the event geared toward the legal community, but expanded further to include partners, clients, and friends. We held the event on a weekend evening to accommodate those who find a weeknight event hard to attend and brought in members who have never attended a bar event. The event was a huge success. This year, the pandemic has changed everything. The need for free legal services is greater than ever, but funding is reduced because many local municipalities are struggling. We debated whether to move the ball to a later date, but realized there are no guarantees. With some creative thinking, we decided to hold the ball virtually. It will be a fantastic event with Colorado Attorney General Phil Weiser giving the keynote address, and Colorado Supreme Court Justice Maria Berkenkotter speaking about the importance of legal services. We will also have music from Jessica Ahmed of the Diamond Orchestra and bluegrass music from AWD. There will also be an opportunity to win our annual wine wagon with a spirited round of musical bingo! We look forward to seeing you virtually at the Justice For All Ball!
Saturday, March 6 7:00 pm to 9:00 pm Virtual Attendance via Zoom Click here to register
About JFAB
2021 Boulder County Bar Foundation JUSTICE FOR ALL BALL
JUSTICE FOR ALL BALL
Justice For All Ball Available Sponsorships
Philanthropic Donation pledge - $5,000 Number of sponsorships available - 1 Included tickets - 30 Mentions/Exposure Attendee E-Flyer Logo PR: Partner Quote in Daily Camera and placed PR Article BCBA website for one year on Find A Lawyer page Firm name and logo in all PR articles Event website Signage/banners at virtual event Speaking opportunity at beginning of event Altruistic Donation pledge - $2,500 Number of sponsorships available - 3 Included tickets - 20 Mentions/Exposure BCBA website for one year on Find A Lawyer page Firm name and logo in all PR articles Event website Signage/banners at virtual event Magnanimous Donation pledge - $1,000 Number of sponsorships available - 5 Included tickets - 15 Mentions/Exposure BCBA website for one year on Find A Lawyer page Firm name and logo in all PR articles Event website Signage/banners at virtual event Humanitarian Donation pledge - $500 Number of sponsorships available - 10 Included tickets - 10 Mentions/Exposure Firm name in all PR articles Event website Signage/banners at virtual event
MAKE A DIFFERENCE!
Questions? Suggestions? Please contact Executive Director Laura Ruth at 303-440-4758 or laura@boulder-bar.org.
president's page
Who would go to a CLE on wellness? I’ll admit I’d be one of the last to go. Why put that out there? Sure, if any one of us is having a hard time, 99% of our bar membership would extend a hand in support. But, the fear is of that one person who’d just knife you in the back. Instead, my approach to wellness has been your typical, type-A, male response: lean in shoulder first, work twice as hard, and get through it. This kind of thinking is outdated and just plain wrong. As lawyers, we’ve surrounded ourselves with other people’s problems; conflict and struggle are our bread and butter. At a minimum, our clients ask us to deal with their problems, but most simply expect us to fix what they can’t. This is a heavy burden under normal circumstances. It feels even heavier during COVID, without life-via-Zoom reality. To use an old cycling cliché, we’re all on the rivet, at the practical limit of what we can really handle. For a year now we’ve been without most of our usual forms of stress relief. Dinner with friends? Travel? Gym? A weekend at the Broadmoor? Gone. Our interactions with everyone - clients, colleagues, counsel, the court, friends family - are strained to say the least. We’re all stressed, and we’re all struggling, whether we’re willing to admit it or not. Worse, as we now work from home, it’s even more difficult to keep our conflict-filled professional lives separate from our personal lives. Sharply-contested depositions, hearings, and trials are now in our living rooms. One of the best pieces of advice I’ve received in my career came from a friend who told me to always remember to leave the mental briefcase at the door. How do you do that now? A colleague far smarter and more experienced than I suggested a drive around the block before and after the work day. The Bar is hosting a wellness CLE later this month with Michelle Rafik on ways to help manage our professional lives that can increase productivity and reduce stress (please click here to register). I hope you’ll join me there. And until we can see each other again, I hope we all can remember to see the humanity in our fellow lawyers and add just a little more compassion throughout or daily acts as professionals. And, to whatever motion you’re about to file that will make your life a little easier without having any impact on my client’s substantive rights: unopposed. If you like what we’ve been doing at the Bar, if you hate what we’ve been doing, or if you have suggestions on how we can do better, please drop me a line at jrose@lyonsgaddis.com.
jeff rose
Welcome new bcba members
Jack A Wold-McGimsey Joshua English David Nussbaum Christi A Sweeney Donald P Delaney Daniel Flynn Adam Cribari Bailey Geisen Mark J Grimaldi Kayla Jankowski Leah M Fugere Alexandra Haggarty Kathleen F Guilfoyle Austin P Dominick Sean Di Ciolli Zachary DeFelice
Nadya Davis
nadya davis & madelon lapidus
For years, domain names were restricted to twenty-two basic generic top-level domains (gTLDs), including the popular “.com,” “.net,” and “.org.” In late 2013, the Internet Corporation for Assigned Names and Numbers (ICANN), the non-profit responsible for maintaining the foundational infrastructure of the internet, broadened the variety of gTLD options—including, as of 2014, the controversial gTLD “.sucks.” Since then, many famous brands have had to decide what to do—or not to do—in response to the use of their marks in the domain names of what have become known as “gripe sites.”This article discusses the tension between cybersquatting and free speech, including a new wrinkle in that well-tread tapestry involving the Everything.Sucks platform. Traditional Domain Enforcement Options A traditionally infringing domain name incorporates a brand owner’s mark along with a generic, connotatively neutral gTLD (i.e., brandname.com). It may consist solely of the trademark and the gTLD, or it may combine the trademark with additional terms. As long as these additional terms do not change the average consumer’s perception of the domain as tied to the trademark, brand owners have a number of resources at their disposal for combatting the infringement. The most common, and often most effective, mechanism is to bring a proceeding under the Uniform Dispute Resolution Policy (UDRP), to which all registrars and registrants are bound (citation 1). Initiation of a UDRP results in immediate locking of the domain, and a favorable decision will order transfer of the infringing domain to the brand owner. For classically infringing domains, which often seek to trade off the goodwill of a brand by offering competitive products or profiting from click-through advertising revenue, the UDRP is an excellent tool. In addition to the UDRP, brand owners faced with traditional domain infringement can initiate a Uniform Rapid Suspension System (URS) proceeding (less expensive than a UDRP, but domains found to be infringing are only suspended rather than transferred); file a lawsuit, including under the Anti-Cybersquatting Consumer Protection Act (ACPA); and, in the event the website content is also infringing, submit “take-down” letters to website facilitators, such as the webhost, payment processors, ad distributors, and e-commerce platforms. The Difficulty with Traditional Gripe Sites In order to succeed under a UDRP (or a URS, or the ACPA), a brand owner must establish aprima faciecase that the owner of the disputed domain registered and is using the name in bad faith. The problem with gripe sites is that their very nature suggests good faith criticism and the availability of a potent free speech defense. It also often complicates a showing of likelihood of confusion (one of the ways to make a “bad faith” showing under the UDRP) because an internet user happening across the domain name “brandname.sucks” (or “brandnamesucks.com”), the argument goes, is likely to assume the associated webpage isunaffiliated with, and indeed critical of, the underlying brand name. Where a gripe site appears to have been created specifically and maliciously to harm the commercial interests of the trademark owner, UDRP Panels have been more sympathetic. For example, slanderous gripe sites the purpose of which is to retributively harm a brand owner’s business (rather than express a genuine opinion or offer a neutral forum for reviews) are nearly always transferred to the brand owner, as are domains that resemble legitimate review or complaint sites but which feature commercial products or generate click-through advertising revenue (citation 2). But, where the disputed domain appears to be used for a legitimate and apparently non-commercial complaint site, the interests of free speech often win out, bad faith cannot be established, and brand owners are unable to wrest the malicious domain from its owner without paying an often-exorbitant fee (citation 3). The line between legitimate and malicious gripe sites can be nebulous, and trademark owners are right to worry about being accused of “reverse hijacking” by these registrants (citation 4). The Rise of Everything.Sucks Riding the gripe site wave, the Everything.Sucks infrastructure was first created in 2015 and became more substantively populated in early 2020. Everything.sucks is now home to many “brandname.sucks” domains—such as fisherprice.sucks, famousfootwear.sucks, deloitte.sucks, and invisalign.sucks, just to name a few—all of which resolve to an official-looking website formatted to closely resemble a Wikipedia page dedicated to the associated brand. In June of 2020, there began a spike in sales of“.sucks” domains, with at one point over 2,000 names registered via the registrar Rebel in a span of 24 hours (citation 5). As of this writing, more than 12,000 “.sucks” domains have been registered, representing growth of about 50% since June, many of which exist on the Everything.sucks platform (citation 6). While it’s not yet known definitively, some industry commentators suspect that these Everything.Sucks pages may have actually been built by scraping the web and only reposting specificallynegativecontent relating to the brand (citation 7). Realizing the complexity of bringing a successful UDRP or other enforcement action against these “.sucks” domain names, some mark owners may look to see if the domain is available to purchase, which it often is. However, at least one industry commentator has proposed that by purchasing back these domain names, trademark owners may be unwittingly supporting a nefarious .sucks “marketplace.” As of this writing, only a handful of UDRPs involving Everything.Sucks gripe sites have been decided by arbitration panels, and the decisions have been split.Some panels have taken the websites at face value as valid gripe sites; others have found them to be part of a broader nefarious scheme to hold trademark owners hostage by creating automated micro-sites designed to resemble exercises of free speech (but which really exist only to prevent transfer of the domain via UDRP) (citation 8). More cases involving Everything.Sucks domains are pending, and the coming months should hopefully bring some clarity as to how these cases will resolve. For now, however, many brands will likely want to avoid the expense (and potentially negative published decision) associated with a UDRP, given the uncertain outcome. What To Do When All Traditional Options “Suck”? When a brand owner is in the middle of a triangle, the sides of which are cybersquatting, free speech, and potentially a new and not-yet-universally-recognized scam, what is the best move?The answer might be watch and wait (citation 9). Until (or unless) ICANN closes the loophole, Everything.Sucks (and similar potentially “fake” gripe sites) appear to be exploiting, brand owners may find themselves feeling hamstrung. However, the content on these sites often remains static, which is likely to tip off internet users regarding the validity of the sites and result in minimal web traffic, making the sites more of an annoyance than a true enforcement priority. Aggressive enforcers may consider hunting down the original creators of any scraped text appearing on the site and encouraging these content owners to submit their own DMCA takedown requests objecting to the reproduction of their original content. And of course, any demonstrably false statements or use of logos may be separately actionable. But absent such elements, given the legal quagmire on one side and distasteful possibility of inadvertently buying into a bad faith commercial scheme on the other, the best strategy may just be to de-prioritize enforcement of these sites and watch and wait for the law to catch up. Citation 1 - Click here to view page. Citation 2 - See, e.g., HBT Investments, LLC d/b/a Valley Goldmine v. Christopher D. Bussing, Case No. D2010-1326 (WIPO Sept. 24, 2010) (transferring the disputed domain because “Panels have long held the view that the right to express one’s views is not the same as the right to use another’s trademark as the platform for expression. . . . Although cloaked in the mantle of a gripe site, Respondent’s website is quite clearly a platform for Respondent to cast aspersions on the reliability of a report that portrayed his company in a negative light and his competitor in a positive light, and to otherwise sling mud.”);Diet Center Worldwide, Inc. v. Jason Akatiff, D2012-1609 (WIPO Oct. 5, 2012) (refusing to find the disputed domain name to be a “legitimate gripe site” “[s]ince the website includes links to various profit-making enterprises, and presumably Respondent earns some revenue from or through those links”). Citation 3 - Of course, if a registrant does offer to sell for an exorbitant fee, this behavior can be put forward by the trademark owner as suggestive of bad faith. Citation 4 - A trademark owner seeking to capture a desired domain through the UDRP process without a good faith belief the registrant acquired the domain maliciously may be subject to a finding of “reverse domain name hijacking.” Although there are no monetary or other penalties directly associated with a finding of reverse hijacking, respondents may use such a finding to bolster, for example, unfair competition claims in subsequent litigation. Citation 5 - Click here to view page. Citation 6 - Click here to view page. Citation 7 - See, e.g., click here to view page. Citation 8 - See, e.g., NAOS v. Honey Salt Ltd., CAC 103142, August 26, 2020 (transferring <bioderma.sucks> after characterizing site’s criticism as not genuine because “Respondent’s entire endeavor seems to the Panel to be a pretext for commercial activity”);Boehringer Ingelheim Pharma GmbH & Co. KG v. Honey Salt Ltd., cAC 103141, September 1, 2020 (denying claim for <miraplex.sucks> after finding evidence failed to show intent to use site for criticism was disingenuous). Citation 9 - Some brand owners have previously argued Everything.Sucks’ placement of banner advertisements constitutes commercial activity suggestive of bad faith; however, Everything.Sucks appears to have removed banner advertisements from its sites, obviating this argument going forward. Of course, if there is demonstrable commercial activity, a trademark owner has a good argument that the site was created in bad faith.
what to do when "everything sucks"
Madelon Lapidus
"Everything sucks" continued
Do you have a job posting or classified you would like listed on the BCBA Jobs Board? 30-Day Listing Pricing which includes posting online on the BCBA Jobs Board and in the subsequent BCBA Newsletter —$40 for current BCBA members,$60 for non-members. Please click here to submit your listing
Nadya Davis is a Partner in the Boulder office of Holland & Hart and can be reached at ncdavis@hollandhart.com Madelon Lapidus is an Associate in the Denver office of Holland & Hart and can be reached at mllapidus@hollandhart.com
Regarding eviction assistance
BCBA Home Study Programs are now live! We will be adding more in the coming weeks: please watch our Events page for new offerings. BCBA Home Study CLE On Judicial History & Diversity in Colorado Presented by Judge Gary Jackson, Sumi Lee, and Patricia Jarzobski $25 CLE | $15 New/Young Lawyer | $10 No CLE Please click here to register BCBA Home Study CLE How the Practice of Law Has Changed Presented by Judge Butler and Tom Lamm $25 CLE | $15 New/Young Lawyer | $10 No CLE Please click here to register BCBA Home Study CLE Status Update on the Climate Change Lawsuit Presented by Marco Simons $25 CLE | $15 New/Young Lawyer | $10 No CLE Please click here to register
Bridge to Justice, a 501(c)(3) nonprofit legal services organization committed to providing equal access to justice, has received a grant from the City of Boulder to advise and represent City of Boulder residents facing eviction. The grant arose from the city’s No Evictions Without Representation ballot item. This item, approved by voters in November 2020, provides legal representation to people facing eviction. The grant will enable Bridge to Justice attorneys to attend eviction return hearings in Boulder and advise tenants regarding defenses and negotiation strategies. Tenants are advised to contact Bridge to Justice prior to the eviction return hearing to allow for possible representation and negotiation. City of Boulder residents facing eviction should call Bridge to Justice at (303) 443-1038, x104 or the City of Boulder at (303) 441-3414.
lawyer announcement
professionalism on call
Interested in a Pro Bono case? Please call Kellie at 303-449-2197. CLE credits available for pro bono service.
pro bono referrals
thanks to our volunteers The BCBA Virtual Legal Clinic remains ongoing and has served over 200 people to date. Thank you to the attorneys who serve as volunteers:
pro bono corner
Dan Droege Jennifer Huston Sherri Murgallis Craig Small Scott Hamerslough Starla Doyal Jeff Skovron Lila Sol Georgiana Scott Amy Stengel Laura Herndon Maki Iatridis K.C. Cunilio Fern O'Brien George Farmer TJ Willard David Harrison Ann England Beth Kelley Dipak Patel Lindsey Killion Karen Burns Susan Spaulding Chris Lane Connie Eyester Beth Montague Kurt Hofgard
pro se volunteers
Thank you to Starla Doyal and Kathleen Franco for assisting at the December Pro Se Clinic.
boulder county free legal clinic The Boulder County Free Legal Clinics have been replaced with our Virtual Legal Clinic until further notice.
One case was referred in the month of December. Thank you to the following attorneys: Bruce Wiener
February 1 Lee Strickler 303.443.6690 February 8 Mark Langston 303.440.9684 February 15 Meghan Pound 303.443.8010 February 22 Tom Rodriguez 303.604.6030 The Professionalism Committee assists lawyers, clients, and other members of the community with questions or complaints about behavior by lawyers that fails to meet generally accepted standards of professionalism and courtesy, or that is contrary to the BCBA Principles of Professionalism. The Professionalism Committee does not address allegations of criminal or ethical violations by lawyers, as regulated by the Colorado Rules of Professional Conduct, and any such violations should be addressed to the Office of Attorney Regulation Counsel.
classified ads
BOUTIQUE PI FIRM SEEKS ASSOCIATE. Established, boutique personal injury law firm in Boulder seeks a full time associate attorney with a minimum of 3 years of personal injury experience to join our team. Successful candidates should have excellent written and oral communication skills, be highly organized and motivated, possess excellent analytical and research skills, and have litigation and/or trial experience. Candidates should be able to handle a personal injury matter from intake to conclusion. Excellent benefits, including health insurance and 401K offered. Competitive salary commensurate with experience. Please submit cover letter and a resume to jttenge@tengelaw.com. SEEKING LEGAL SECRETARY/PARALEGAL. Part-time 20 hrs/wk. $20-$27/hr. Good typing skills a must including typing from dictation as well as ability to take instruction and work independently. Practice areas are estate planning, business (including entity formation, purchases and sales), real estate, and probate. Some experience a plus. Salary growth based on experience and ability. Contact gail@oshlaw.com with resume. OFFICE SPACE FOR LEASE. Best Attorney Office Space for Lease at 3223 Arapahoe. Three well-lit, sunny and large third-floor offices, including the best room with direct views of flatirons and front range. We've been here 10 years and love the building. Tons of parking for you and your clients with no parking fees. Easy access to Foothills Parkway. Attorneys and mediators currently occupy all the other offices on the floor. Receptionist services included and all the necessary office furnishings and equipment. Shower, kitchen, elevator, two large conference rooms, copy room, and a nice lobby. Great landlord who really takes care of the building and surrounding planted areas. Term and price flexible. Contact Cam at (303) 579-9609 or by email cam@camtylerlaw.com. PARALEGAL/LEGAL ASSISTANT WANTED. Paralegal/Legal Assistant, part or full-time, remote or in person. Boulder PI firm seeks an experienced litigation paralegal or legal assistant. The preferred candidate has knowledge/experience working in personal injury (car accidents, malpractice, Workers' Compensation and/or Social Security Disability). The position requires attention to detail, good writing and communication skills, and organization. Please email Cam Tyler directly with a resume and cover letter at cam@camtylerlaw.com.This position will be a great fit for an experienced worker looking to do less than full-time. Benefits and hours flexible. OFFICE SPACE FOR SUB-LEASE IN LANDMARK SPRUCE STREET MANSION. Perfect for attorneys, therapists, CPA's, IT or other interested professionals. Centrally located on 11th and Spruce in downtown Boulder. Access to large conference room, kitchen, waiting area, two bathrooms, parking pass, outdoor patio. Walking distance to Pearl Street Mall and Boulder Creek Path. $1,350/month. Contact Bruce at (720) 307-4956 or by email: bruce@boulderbridgetojustice.org.
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THE BCBA NEWSLETTER IS A MONTHLY ELECTRONIC PUBLICATION BY THE BOULDER COUNTY BAR ASSOCIATION. ARTICLES BY GUEST LAWYERS MAY NOT BE REPRODUCED WITHOUT PERMISSION FROM THE BOULDER COUNTY BAR ASSOCIATION OR THE AUTHORS. COMMERCIAL ADVERTISING INFORMATION IS AVAILABLE BY CONTACTING laura@boulder-bar.org OR THE BAR'S WEBSITE www.boulder-bar.org