Most companies believe they have a Business Continuity Plan ("BCP"). I say believe because if you haven't fully tested it within the last quarter, then Murphy's law may unfortunately prevail - the plan may not be correct or complete. According to experts, despite insurance policies (including business interruption coverage), 43% of companies that don't have a fully tested plan and experience some kind of incident never reopen; 29% more close within 3 years. Furthermore, 93% that suffer a significant data loss are out of business within 5 years.

A strong Business Continuity Plan is your only defense against the many threats that lurk close by. Whether it's a natural disaster such as a flood, earthquake, or hurricane; a man-made problem such as a power outage, no internet access, or phone failure; or other catastrophe, the plan must address all needs of your business (not just I.T. as is commonly thought).

Imagine what would happen under the worst circumstances and your company came to a grinding halt. Could you grin and bear it for a week? A day? An hour? Or is halting operations for just 10 minutes too costly? This is part of the risk management process; determining the true cost of the outage versus the investment. The true cost includes not only your loss of direct profit, but also additional expenses, loss of good will, loss of clients, lawsuits, and other costs.

For example, is there electricity to run the office and all the equipment? Phone service, so customers and vendors can get through? Internet and e-mail access? Is the building accessible and safe, so employees can do their jobs?

These, and many other questions must be addressed, along with the "what ifs". Is your plan accessible? What if it's stored on your server which is down? Perhaps you planned on using your land-lines for phone service, but in this case, they're down. Can you re-route incoming calls to some other place that's up and running and remotely service your customers and vendors? Maybe you planned on using the personal cell phones of your Customer Service staff, but what if the cell towers are down and no signal can get through? Or, if the signal is up but there's no local electricity, what happens after the batteries run out?

As you can see, creating a full-fledged Business Continuity Plan is a very detail-oriented process which assumes nothing is working and progresses from there. This spring, members of my local Association of Contingency Planners performed an invaluable test. We created a hypothetical company and brought on an impending flood. In Phase I, we tested the BCP's ability to hunker down and prepare for the storm. Then, to make the exercise more realistic, we were stopped midway and told that the hypothetical storm arrived 12 hours early, so we had to alter our plan on the fly (Phase II). Midway through, we had another monkey wrench thrown in (just like in real life) and had to once again change plans accordingly (Phase III).

What was surprising is that many of the plans had too many assumptions built in, rendering them anywhere from dubious to downright useless.

In closing, testing your plan before a catastrophe is the only way to find out about its deficiencies while there's still time to correct them. And, please remember, the people, department, or company that developed or updated the plan is the worst choice fortesting the plan. Similar to having a financial audit; the accountants who prepared your books cannot audit their own work.

I hope this helps you in avoiding future problems. Please remember our trademark - "Don't confuse Good Luck with Good Planning tm" --- just because you haven't yet experienced a disaster doesn't mean you are prepared for it.

For further information, contact Matthew H. Stern, CDP CCP CCE, the president and founder of The CIO Source, Inc., a New York firm specializing in I.T. Management and Risk Mitigation.  He can be reached at grr1@theCIOsource.com.

GoPets Ltd. v. Hise, 08-56110 (9^th Cir. Sept. 22, 2011).

Edward Hise registered the domain name <gopets.com> in March 1999; he had developed a marketing plan for <gopets.com> in connection with a marketing class he was then taking. GoPets Ltd. was founded in Korea in 2004 and created a computer game involving virtual pet. GoPets made several efforts to purchase the domain name from Hise, but since Hise would not sell in 2006 GoPets initiated a proceeding under the Uniform Domain Name Dispute Resolution Policy ("UDRP") with the WIPO. The WIPO panel ruled in favor of Hise, finding that the domain name had not been registered in bad faith because it was registered five years before GoPets was founded.

After the WIPO panel's ruling, GoPets made another effort to purchase the domain name. In response, Hise sent a letter in which he threatened to engage in competitive metatagging if GoPets did not purchase the domain name at Hise's price. Two days later Hise transferred the domain name to his company, Digital Overture. In addition, Hise added content to the website and registered other domain names similar to <gopets.com>.

In March 2007 GoPets filed a lawsuit against Hise alleging, among other things, cybersquatting. GoPets moved for summary judgment, arguing that Digital Overture had not acted in good faith because it was not the original registrant of the domain name <gopets.com> and that Hise had acted in bad faith by registering the additional domain names.  The district court ruled in favor of GoPets. Hise appealed, and the court of appeals reversed. The court of appeals explained that property is generally alienable, and that right is not lost because the original registrant of the domain name transferred it to a subsequent owner; the court could not find any language in the AntiCybersquatting Consumer Protection Act indicating that a right belonging to an initial registrant of a domain name is lost when the domain name is transferred to a subsequent owner. As to the later registered domain names, the court of appeals affirmed the lower court's ruling, finding that Hise had registered those domain names in order to pressure GoPets into purchasing <gopets.com>.

For further information, contact Marc P. Misthal, whose practice includes counseling clients on domain name issues.

It is worth noting, then, when Apple tries something new... and fails.

This was precisely the case when the company filed a trademark application for the term MULTI-TOUCH for handheld electronic devices, like the iPhone and iPad, and received a rejection from the U.S. Trademark Office. The Examining Attorney held that "multi-touch" identifies a type of touchscreen interface which "allows a user to manipulate and control the functions of an electronic device by using more than one finger simultaneously." Since the Examiner found PTO found the MULTI-TOUCH mark descriptive of Apple's goods, registration was refused.

To overcome the rejection, Apple amended its application to assert that the public had come to associate the MULTI-TOUCH mark with Apple, and submitted evidence supporting this. The Examiner deemed Apple's evidence insufficient to sustain an acquired distinctiveness claim, and issued a final Office Action maintaining the descriptiveness refusal.

Apple then appealed the Examiner's refusal to the Trademark Trial and Appeal Board. After a review of the evidence, including articles that mentioned use of the "multi-touch" term in connection with iPhone's competitors - the Google's Android platform, Hewlett-Packard's TouchSmart and the HTC Nexus - the Board found that "multi-touch" identifies the technology, and describes how a user operates the device - and was thereby highly descriptive of a feature of the identified goods.

The Board the turned to whether Apple had established that the MULTI-TOUCH term had acquired distinctiveness and reviewed the evidence Apple submitted.Apple's evidence consisted predominantly of articles and webpages describing the iPhone, and the Board succinctly noted that while the iPhone is a very successful product, the applied-for mark was not IPHONE, but MULTI-TOUCH. As a result, the evidence regarding the success, sales volume and advertising expenditures of the iPhone did not establish that the public associates the term MULTI-TOUCH with Apple as its source through, for example, evidence revealing how long the term was used on its website, and what levels of traffic it garnered. Further, evidence did not suggest that MULTI-TOUCH had been used on the goods or even the packaging. In addition, the company had only used the MULTI-TOUCH mark for two and a half years.

In the end, the Board stated that due to the highly descriptive nature of the MULTI-TOUCH mark, it required more evidence to find that the designation had become distinctive of Apple's goods. Thus, for now, the company cannot assert exclusive rights to the MULTI-TOUCH term. However, given its affinity for success, one can surmise that Apple will try again to secure a registration for MULTI-TOUCH.

For further information, contact Rachel M. Weiss, whose practice includes counseling clients on prosecuting trademark applications in the Trademark Office.