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information · ip · privacy

The "Lowdown" on DMCA Regulations and Take-Downs


Chances are, if you have ever posted or published content on the web, or your company operates a website, you have heard the term “take-down notice.” Perhaps you have even been on the receiving end of such a notice, claiming that content on your website is owned by a third party, and that if you do not remove the content, your website will be taken down or a lawsuit will be filed claiming copyright infringement.

These notices are part of a mechanism available to copyright owners—including those who have not registered their copyrights— under a U.S. law called the Digital Millennium Copyright Act.  This statute was enacted in the late 1990s as an attempt to bring the U.S. Copyright Act up to speed with society’s increased engagement via the Internet. The take-down procedure was introduced to provide a “safe harbor” for internet service providers that provide platforms for others to post content. Essentially, by following the procedures detailed in the DMCA, a website owner (or ISP) may be able to shelter him/herself from liability for infringement if a user posts infringing content, provided the website owner is not actively participating in or encouraging infringement and otherwise … Keep reading

To Refresh or Relaunch...That Is the Question


If you work in marketing, you know what a “brand refresh” is, and how it differs from a “brand relaunch.” Both can be equal parts perilously challenging and thrilling. And both can serve useful purposes, both in reminding customers about a product’s continued existence, and in introducing a product to a new audience as a way of increasing market share.

Legally, most trademark lawyers will face brand refreshes and rebrands with some skepticism. Our traditional view, predicated on legal principles, is that trademarks are easier to enforce and maintain if nothing changes and the branding remains utterly consistent. Making changes that undermine consistency of use can result (albeit rarely) in a loss of rights, or at least a loss in priority. But a skillful refresh is marvelous, not just because it can manage to maintain the tradition (and enforceability) of the original brand, but because seemingly subtle changes to branding can result in profound and novel messages to consumers.

Depending on scope and goals, the result of a refresh can be akin to renovating your house. You might add a new kitchen or a fresh coat of paint, and suddenly something that seemed tired is reborn and reinvigorated. … Keep reading


… and “How a Doll Can Help Teach Networking to the Next Generation of Trademark Lawyers”

 

shutterstock_112218026Dateline: May 2, 2015, San Diego, CA. The International Trademark Association (INTA) has just launched its annual ginormous conference here in “America’s Finest City.” My colleagues back at the office feign jealousy that we are in San Diego on a ‘junket.’ But the truth is, this five day mega-networking meeting presents tremendous challenges.

The opportunity beckons: Come and network with 10,000 of your colleagues (some of whom are your competitors!). Highlight your talents and skills! Be erudite, witty, knowledgeable, magnetic and fun, all while running (really, literally, running) from venue to venue meeting as many people as you can, current and potential clients and colleagues for about 18 hours a day for 5 days straight…

shutterstock_81091828It’s grueling. It requires a plan, a steely yet warm exterior, and boundless energy. Without a plan, it can feel like you are back on the playground egging to get picked for someone’s team and wondering what you need to do to get in the game.

While 10,000 potential targets is obviously a daunting number, INTA tries to reduce the intimidation by helping young practitioners learn … Keep reading


shutterstock_268287902Anyone who knows me at all knows that I suffer from a terrible affliction called “early adopter syndrome.” I had a cell phone when it really was more of a brick with a speaker and the first smartphone, I can tell you, was not terribly smart at all. There was a lot of staring at the screen waiting for it to bring up a website or a low res photo… As a result of my affliction, there is a veritable cemetery of old devices at my house, all acquired soon after launch.

So now I’ve been hit again – this time with Apple’s… iWatch, er… the Apple Watch. What is that thing called? Officially it’s the “Apple Watch.” A simple name. All business, elegant design, understated but direct. The name fits the device. Just a watch – but it’s not just a watch right? It’s the Apple watch. It’s about as much of a watch as a Tesla vehicle is just a car. Why is a company that has invested so much in the “i” prefix to connote that its devices are “new,” “more,” and “unique” suddenly reverted to referring to its super integrated wrist candy as a mere … Keep reading


shutterstock_244812262 (2)Trademark owners are in the midst of another ‘think’ about the best way to protect and preserve their reputations online.  Specifically, beginning on March 30, 2015 the Sunrise Period opened for brand owners to fork over $2499 for domain names that end in .sucks. This $2499 payment is necessary annually to keep yourbrand.sucks from the clutches of an unhappy customer who might use it to make a career out of publishing any material they wish (fair, unfair or otherwise) about your company, or if you are celebrity – about your performance or personal  life.  To add insult to this expensive injury, after the end of the Sunrise Period, pretty much anyone (other than the brand owner) can pick up the same domains for $9.99 making the barrier to entry for complainants rather low.

As reported by The World Trademark Review and others, the CEO of .sucks registrar Vox Populi, John Berard, claims that intent of the apparently inapt pricing scheme is to encourage brand owners to engage with consumers.  By making the price high, there will be less warehousing of domains and some brand domains will find their way into the hands of people who will … Keep reading


I can’t define disparagement, but I know it when I see it…

On Wednesday, June 18, 2014 the Trademark Trial and Appeal Board, the judicial body that provides review to all Federal trademark filings and disputes relating to such filings, released its second decision to CANCEL the trademark registrations owned by Pro-Football, Inc. and used by the National Football League’s Washington Redskins football team.  The decision is interesting for many reasons, legal, political, and socio-cultural.  But to me the most bloggable angle is how the media has exploded about the decision in the last couple of days, often misreporting the facts (and the law) and suggesting odd conclusions that purportedly flow from the decision.

CNN proclaimed: “If you want to start selling T-shirts with the Washington Redskins’ logo without permission, you may be in luck.”  This unsubstantiated assertion was repeated in other media outlets including Ad Age, which suggested that losing the registrations meant everyone could sell branded items without “fear of reprisal.”

First.  False.  If the decision of the Office stands, the Redskins team, and Pro-Football will still be able to sell their wares and stop others from doing so.  Thousands of unregistered trademark … Keep reading


The Noise About Privacy: Is Big Brother Watching, Or Is He Just the Most Compulsive Hoarder of ‘Random’ on the Planet?

 

On May 19, CNNMoney’s Jose Pagliery published a provocative piece: “What you really accept to when you click ‘accept’“–an exposé on the privacy policies of 18 of the most popular websites and mobile apps.  The article shines the klieg lights on one of the dirty little secrets of consumer internet usage– that online privacy policies are ephemeral, dense, rarely read, one-sided and, sometimes, over-reaching.  Pagliery infers from these conditions that most companies care little for a user’s privacy and want nothing more than to collect the maximum information and use it in any way that increases the bottom line.

At the risk of sounding defensive, I’d say that conclusion is largely unsupported and pretty far from accurate for most web-based companies.  In fact, the density and vagueness of privacy policies often is caused by a variety of competing pressures faced by online companies.  Varied international laws and regulatory schemes applicable in different jurisdictions to different kinds of data create part of the problem. There is no single or baseline set of standards for … Keep reading


You Can Trademark That?  They Can Own What? Who Knew?

There are many reasons we have IP laws – but primary among them is to encourage creative types like artists and inventors to profit from their efforts by way of royalties or exclusive rights.  To encourage those efforts, the intellectual property laws give authors and creators a relative monopoly over something they’ve created – a trademark, an invention, a script, a computer program, etc.  It’s like society is saying “you made it, so you can own it – at least for a while…”

But a natural tension immediately presents itself when we grant these exclusive rights.  Our culture wants to embrace, use and assimilate all that is cutting edge and new without having to ask for permission.  We take – no, we borrow Pharrell Williams’  “Happy” riffs and make them background music to our YouTube® videos of our cats and our dogs.  We expropriate “just a” screen capture from the Godzilla movie and create e-cards or embed them on our Facebook® pages.  Our post-90s, crowd sourced, media-centered sensibility has created this “if it’s out there it must be free” (or “it wants to be free”) ethos … Keep reading


Last week I blogged about a common deceptive technique used by some publishers around the world that send apparently official invoices to trademark applicants in the hopes that people will reflexively pay outrageous sums for a listing of their brand in a catalog few will read.I wanted to follow up on that post and summarize another common scam that befalls trademark owners and applicants.  I get an inquiry from a client at least 2-3 times per month:

“Is This Domain Name Email Legitimate?”

The ruse works likes this: Trademark owner applies for a trademark in the U.S. or with another office in another country.  Information about the mark and the owner is publicly available to scammers through simple searches.  The scammer sends an email to the trademark owner purporting to warn the mark owner of the ill behavior of a potential domain name squatter.  Below is an actual email received recently by a client.  I have changed the names in the email to avoid any embarrassment of the recipient, but I otherwise have left the text, including the grammatical errors of the original, intact.

Dear CEO/Principal,

We are the department of [Domain Name] Service in China. Here I have

… Keep reading


Scam AlertThere are few things more annoying than the feeling that you have been duped into paying for something that you neither need nor want.   IP owners, and particularly trademark owners, are common targets for scammers seeking to obtain fees for bogus, unnecessary or questionable services offered at outrageous prices.  No doubt these scams work because people are busy – but the notices also are steeped in what looks like official language, may appear to come from official governmental auspices, and seem to suggest that the fees cover “renewal,” “registration” or “publication.”  These activities are all items that IP owners are accustomed to paying for, so when they see notices requesting payment (rather than merely soliciting interest in a service) they tend to pay the invoice rather than ask questions about the content or source of the purported services.

Here’s how it works.  A trademark owner files to protect its mark in the U.S. or abroad.  They might use a law firm for that service or file directly.  Regardless, information about the applicant and the mark is publicly available through the online database maintained by the U.S. Trademark Office (or other international offices).  The purported scammer service provider picks up

… Keep reading