Hello:
I hope everyone had a wonderful Thanksgiving Holiday. This time of year is always busy for me because clients want to wrap up legal issues before the end of the year and I have a family that demands my attention with all the Holiday hoopla!
Currently, I am working on a very interesting story about what does copyright case law say about proper linking and quoting in regards to copyright infringement. What is Fair Use and what is not? As copyright owners, we do not want individuals quoting our work without our permission. However, service providers and news organization want to be able to provide 'snippets' or a portion of copyright protected material and links without always having to go to the copyright owner for permission. So I will explore in my article what does the law say about this delicate balance between copyright infringement and Fair use? Stay tuned, it will be a very informative and interesting piece.
Also, next week I am speaking to a momprenuer networking group about Intellectual Property 101! Yes, these ladies have some pretty genius products and business ideas and they want to know how to protect them. So I will explain the difference between patents, trademarks, trade secrets and copyrights; how to properly protect these types of intellectual property and the benefits of licensing and royalty income. I love educating individuals on Intellectual Property and am I am looking forward to it.
Thanks for reading!
Wednesday, December 1, 2010
Tuesday, November 2, 2010
Twitter's New Trademark Guidelines: Why Trademark Guidelines are Important
Hello Everyone:
Recently, Twitter revealed its new trademark guidelines regarding the proper use of the Twitter name and trademarks.
Some key terms of the new trademark guidelines are as follows:
1. When users promote their own Twitter accounts, they need to use the proper Twitter logo and ensure the letter "T" in Twitter is capitalized.
2. When mentioning Twitter on TV or any other public forum, users should refer to the company as Twitter and messages as Tweets. Also unless expressly given permission to do so, do not imply an endorsement or relationship with Twitter.
3. Users must not ever manipulate or change the Twitter logo. Furthermore, ensure the Twitter logo is not next to your logo to imply an association.
4. When developing Twitter applications, developers are now forbidden to use Twitter or Tweet in the name of the app.
5. Developers are also forbidden from copying the look and feel of the Twitter website in developing applications and websites.
Twitter's new trademark guidelines were necessary in order for Twitter to protect and manage its brand. Remember a trademark owner can lose trademark rights if the trademark is not controlled and managed. Specifically, a trademark owners has to:
1. Ensure the mark does not become generic (a common name for the goods or services and ceases to function as a source for the goods);
2. Ensure trademark infringers are prosecuted effectively and swiftly. A trademark owner that allows anyone to use their trademark without prosecuting infringers, has a weak trademark. A weak trademark is one that is no longer considered unique to the trademark owner's product or service.
Trademark Guidelines Assist in Brand Management
Trademark guidelines are first steps in alerting the public to the proper use of a company's trademarks and ultimately brand. They ensure the trademark is used properly; forbids impermissable uses or as Twitter states "the lawyers get involved"; and clearly gives direction as to when express permission or a license is needed for use.
Trademark Guidelines are especially important if your brand is entering a partnership with another brand or if your brand is used by multitudes of people.
Does your brand have trademark guidelines in place?
Recently, Twitter revealed its new trademark guidelines regarding the proper use of the Twitter name and trademarks.
Some key terms of the new trademark guidelines are as follows:
1. When users promote their own Twitter accounts, they need to use the proper Twitter logo and ensure the letter "T" in Twitter is capitalized.
2. When mentioning Twitter on TV or any other public forum, users should refer to the company as Twitter and messages as Tweets. Also unless expressly given permission to do so, do not imply an endorsement or relationship with Twitter.
3. Users must not ever manipulate or change the Twitter logo. Furthermore, ensure the Twitter logo is not next to your logo to imply an association.
4. When developing Twitter applications, developers are now forbidden to use Twitter or Tweet in the name of the app.
5. Developers are also forbidden from copying the look and feel of the Twitter website in developing applications and websites.
Twitter's new trademark guidelines were necessary in order for Twitter to protect and manage its brand. Remember a trademark owner can lose trademark rights if the trademark is not controlled and managed. Specifically, a trademark owners has to:
1. Ensure the mark does not become generic (a common name for the goods or services and ceases to function as a source for the goods);
2. Ensure trademark infringers are prosecuted effectively and swiftly. A trademark owner that allows anyone to use their trademark without prosecuting infringers, has a weak trademark. A weak trademark is one that is no longer considered unique to the trademark owner's product or service.
Trademark Guidelines Assist in Brand Management
Trademark guidelines are first steps in alerting the public to the proper use of a company's trademarks and ultimately brand. They ensure the trademark is used properly; forbids impermissable uses or as Twitter states "the lawyers get involved"; and clearly gives direction as to when express permission or a license is needed for use.
Trademark Guidelines are especially important if your brand is entering a partnership with another brand or if your brand is used by multitudes of people.
Does your brand have trademark guidelines in place?
Wednesday, October 27, 2010
Facebook vs. Faceporn: Trademark Infringement or Copyright Infringement
Hello!
Recently, Facebook filed a lawsuit against the pornographic social networking site, Faceporn, alleging trademark infringement of its trademark, Facebook. Specifically, Facebook alleges the use of the mark, Faceporn, is "confusingly similar" to the mark Facebook and the use of the mark, Faceporn, is causing dilution of the Facebook brand.
Dilution
Dilution is a trademark infringement legal claim that can be asserted by famous brands. I have previously discussed Dilution here. Dilution occurs when a lesser known brand uses the mark of a famous trademark owner, and the use of the more famous mark by the lesser known brand, dilutes the distinctiveness of the famous trademark. Dilution can be asserted by famous trademarks even if the products or services are totally unrelated.
Although, Facebook is claiming the use of the Faceporn mark is diluting its brand via tarnishing its reputation, with the revision of the Dilution statute, the only thing Facebook has to prove is the use of the Faceporn mark will cause a likelihood of confusion between the two trademark among the relevant consuming public.
Likelihood of Confusion
The courts determine whether likelihood of confusion exists by balancing 8 factors. Those factors are: if the marks are similar in sight, sound, and meaning; the similarity of the goods and services sold; the similarity of the distribution channels and customers for the goods or services at issue; the sophistication of purchasers and the expense of the product or service at issue; the similarity of means and methods of advertising and promoting the goods or services at issue; whether there is evidence of actual confusion of consumers or other relevant groups; the strength of the mark; and was the potentially infringing trademark adopted with good faith or with intent to imitate the established trademark?
I think Facebook would have a hard time proving the trademarks were similar in sight, sound, and meaning. Facebook and Faceporn clearly do not have the same meaning. Furthermore, they really do not sound the same...book and porn. The only thing Facebook could possible claim is similar is the word "face" in both trademarks. But I do not believe that is similar enough. Next, Faceporn could certainly refute that Facebook and Faceporn have the same customers and/or distribution channels. Individuals looking for porn are not going to go to Facebook to find it. At least I don't think so. In addition, Facebook users seems to be very sophisticated consumers and would have enough intellect not to go to Facebook looking for or expecting to see the contents of Faceporn. Also, I am sure Facebook and Faceporn are not promoting their services through the same advertising and/or marketing channels. Lastly, I do not believe Facebook can prove actual confusion between both sites among their and Faceporn's consumers. Like I said earlier, people looking for porn are not going to visit Facebook attempting to find it and vice-versa.
However, I do believe the strength of Facebook's lawsuit against Faceporn lies in the last two factors. Clearly, Facebook, has a strong trademark. It is a unique term created by Facebook and was created to brand the number one social networking site. Also, Facebook could easily prove Faceporn created the trademark and site with the intent to copy the famous Facebook trademark. Specifically, Faceporn's site did have the same look and feel as Facebook. The logo was in the same type and font, the color scheme was the same and the layout was identical to Facebook's. I believe Facebook would have a stronger copyright infringement claim than a trademark claim. Clearly, Faceporn copied the layout and style of Facebook's site.
You can view a screen shot of the Faceporn site here. It has since been changed. But what do you think?
Recently, Facebook filed a lawsuit against the pornographic social networking site, Faceporn, alleging trademark infringement of its trademark, Facebook. Specifically, Facebook alleges the use of the mark, Faceporn, is "confusingly similar" to the mark Facebook and the use of the mark, Faceporn, is causing dilution of the Facebook brand.
Dilution
Dilution is a trademark infringement legal claim that can be asserted by famous brands. I have previously discussed Dilution here. Dilution occurs when a lesser known brand uses the mark of a famous trademark owner, and the use of the more famous mark by the lesser known brand, dilutes the distinctiveness of the famous trademark. Dilution can be asserted by famous trademarks even if the products or services are totally unrelated.
Although, Facebook is claiming the use of the Faceporn mark is diluting its brand via tarnishing its reputation, with the revision of the Dilution statute, the only thing Facebook has to prove is the use of the Faceporn mark will cause a likelihood of confusion between the two trademark among the relevant consuming public.
Likelihood of Confusion
The courts determine whether likelihood of confusion exists by balancing 8 factors. Those factors are: if the marks are similar in sight, sound, and meaning; the similarity of the goods and services sold; the similarity of the distribution channels and customers for the goods or services at issue; the sophistication of purchasers and the expense of the product or service at issue; the similarity of means and methods of advertising and promoting the goods or services at issue; whether there is evidence of actual confusion of consumers or other relevant groups; the strength of the mark; and was the potentially infringing trademark adopted with good faith or with intent to imitate the established trademark?
I think Facebook would have a hard time proving the trademarks were similar in sight, sound, and meaning. Facebook and Faceporn clearly do not have the same meaning. Furthermore, they really do not sound the same...book and porn. The only thing Facebook could possible claim is similar is the word "face" in both trademarks. But I do not believe that is similar enough. Next, Faceporn could certainly refute that Facebook and Faceporn have the same customers and/or distribution channels. Individuals looking for porn are not going to go to Facebook to find it. At least I don't think so. In addition, Facebook users seems to be very sophisticated consumers and would have enough intellect not to go to Facebook looking for or expecting to see the contents of Faceporn. Also, I am sure Facebook and Faceporn are not promoting their services through the same advertising and/or marketing channels. Lastly, I do not believe Facebook can prove actual confusion between both sites among their and Faceporn's consumers. Like I said earlier, people looking for porn are not going to visit Facebook attempting to find it and vice-versa.
However, I do believe the strength of Facebook's lawsuit against Faceporn lies in the last two factors. Clearly, Facebook, has a strong trademark. It is a unique term created by Facebook and was created to brand the number one social networking site. Also, Facebook could easily prove Faceporn created the trademark and site with the intent to copy the famous Facebook trademark. Specifically, Faceporn's site did have the same look and feel as Facebook. The logo was in the same type and font, the color scheme was the same and the layout was identical to Facebook's. I believe Facebook would have a stronger copyright infringement claim than a trademark claim. Clearly, Faceporn copied the layout and style of Facebook's site.
You can view a screen shot of the Faceporn site here. It has since been changed. But what do you think?
Monday, October 18, 2010
Speaking About FTC Rules and Ethical Blogging At Lavish!
Hello!
I have been neglecting this blog because I am so busy these days. Which is a good thing and I am not complaining.
So here is an update on my activities for the last month. I attended another social media conference, Blogalicious. It was a good time and of course I learned a few things. Most importantly, individuals are using social media in such creative and business savvy ways. It is amazing. There is a lot of intellectual property being created through social media and individuals have to become educated about protecting their intellectual property.
I was invited to speak at the Lavish Experience Conference. It is a conference conceived and produced by Shameeka Ayers of The Broke Socialite and focuses on the Lifestyle blogger. Lifestyle blogging is Big Big Business and mainstream media and corporations are taking note! I will discuss how to navigate offers of paid income to blog or advertise on beauty and fashion blogs while also adhering to the revised Federal Trade Commissions Regulations regarding disclosure of paid advertising and product endorsement on social media platforms. Yes disclosure is required on all blogs, Facebook updates, Twitter feeds, etc.
The conference will take place here in Atlanta, GA at Mansion Hotel from December 10-12.
If you can not attend, please follow my tweets on that day. My tweets will include all the good information you need!
I have been neglecting this blog because I am so busy these days. Which is a good thing and I am not complaining.
So here is an update on my activities for the last month. I attended another social media conference, Blogalicious. It was a good time and of course I learned a few things. Most importantly, individuals are using social media in such creative and business savvy ways. It is amazing. There is a lot of intellectual property being created through social media and individuals have to become educated about protecting their intellectual property.
I was invited to speak at the Lavish Experience Conference. It is a conference conceived and produced by Shameeka Ayers of The Broke Socialite and focuses on the Lifestyle blogger. Lifestyle blogging is Big Big Business and mainstream media and corporations are taking note! I will discuss how to navigate offers of paid income to blog or advertise on beauty and fashion blogs while also adhering to the revised Federal Trade Commissions Regulations regarding disclosure of paid advertising and product endorsement on social media platforms. Yes disclosure is required on all blogs, Facebook updates, Twitter feeds, etc.
The conference will take place here in Atlanta, GA at Mansion Hotel from December 10-12.
If you can not attend, please follow my tweets on that day. My tweets will include all the good information you need!
Thursday, September 30, 2010
Senate Bill Cracks Down On Online Infringement
Hello!
Last week, Senator Leahy along with a host of other co-sponsors, introduced SB 3804: Combating Online Infringement and Counterfeits Act. This Bill gives the Attorney General authority to seize domains of infringing websites if it is proven the sites are totally dedicated to Intellectual Property infringing activity. The Bill defines infringing activity as: websites that provide access or offer for sale unauthorized copies of copyright protected material or any website that sells or distributes good or services bearing a counterfeit mark in violation of a trademark's owner exclusive right to use the mark. Specifically this Bill is targeted to websites that sell counterfeit goods for luxury items such as designer purses, watches, jewelry and shoes.
This Bill also gives Internet Service Providers (hosting companies, domain registrar, etc.) the right to shut down the infringing site and provides immunity to the ISPs for doing so. The Bill also allows the Attorney General to prevent a website that is non-domestic from conducting business in the U.S. and prevent the importation of infringing goods and services. The Attorney General will also keep a list of infringing websites or domains available to the public via online.
Results?
As evidenced, Intellectual Property Infringement is rampant on the Internet. Intellectual Property owners spend considerable amounts of money defending their Intellectual Property through DMCA take down requests, cease and desist demand letters, TROs and IP Internet Monitoring Services. However, sometimes these efforts may stop infringers for a moment, but if they are highly organized, they re-group and infringe again. This is particularly relevant when it comes to counterfeit goods. This bill allows the Attorney General to combat online infringement at the source.
The Bill has been referred to Committe and should be up for a vote soon.
Do you think this is a step in the right direction in stopping online Intellectual Property Infringement?
Last week, Senator Leahy along with a host of other co-sponsors, introduced SB 3804: Combating Online Infringement and Counterfeits Act. This Bill gives the Attorney General authority to seize domains of infringing websites if it is proven the sites are totally dedicated to Intellectual Property infringing activity. The Bill defines infringing activity as: websites that provide access or offer for sale unauthorized copies of copyright protected material or any website that sells or distributes good or services bearing a counterfeit mark in violation of a trademark's owner exclusive right to use the mark. Specifically this Bill is targeted to websites that sell counterfeit goods for luxury items such as designer purses, watches, jewelry and shoes.
This Bill also gives Internet Service Providers (hosting companies, domain registrar, etc.) the right to shut down the infringing site and provides immunity to the ISPs for doing so. The Bill also allows the Attorney General to prevent a website that is non-domestic from conducting business in the U.S. and prevent the importation of infringing goods and services. The Attorney General will also keep a list of infringing websites or domains available to the public via online.
Results?
As evidenced, Intellectual Property Infringement is rampant on the Internet. Intellectual Property owners spend considerable amounts of money defending their Intellectual Property through DMCA take down requests, cease and desist demand letters, TROs and IP Internet Monitoring Services. However, sometimes these efforts may stop infringers for a moment, but if they are highly organized, they re-group and infringe again. This is particularly relevant when it comes to counterfeit goods. This bill allows the Attorney General to combat online infringement at the source.
The Bill has been referred to Committe and should be up for a vote soon.
Do you think this is a step in the right direction in stopping online Intellectual Property Infringement?
Sunday, September 19, 2010
Are Recording Contracts Works Made for Hire?
Hello:
In light of the recent decision in the Fifth-Six Hope Road Music Ltd (Estate of Bob Marley) vs. UMG Recordings, many Artist are worried that all of their sounds recordings are going to be classified as "works made for hire." Basically, the judge ruled in the Bob Marley case that all of his recordings with Island Records from 1973-1977 were "works made for hire" and Universal Music Group is the rightful owner of the copyrights to five recordings Marley recorded. Specifically, the judge determined that despite Marley's artistic control over the recordings, both parties had a contractual agreement that clearly indicated the Marley sound recordings were "works made for hire."
A work made for hire is defined as a work created by an employee within the scope of the employee's employment. A work made for hire can also be created by a contractual agreement between two parties. Because most recording contracts are classified as independent contractor relationships and not employer-employee relationships, recording contracts are not usually deemed as works made for hires. However, record labels are now adding work made for hire clauses into recording contracts and artists and artists rights organizations are up in arms.
Work made for hire clauses in recording contracts have serious legal implications for artists. If the sound recording is classified as a work made for hire, the record label can retain the copyright to the work and the Masters in the recording. As a general rule, the Artists retains the right to have the Masters returned after a ten year period. This gives the Artist control over licensing and other revenue that can be obtained from the Masters. In addition, there is also "termination of copyrights" to consider. Termination of copyrights assists artists who may have signed away their copyrights. After 56 years, the artist can recapture the copyright for the last 39 years of the 56 years. For example, a contract signing away copyrights entered into in 1950 can be terminated in 2006 and the copyright can revert (artist has to give proper notice of termination) back to the artist or original author of the work. However, termination of copyrights is not applicable if the work is specifically a "work made for hire."
It is evident that both record labels and artists have a lot of stake when it comes to work made for hire clauses. Artists should hire good legal representation to ensure their works are not classified as works made for hire. Especially if the artist has created the work indepedently and not as an employee.
I welcome your thoughts.
In light of the recent decision in the Fifth-Six Hope Road Music Ltd (Estate of Bob Marley) vs. UMG Recordings, many Artist are worried that all of their sounds recordings are going to be classified as "works made for hire." Basically, the judge ruled in the Bob Marley case that all of his recordings with Island Records from 1973-1977 were "works made for hire" and Universal Music Group is the rightful owner of the copyrights to five recordings Marley recorded. Specifically, the judge determined that despite Marley's artistic control over the recordings, both parties had a contractual agreement that clearly indicated the Marley sound recordings were "works made for hire."
A work made for hire is defined as a work created by an employee within the scope of the employee's employment. A work made for hire can also be created by a contractual agreement between two parties. Because most recording contracts are classified as independent contractor relationships and not employer-employee relationships, recording contracts are not usually deemed as works made for hires. However, record labels are now adding work made for hire clauses into recording contracts and artists and artists rights organizations are up in arms.
Work made for hire clauses in recording contracts have serious legal implications for artists. If the sound recording is classified as a work made for hire, the record label can retain the copyright to the work and the Masters in the recording. As a general rule, the Artists retains the right to have the Masters returned after a ten year period. This gives the Artist control over licensing and other revenue that can be obtained from the Masters. In addition, there is also "termination of copyrights" to consider. Termination of copyrights assists artists who may have signed away their copyrights. After 56 years, the artist can recapture the copyright for the last 39 years of the 56 years. For example, a contract signing away copyrights entered into in 1950 can be terminated in 2006 and the copyright can revert (artist has to give proper notice of termination) back to the artist or original author of the work. However, termination of copyrights is not applicable if the work is specifically a "work made for hire."
It is evident that both record labels and artists have a lot of stake when it comes to work made for hire clauses. Artists should hire good legal representation to ensure their works are not classified as works made for hire. Especially if the artist has created the work indepedently and not as an employee.
I welcome your thoughts.
Monday, September 13, 2010
Twitter TOS: Does It Apply To Celebrities?
Hello Everyone!
I hope all is well.
A couple of weeks ago, I wrote a post on Black Web 2.0 about Twitter's Terms of Service Agreement and whether it applied to Celebrity Twitters. The article spread like wildfire on the web and I was kind of surprised. Read the full article below and tell me what do you think.
Over the past week Hip-Hop artist, 50 Cent, took control of his Twitter account and went on a tweet rampage. He threatened to kill people, posted pornographic images, issued defamatory statements against other artists, and also made racist statements. His Twitpic account was suspended due to the pornographic images. But his Twitter account is still up and running.
If that weren’t enough, last Sunday, Denver Nuggets forward, Carmelo Anthony and his wife Lala got into a Twitter fight with exhibitionist Kat Stacks. Allegedly, Carmelo offered $5000 cash to anyone who would physically harm Kat Stacks. He also allegedly threatened her with physical harm. As a result Stacks has filed charges against Anthony.
Is Twitter becoming the wild, wild west of social networks? Twitter does have “Twitter Rules” in their Terms of Service Agreement that outlines Rules of Content for posted content. Specifically Twitter prohibits:
1. Impersonation
2. Trademark Infringement
3. Violation of Privacy
4. Violence and Threats
5. Copyright Infringement
6. Promotion of Illegal Activities
7. Spam Abuse
But considering 50 Cent’s Twitter account is still up and running and other Tweeters are also guilty of violating Twitter’s Rules of Conduct, does Twitter actually enforce these rules? Twitter states “we do not actively monitor user’s content and will not censor user content, except in the above limited circumstances.” Twitter basically covers themselves with this statement and considering the millions of users on Twitters, it makes sense. But is Twitter motivated to take action against violaters, especially if they are celebrities and have millions of followers like 50 Cent? The rapper even bragged that @ev (Evan Williams), co-founder of Twitter, gave him a call and said he was the best thing that happened to Twitter. This may or may not be true, but it is an interesting statement.
Carmelo Antony’s Twitter account was deleted but we don’t know if Twitter deleted his account or the NBA forced him to delete his account. His statements to Kat Stacks are a federal crime and if proven he did in fact make the statements from his computer or mobile device, he could potentially face jail time and suspension from the NBA. Carmelo and his wife are now claiming his Twitter account was hacked and he did not send the criminal tweets.
Whether Twitter enforces its Rules of Conduct are debatable. However, when Tweets are written and sent, they are forever in cyberspace regardless of whether the user deletes the tweet or their Twitter Account. Tweets are public records and can be used as evidence in any civil or criminal litigation. I previously wrote a post on the Do’s and Dont’s of Twitter. Many of those Do’s and Dont’s included several of the above Twitter Rules. But regardless if Twitter kicks violators off Twitter or not, engaging in “Dont’s” can get you sued, jail time, and fines.
So be careful what you tweet. When in doubt, just don’t.
Category: Featured, Social Networking | Tags: 50 Cent, black web 2.0, Civil Litigations, Criminal conduct, Defamation, Federal Crimes, IPLAW101, Kat Stacks, La La and Carmelo Anthony, NBA, Phillips Givenslaw, Pornography, terms of service agreements, Threats, twitter, Twitter Rules of Conduct, Violence
I hope all is well.
A couple of weeks ago, I wrote a post on Black Web 2.0 about Twitter's Terms of Service Agreement and whether it applied to Celebrity Twitters. The article spread like wildfire on the web and I was kind of surprised. Read the full article below and tell me what do you think.
Over the past week Hip-Hop artist, 50 Cent, took control of his Twitter account and went on a tweet rampage. He threatened to kill people, posted pornographic images, issued defamatory statements against other artists, and also made racist statements. His Twitpic account was suspended due to the pornographic images. But his Twitter account is still up and running.
If that weren’t enough, last Sunday, Denver Nuggets forward, Carmelo Anthony and his wife Lala got into a Twitter fight with exhibitionist Kat Stacks. Allegedly, Carmelo offered $5000 cash to anyone who would physically harm Kat Stacks. He also allegedly threatened her with physical harm. As a result Stacks has filed charges against Anthony.
Is Twitter becoming the wild, wild west of social networks? Twitter does have “Twitter Rules” in their Terms of Service Agreement that outlines Rules of Content for posted content. Specifically Twitter prohibits:
1. Impersonation
2. Trademark Infringement
3. Violation of Privacy
4. Violence and Threats
5. Copyright Infringement
6. Promotion of Illegal Activities
7. Spam Abuse
But considering 50 Cent’s Twitter account is still up and running and other Tweeters are also guilty of violating Twitter’s Rules of Conduct, does Twitter actually enforce these rules? Twitter states “we do not actively monitor user’s content and will not censor user content, except in the above limited circumstances.” Twitter basically covers themselves with this statement and considering the millions of users on Twitters, it makes sense. But is Twitter motivated to take action against violaters, especially if they are celebrities and have millions of followers like 50 Cent? The rapper even bragged that @ev (Evan Williams), co-founder of Twitter, gave him a call and said he was the best thing that happened to Twitter. This may or may not be true, but it is an interesting statement.
Carmelo Antony’s Twitter account was deleted but we don’t know if Twitter deleted his account or the NBA forced him to delete his account. His statements to Kat Stacks are a federal crime and if proven he did in fact make the statements from his computer or mobile device, he could potentially face jail time and suspension from the NBA. Carmelo and his wife are now claiming his Twitter account was hacked and he did not send the criminal tweets.
Whether Twitter enforces its Rules of Conduct are debatable. However, when Tweets are written and sent, they are forever in cyberspace regardless of whether the user deletes the tweet or their Twitter Account. Tweets are public records and can be used as evidence in any civil or criminal litigation. I previously wrote a post on the Do’s and Dont’s of Twitter. Many of those Do’s and Dont’s included several of the above Twitter Rules. But regardless if Twitter kicks violators off Twitter or not, engaging in “Dont’s” can get you sued, jail time, and fines.
So be careful what you tweet. When in doubt, just don’t.
Category: Featured, Social Networking | Tags: 50 Cent, black web 2.0, Civil Litigations, Criminal conduct, Defamation, Federal Crimes, IPLAW101, Kat Stacks, La La and Carmelo Anthony, NBA, Phillips Givenslaw, Pornography, terms of service agreements, Threats, twitter, Twitter Rules of Conduct, Violence
Monday, August 23, 2010
Madonna Sued for Trademark Infringement for Material Girl Collection
Hello Everyone!
Trademark infringement lawsuits are plentiful. Pop Icon, Madonna, is currently being sued by apparel manufacturer, LA Triumph, over the use of the trademark "Material Girl", the name of Madonna's new teen clothing line. L.A. Triumph claims it has used the "Material Girl" trademark in commerce since 1997. The company further stated, it has used the trademark in the same classification as Madonna, which is junior clothing. Apparently, both lines offer similarly styled clothing which is reflective of the 80s era.
Who Has Priority Trademark Rights
I did a search for Material Girl on the USPTO Trademark database website and Madonna's company, Material Girl Brand, LLC, filed for the trademark "Material Girl" in the clothing and accessory classifications based on intent to use. The application was published for Opposition (meaning another company can assert priority trademark rights and have the application denied) on July 20, 2010. Then there is L.A. Triumph, which does not have a registered trademark or pending trademark application with the USPTO, claiming it has been using the mark in commerce (offering goods for sale to the public) since 1997.
As I have previously discussed on this blog, an unregistered trademark, has priority rights, if the mark is used first in the region the mark originated. If it is proven L.A. Triumph did actually have a viable junior clothing line using the trademark "Material Girl" since 1997, then L.A. Triumph can assert trademark infringement in its region: the West Coast. Madonna could possibly still use the mark in other parts of the country, but of course that would be near impossible as the clothing is offered nationwide in Macy's stores.
Did Madonna's team do a thorough trademark search?
The answer to that question is not known. Either her legal team did not perform a good comprehensive trademark search and did not discover L.A. Triumph's prior use of the "Material Girl" mark. Or the search was valid and because of L.A. Triumph's non-use of the mark, could not be found. We just do not know the answer to that question yet.
Resolution
Madonna could fight L.A. Triumph regarding the use of the "Material Girl" trademark or she could settle. I predict she will settle because millions of dollars have already been spent manufacturing, marketing the clothes, and distributing the line. So a quick resolution is in the best interest of Material Girl Brand, LLC. A settlement could include either the purchase of the trademark rights outright or an agreement to some type of licensing fee.
I am looking forward to the outcome of this case.
Trademark infringement lawsuits are plentiful. Pop Icon, Madonna, is currently being sued by apparel manufacturer, LA Triumph, over the use of the trademark "Material Girl", the name of Madonna's new teen clothing line. L.A. Triumph claims it has used the "Material Girl" trademark in commerce since 1997. The company further stated, it has used the trademark in the same classification as Madonna, which is junior clothing. Apparently, both lines offer similarly styled clothing which is reflective of the 80s era.
Who Has Priority Trademark Rights
I did a search for Material Girl on the USPTO Trademark database website and Madonna's company, Material Girl Brand, LLC, filed for the trademark "Material Girl" in the clothing and accessory classifications based on intent to use. The application was published for Opposition (meaning another company can assert priority trademark rights and have the application denied) on July 20, 2010. Then there is L.A. Triumph, which does not have a registered trademark or pending trademark application with the USPTO, claiming it has been using the mark in commerce (offering goods for sale to the public) since 1997.
As I have previously discussed on this blog, an unregistered trademark, has priority rights, if the mark is used first in the region the mark originated. If it is proven L.A. Triumph did actually have a viable junior clothing line using the trademark "Material Girl" since 1997, then L.A. Triumph can assert trademark infringement in its region: the West Coast. Madonna could possibly still use the mark in other parts of the country, but of course that would be near impossible as the clothing is offered nationwide in Macy's stores.
Did Madonna's team do a thorough trademark search?
The answer to that question is not known. Either her legal team did not perform a good comprehensive trademark search and did not discover L.A. Triumph's prior use of the "Material Girl" mark. Or the search was valid and because of L.A. Triumph's non-use of the mark, could not be found. We just do not know the answer to that question yet.
Resolution
Madonna could fight L.A. Triumph regarding the use of the "Material Girl" trademark or she could settle. I predict she will settle because millions of dollars have already been spent manufacturing, marketing the clothes, and distributing the line. So a quick resolution is in the best interest of Material Girl Brand, LLC. A settlement could include either the purchase of the trademark rights outright or an agreement to some type of licensing fee.
I am looking forward to the outcome of this case.
Monday, August 16, 2010
Pillsbury Doughboy vs. My Dough Girl: Is it trademark infrigement?
Hello Everyone:
Have you heard about Pillsbury Doughboy vs. My Dough Girl. Pillsbury sent a cease and desist letter to Tami Cromar owner of My Dough Girl cookie bakery asserting her "My Dough Girl" trademark was too similar to the trademarked "Doughboy." Apparently, Ms. Cromar applied for registration of the mark with the USPTO and Pillsbury immediately sent her a cease and desist. As I have discussed previously, trademark infringement occurs if 1) a trademark owner can assert priority to use the mark (1st to use the mark in commerce) and 2) there is a likliehood of confusion between the priority mark and the subsequent mark. Pillsbury stated "the application was for categories in which we operate, including cookies and refrigerated dough products nationally. We needed to protect our trademarks — and we did." Ms. Cromar sells fresh baked cookies and refrigerated dough cookies.
Are the marks too similar?
Well that is debatable. There are many factors that are assessed to determined if two marks are likely to cause confusion in the marketplace because they are too similar. One is are the marks similar in sight, sound, and meaning. One could argue that because "Doughboy" and "My Dough Girl" have the same meaning as both companies are in the cookie and refrigerated cookie dough business. Also, one could argue "Dough Girl" is too similar in sight and sound to "Doughboy." However, I could also argue the three words "My Dough Girl" together are unique enough not to infringe "Doughboy" and they are not similar in sight and sound. But I believe because the classifications and products are the same, Pillsbury did not want to take any chances.
Similar Doughboy registered trademarks
Ms.Cromar stated she did not understand why Pilsbury was picking on her as there are several companies with the "Doughboy" trademark. I did review registered "Doughboy" trademarks with the USPTO and either they were established well before Pillsbury's "Doughboy" trademark or the marks are in unrelated categories. Two similar trademarks can co-exist if the product or services are unrelated and are categorized in entirely different classifications. The only instance a company can prevent registration of a similar trademark in an unrelated classification is when the company has a very famous trademark and they can assert Dilution, i.e., the similar trademark is diluting the famous brand.
What is next for My Dough Girl
Ms. Cromar agreed to select another trademark rather than fight Pillsbury. But all is not lost. The considerable amount of publicity she has received from the media coverage will no doubt boost her sales at her physical bakery and her online business. She does have a Facebook Fan Page of supporters who want her to fight Pillsbury. I did visit her website and her cookies are indeed unique and look very tasty. If this controversy had not surfaced, she would just be a locally known bakery in Utah..Now her business is a nationally known and famous bakery. Not a bad trade off.
Have you heard about Pillsbury Doughboy vs. My Dough Girl. Pillsbury sent a cease and desist letter to Tami Cromar owner of My Dough Girl cookie bakery asserting her "My Dough Girl" trademark was too similar to the trademarked "Doughboy." Apparently, Ms. Cromar applied for registration of the mark with the USPTO and Pillsbury immediately sent her a cease and desist. As I have discussed previously, trademark infringement occurs if 1) a trademark owner can assert priority to use the mark (1st to use the mark in commerce) and 2) there is a likliehood of confusion between the priority mark and the subsequent mark. Pillsbury stated "the application was for categories in which we operate, including cookies and refrigerated dough products nationally. We needed to protect our trademarks — and we did." Ms. Cromar sells fresh baked cookies and refrigerated dough cookies.
Are the marks too similar?
Well that is debatable. There are many factors that are assessed to determined if two marks are likely to cause confusion in the marketplace because they are too similar. One is are the marks similar in sight, sound, and meaning. One could argue that because "Doughboy" and "My Dough Girl" have the same meaning as both companies are in the cookie and refrigerated cookie dough business. Also, one could argue "Dough Girl" is too similar in sight and sound to "Doughboy." However, I could also argue the three words "My Dough Girl" together are unique enough not to infringe "Doughboy" and they are not similar in sight and sound. But I believe because the classifications and products are the same, Pillsbury did not want to take any chances.
Similar Doughboy registered trademarks
Ms.Cromar stated she did not understand why Pilsbury was picking on her as there are several companies with the "Doughboy" trademark. I did review registered "Doughboy" trademarks with the USPTO and either they were established well before Pillsbury's "Doughboy" trademark or the marks are in unrelated categories. Two similar trademarks can co-exist if the product or services are unrelated and are categorized in entirely different classifications. The only instance a company can prevent registration of a similar trademark in an unrelated classification is when the company has a very famous trademark and they can assert Dilution, i.e., the similar trademark is diluting the famous brand.
What is next for My Dough Girl
Ms. Cromar agreed to select another trademark rather than fight Pillsbury. But all is not lost. The considerable amount of publicity she has received from the media coverage will no doubt boost her sales at her physical bakery and her online business. She does have a Facebook Fan Page of supporters who want her to fight Pillsbury. I did visit her website and her cookies are indeed unique and look very tasty. If this controversy had not surfaced, she would just be a locally known bakery in Utah..Now her business is a nationally known and famous bakery. Not a bad trade off.
Thursday, August 12, 2010
Blogher 2010: Mastering Intellectual Propery Law on the Internet Session Recap
Hello Everyone:
As some of you know, I co-presented a presentation at Blogher 2010 entitled Mastering Intellectual Property Law on the Internet and other legal issues in cyberspace. My co-presenter was Wendy Seltzer of the blog ChillingEffects.org. She is a Berkman fellow and law school professor. She specializes in copyright, fair use, and other legal issues in cyberspace such as first amendment and privacy issues.
We covered four main topic areas. They were: Protecting your own Intellectual Property, Respecting others Intellectual Property, Privacy, and Defamation on the Internet. We tag teamed all topics and had so many detailed questions we actually ran over our allotted time. Apparently this is a much needed topic for social media enthusiasts.
When discussing protecting intellectual property, we specifically covered how to protect copyrights, trademarks, and trade secrets. We also discussed why owners of these types of intellectual property should protect them. One reason is because owners of intellectual property can lose out on valuable royalty or licensing income if not protected. No one wants to lose money!
Next we discussed how to respect others intellectual property and not infringe their works. We explained when it is permissible to copy without permission in certain Fair Use circumstances. Wendy explained in detail proper linking, the DMCA take down procedure, and creative common licenses.
I then gave a general overview of Privacy issues. I explained the need for every website or blog to have a basic privacy policy which is a disclosure document. A privacy policy protects the owner of the site and the user. Read my article on Privacy policies here.
Lastly, we both touch on Defamation and how to avoid defamation on the Internet. We also discussed the Communications Decency Act which states website owners or internet service providers are not liable for defamatory statements left by visitors.
If you are interested in seeing the notes or hearing the audio from this presentation, please click here.
As some of you know, I co-presented a presentation at Blogher 2010 entitled Mastering Intellectual Property Law on the Internet and other legal issues in cyberspace. My co-presenter was Wendy Seltzer of the blog ChillingEffects.org. She is a Berkman fellow and law school professor. She specializes in copyright, fair use, and other legal issues in cyberspace such as first amendment and privacy issues.
We covered four main topic areas. They were: Protecting your own Intellectual Property, Respecting others Intellectual Property, Privacy, and Defamation on the Internet. We tag teamed all topics and had so many detailed questions we actually ran over our allotted time. Apparently this is a much needed topic for social media enthusiasts.
When discussing protecting intellectual property, we specifically covered how to protect copyrights, trademarks, and trade secrets. We also discussed why owners of these types of intellectual property should protect them. One reason is because owners of intellectual property can lose out on valuable royalty or licensing income if not protected. No one wants to lose money!
Next we discussed how to respect others intellectual property and not infringe their works. We explained when it is permissible to copy without permission in certain Fair Use circumstances. Wendy explained in detail proper linking, the DMCA take down procedure, and creative common licenses.
I then gave a general overview of Privacy issues. I explained the need for every website or blog to have a basic privacy policy which is a disclosure document. A privacy policy protects the owner of the site and the user. Read my article on Privacy policies here.
Lastly, we both touch on Defamation and how to avoid defamation on the Internet. We also discussed the Communications Decency Act which states website owners or internet service providers are not liable for defamatory statements left by visitors.
If you are interested in seeing the notes or hearing the audio from this presentation, please click here.
Tuesday, August 3, 2010
Is Google Winning the Battle in Key Words Advertising Litigation?
Google may have won the battle in Europe in regards to allowing advertisers to purchase trademarks as key words in their Google Ads program. Recently, the highest court in France found Google not liable for trademark infringement in the Google vs. LVMH case and referred the case back to the France Court of Appeals.
Previously, the lower court ruled Google was liable for trademark infringement for this practice. I previously wrote about this practice here. Basically Google allows a competitor of a company with a well established trademark like "Catepillar", to purchase the trademarked "Catepillar" as a key word. When a search is executed for the competitor company on Google, the competitor's link may show up before "Catepillar's" own link. Doesn't sound fair, does it? Many companies have either complained or sued Google for this practice and the courts have been split. In the U.S. one circuit agrees it is trademark infringement, while another circuit disagrees. However, in Europe, Google seemed to be having a harder time defending this practice as the courts have pretty much sided with the trademark owners.
The French lower court concluded a "likliehood of confusion" existed when consumers searched for the rightful trademark owner's products and instead a search produced a competitor's or imitator's products. I previously covered this ruling here. However, the higher court disagreed.
Where does this leave Google? Well Google feels like this decision was in their favor and believes and I quote "All cases which get ruled upon by the French Supreme Court go back to the French Court of Appeal as matter of course," Ben Novick, a Google spokesman said. Google further argues, "The French Court of Appeal will need to apply the law as laid down by the Cour de Cassation today. The Cour de Cassation has ruled that Google is not guilty of trade mark infringement, unfair competition or misleading advertising. All else is 'ifs' and 'buts."
However, LVMH feels differently. They welcome the case being remanded to the Court of Appeals and believes the French Court of Appeals "will enable the Paris Court of Appeals to rule on Google's civil liability when using trademarks without the trademark owner's authorization. The Court of Appeals will determine any potential wrongdoing committed by Google to the detriment of Louis Vuitton"
It will be an interesting outcome.
Previously, the lower court ruled Google was liable for trademark infringement for this practice. I previously wrote about this practice here. Basically Google allows a competitor of a company with a well established trademark like "Catepillar", to purchase the trademarked "Catepillar" as a key word. When a search is executed for the competitor company on Google, the competitor's link may show up before "Catepillar's" own link. Doesn't sound fair, does it? Many companies have either complained or sued Google for this practice and the courts have been split. In the U.S. one circuit agrees it is trademark infringement, while another circuit disagrees. However, in Europe, Google seemed to be having a harder time defending this practice as the courts have pretty much sided with the trademark owners.
The French lower court concluded a "likliehood of confusion" existed when consumers searched for the rightful trademark owner's products and instead a search produced a competitor's or imitator's products. I previously covered this ruling here. However, the higher court disagreed.
Where does this leave Google? Well Google feels like this decision was in their favor and believes and I quote "All cases which get ruled upon by the French Supreme Court go back to the French Court of Appeal as matter of course," Ben Novick, a Google spokesman said. Google further argues, "The French Court of Appeal will need to apply the law as laid down by the Cour de Cassation today. The Cour de Cassation has ruled that Google is not guilty of trade mark infringement, unfair competition or misleading advertising. All else is 'ifs' and 'buts."
However, LVMH feels differently. They welcome the case being remanded to the Court of Appeals and believes the French Court of Appeals "will enable the Paris Court of Appeals to rule on Google's civil liability when using trademarks without the trademark owner's authorization. The Court of Appeals will determine any potential wrongdoing committed by Google to the detriment of Louis Vuitton"
It will be an interesting outcome.
Wednesday, July 28, 2010
The Importance of a Website Compliance Program
Hello Hello!
I have been somewhat absent on this blog but that is going to change. My goal is to recommit to posting weekly on this blog. Thank you for continuing to read and visit this blog.
Today I am going to discuss the importance of an effective website compliance program. Website owners should ensure employees and users of their websites are not exposing them or their companies to liability by posting items that are illegal, defamatory, or infringing. A perfect example of a website that did not have an effective website compliance program is Blogetery.com. Two weeks ago, web host, Burst.net, shut down the Blogetery website, a platform that hosted 70,000 blogs. Why? The FBI contacted Burst.net and informed the company that an FBI investigation revealed the site's server contained terrorist threats and Al-Queda activity. There was only one blog in the platform that engaged in the illegal activity, but Burst.net chose to shut down the entire site because it violated the Terms of Service Agreement. Blogetery.com could have avoided termination of its services/website if they were ensuring all blogs posted on the blog were complying with applicable laws and Terms of Service.
What does a website compliance program look like?
A website compliance program involves content scanning and analysis to help ensure compliance with privacy rules, industry regulations, (such as HIPAA) as well as internal Web quality standards such as defamatory statements and infringing activity. A company can hire one or two people dedicated to ensuring all content posted is in compliance or a company can purchase website compliance software that will do the job.
For example, a website such as Blogetery.com, which hosted 70,000 blogs, should install website compliance software to ensure compliance. It would take an army of individuals to effectively ensure a site that large was in compliance. However, a smaller website or blog, can simply have one person dedicated to identifying potential liable information and removing it immediately. This person may also have the authority to issue the offender a warning and/or permanently block the offender from the site.
There are several website compliance software programs available. They can be programmed and tailored to fit each website's needs. Here are a few:
IBM Rational Policy Tester
Trace Security, Website Compliance Audit
Does your website have some sort of compliance program or procedure in place?
I have been somewhat absent on this blog but that is going to change. My goal is to recommit to posting weekly on this blog. Thank you for continuing to read and visit this blog.
Today I am going to discuss the importance of an effective website compliance program. Website owners should ensure employees and users of their websites are not exposing them or their companies to liability by posting items that are illegal, defamatory, or infringing. A perfect example of a website that did not have an effective website compliance program is Blogetery.com. Two weeks ago, web host, Burst.net, shut down the Blogetery website, a platform that hosted 70,000 blogs. Why? The FBI contacted Burst.net and informed the company that an FBI investigation revealed the site's server contained terrorist threats and Al-Queda activity. There was only one blog in the platform that engaged in the illegal activity, but Burst.net chose to shut down the entire site because it violated the Terms of Service Agreement. Blogetery.com could have avoided termination of its services/website if they were ensuring all blogs posted on the blog were complying with applicable laws and Terms of Service.
What does a website compliance program look like?
A website compliance program involves content scanning and analysis to help ensure compliance with privacy rules, industry regulations, (such as HIPAA) as well as internal Web quality standards such as defamatory statements and infringing activity. A company can hire one or two people dedicated to ensuring all content posted is in compliance or a company can purchase website compliance software that will do the job.
For example, a website such as Blogetery.com, which hosted 70,000 blogs, should install website compliance software to ensure compliance. It would take an army of individuals to effectively ensure a site that large was in compliance. However, a smaller website or blog, can simply have one person dedicated to identifying potential liable information and removing it immediately. This person may also have the authority to issue the offender a warning and/or permanently block the offender from the site.
There are several website compliance software programs available. They can be programmed and tailored to fit each website's needs. Here are a few:
IBM Rational Policy Tester
Trace Security, Website Compliance Audit
Does your website have some sort of compliance program or procedure in place?
Monday, July 12, 2010
Playboy Sues Artist Drake, Cash Money and Universal Music for Copyright Infringement
Drake, Cash Money, and Universal Music Group are currently being sued by Playboy Enterprises for copyright infringement. Playboy Enterprises claims Drake used a sample of their copyright protected song "Fallin' in Love" by Hamilton, Joe Frank, and Dennis/Reynoldstown in the beginning of the hit "The Best I Ever Had," without their express permission. I actually listened to "Fallin' in Love" and "The Best I Ever Had" and the tracks are very similar. You can listen to both songs here.
If Playboy's claims prove to be true, someone on Drake's team failed to properly receive clearance from Playboy to use the song. As I previously discussed on this blog, the process of clearing a song can be difficult. Usually, the producer or production team will use a sample of a song before it is actually cleared. Producers are not actually thinking about clearing songs while caught up in the creative process. The producer's legal team, agent or manager will contact the publisher or copyright owner to get permission to use the sample. However, getting clearance to use a song can take a while. Sometimes it takes months before there is a return call from the publisher or copyright owner. Also, there can be a break in negotiations regarding royalty payments. The publisher or copyright owner may demand royalty payments that the producer is not willing to pay. Or the copyright owner can simply refuse to allow the producer or artist to use the song. This happens often and can be very frustrating for artists.
As I previously discussed here on Black Web 2.0, a copyright owner can receive between $750 and $30,0000 per instance of copying against a defendant for copyright infringement. If the copyright owner can prove that the infringement was willful, i.e., the infringer had knowledge that the activity (copying) constituted infringement or recklessly disregarded the possibility of infringement, then the copyright owner can receive $150,000 per instance of copying. Playboy is claiming Drake and company willfully committed copyright infringement and are asking the court for an accounting of all of the profits Drake, Cash Money and Universal Music Group have made from the song. They are also requesting an injunction to stop the defendants from further playing or selling the song.
It is much easier to just ask permission.
If Playboy's claims prove to be true, someone on Drake's team failed to properly receive clearance from Playboy to use the song. As I previously discussed on this blog, the process of clearing a song can be difficult. Usually, the producer or production team will use a sample of a song before it is actually cleared. Producers are not actually thinking about clearing songs while caught up in the creative process. The producer's legal team, agent or manager will contact the publisher or copyright owner to get permission to use the sample. However, getting clearance to use a song can take a while. Sometimes it takes months before there is a return call from the publisher or copyright owner. Also, there can be a break in negotiations regarding royalty payments. The publisher or copyright owner may demand royalty payments that the producer is not willing to pay. Or the copyright owner can simply refuse to allow the producer or artist to use the song. This happens often and can be very frustrating for artists.
As I previously discussed here on Black Web 2.0, a copyright owner can receive between $750 and $30,0000 per instance of copying against a defendant for copyright infringement. If the copyright owner can prove that the infringement was willful, i.e., the infringer had knowledge that the activity (copying) constituted infringement or recklessly disregarded the possibility of infringement, then the copyright owner can receive $150,000 per instance of copying. Playboy is claiming Drake and company willfully committed copyright infringement and are asking the court for an accounting of all of the profits Drake, Cash Money and Universal Music Group have made from the song. They are also requesting an injunction to stop the defendants from further playing or selling the song.
It is much easier to just ask permission.
Tuesday, July 6, 2010
Rising Recording Artists and Producers: How to Properly Clear a Song?
I have been absent from this blog because I have been extremely busy working and writing for other publications and my own personal blog. But every week, visitors come to this blog to receive good information about Intellectual Property and I am grateful. I hope to update this blog more often. Thank you for continually reading and supporting this blog.
Popular recording artist Drake and his record labels Cash Money, Inc. and Universal Music Group, Inc. are currently being sued for copyright infringement for allegedly using a song as a sample without the copyright owner's express permission. If the allegations are proven true, I can only conclude that someone on Drake's production team either did not understand the process of clearing a song or simply did not follow through with the process. In my practice I have represented recording artist and producers and the clearance process can be one of frustration and confusion for an artist. Therefore it is important that artists' representatives are diligent in ensuring their clients are not committing infringement when creating art.
The clearance process is relatively simple but can be complex for numerous reasons. They are:
1. The copyright owner is not available,
2. The copyright owner refuses to give permission to use the work,
3. The copyright owner demands an excessive royalty,
4. The need to get permission from multiple copyright owners of one song.
For artists who are not represented, here are a few simple tips in clearing a song:
1. Search the U.S. Copyright Office database to locate the owner of a song. All copyright registrations require the owner to list their contact information.
2. If the copyright owner is not available, search the databases of ASCAP, BMI, or SESAC to properly locate the publisher or copyright owner.
3. Send a request to use the song and an offer of royalties in writing.
4. Follow-up the letter with a phone call.
5. Negotiate an acceptable royalty rate to use the song.
6. Get a licensing agreement in writing.
If the publisher or copyright owner refuses to negotiate or allow use of the song, the only remedy is to choose another song and get clearance. It is the copyright owner's right to allow use of their work as they see fit.
Popular recording artist Drake and his record labels Cash Money, Inc. and Universal Music Group, Inc. are currently being sued for copyright infringement for allegedly using a song as a sample without the copyright owner's express permission. If the allegations are proven true, I can only conclude that someone on Drake's production team either did not understand the process of clearing a song or simply did not follow through with the process. In my practice I have represented recording artist and producers and the clearance process can be one of frustration and confusion for an artist. Therefore it is important that artists' representatives are diligent in ensuring their clients are not committing infringement when creating art.
The clearance process is relatively simple but can be complex for numerous reasons. They are:
1. The copyright owner is not available,
2. The copyright owner refuses to give permission to use the work,
3. The copyright owner demands an excessive royalty,
4. The need to get permission from multiple copyright owners of one song.
For artists who are not represented, here are a few simple tips in clearing a song:
1. Search the U.S. Copyright Office database to locate the owner of a song. All copyright registrations require the owner to list their contact information.
2. If the copyright owner is not available, search the databases of ASCAP, BMI, or SESAC to properly locate the publisher or copyright owner.
3. Send a request to use the song and an offer of royalties in writing.
4. Follow-up the letter with a phone call.
5. Negotiate an acceptable royalty rate to use the song.
6. Get a licensing agreement in writing.
If the publisher or copyright owner refuses to negotiate or allow use of the song, the only remedy is to choose another song and get clearance. It is the copyright owner's right to allow use of their work as they see fit.
Wednesday, May 19, 2010
When and How to use Licensing Agreements
Intellectual Property is just that — property. It is a very valuable asset to the owner. It can be brought and sold, used as leverage, and licensed. Licensing Intellectual Property is a great source of income for IP owners. Licensing Intellectual Property serves two purposes for the IP owner: It provides valuable income and a way to further market and grow the owner’s business or IP in the market place.
An IP owner should seek or approach a potential licensee in the following circumstances:
1. If the potential licensee is an infringer. An IP owner can make it a win/win situation for both parties. The IP owner can receive income for the infringer using the owner’s IP. Also, the IP infringer gains the reputation of the IP owner and becomes a licensee rather than an infringer. Both parties can now make satisfactory income from the arrangement.
2. The IP owner wants to expand its product or services. By licensing the IP to like-minded licensees, the IP owner can expand its brand into other geographic areas or markets. It also allows the IP owner to expand its customer base.
How to License IP
1. First make sure you own the IP you want to license. An IP owner will need to prove to the licensee that the IP owner has rights to the Intellectual Property. Evidence can be demonstrated by USPTO and Copyright Registrations. In addition, if the IP owner acquired the IP from another owner, a transfer of ownership agreement should be presented.
2. Determine the value of the IP. IP Licensing fees can range from 1 to 20 percent of the sales of the licensee. The royalty fee or licensing fee depends on the value of the IP. If the IP is unique, the licensing fee is higher. If it is common, it is much lower. An IP owner can hire an IP agent to determine the value.
3. An IP owner should ensure that they receive a minimum licensing fee regardless of the licensee’s sales. This will ensure the IP owner receives compensation for their IP regardless of the licensee’s sales.
An IP owner should hire a IP attorney to draft an effective licensing or royalty agreement to ensure the agreement protects the IP owner’s interest. The agreement will include such particulars as how the IP should be used or displayed. The brand has to be communicated correctly so it does not use its value.
An IP owner should seek or approach a potential licensee in the following circumstances:
1. If the potential licensee is an infringer. An IP owner can make it a win/win situation for both parties. The IP owner can receive income for the infringer using the owner’s IP. Also, the IP infringer gains the reputation of the IP owner and becomes a licensee rather than an infringer. Both parties can now make satisfactory income from the arrangement.
2. The IP owner wants to expand its product or services. By licensing the IP to like-minded licensees, the IP owner can expand its brand into other geographic areas or markets. It also allows the IP owner to expand its customer base.
How to License IP
1. First make sure you own the IP you want to license. An IP owner will need to prove to the licensee that the IP owner has rights to the Intellectual Property. Evidence can be demonstrated by USPTO and Copyright Registrations. In addition, if the IP owner acquired the IP from another owner, a transfer of ownership agreement should be presented.
2. Determine the value of the IP. IP Licensing fees can range from 1 to 20 percent of the sales of the licensee. The royalty fee or licensing fee depends on the value of the IP. If the IP is unique, the licensing fee is higher. If it is common, it is much lower. An IP owner can hire an IP agent to determine the value.
3. An IP owner should ensure that they receive a minimum licensing fee regardless of the licensee’s sales. This will ensure the IP owner receives compensation for their IP regardless of the licensee’s sales.
An IP owner should hire a IP attorney to draft an effective licensing or royalty agreement to ensure the agreement protects the IP owner’s interest. The agreement will include such particulars as how the IP should be used or displayed. The brand has to be communicated correctly so it does not use its value.
Tuesday, April 27, 2010
Theft of Trade Secrets: Apple, Gizmodo, and Apple Software Engineer
By now everyone has heard that Gizmodo's Editor, Jason Chen's, home was raided by authorities last week. The police seized computers and servers in an effort to ascertain how he obtained the stolen i-Phone 4G prototype phone. Gizmodo admitted they paid $5000.00 for the unreleased prototype and refused to reveal their source. The knew the phone was stolen and yet they still displayed and discussed the unreleased i-Phone 4G prototype on their website.
Of course Apple did not take their actions too kindly and promptly launched an investigation. Chen and Gizmodo are claiming the search warrant was unlawful because he deserves reporter's privilege. However reporter's privilege has never extended to a reporter who knowingly commits a crime or aids and abets in the commission of a crime. They are many arguments regarding what type of crime was committed by Chen, Gizmodo, and the employee that "allegedly" left the phone at a bar. However, I argue that Apple has every right to pursue prosecution based on California Law concerning "Theft of Trade Secrets."
Trade Secrets
Trade Secrets are a type of intellectual property. A trade secret can be a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable to the public.
Some examples of Trade Secrets are:
1. Formula for the soft drink, Coca-Cola
2. Business processes
3. Marketing Strategies
4. Food Recipes
5. Computer Algorithms
6. Prototypes
In addition, the trade secret must be of an economic advantage over a business' competitors or customers. Lastly, the owner of the trade secret must take reasonable efforts to maintain its secrecy.
Apparently Apple is upset that Gizmodo has exposed company's trade secrets of the prototype. Of course if Apple's competitors have been watching surely this exposure lessens Apple's competitive advantage over the competition. But knowing Apple, they will simply raise the stakes and change the design.
Consequences for Theft of Trade Secrets
Under California Law, the acquisition by improper means of trade secrets (meaning by theft, bribery, or breach of duty to maintain secret) is a punishable criminal crime and civil liability. California Civil Code Section 3426.1-3426.11 California law also holds the receiver of a trade secret liable if the receiver "knew or should have known" that the alleged wrongdoing was occurring. California Civil Code Sec. 3426.1(b).
Clearly Chen and Gizmodo knew that they had received the i-Phone 4G prototype, unlawfully. Therefore according to California Statute they are guilty of Theft of Trade Secrets.
In addition the California Penal Code states Theft of Trade Secrets is a crime and punishable by imprisonment in state prison or county jail not to exceed 1 year. California Penal Code Sec. 499 (c). I gather this is why the authorities raided Chen's home in an effort to ascertain whether they have enough evidence to prosecute Chen under this code.
One thing is clear. Apple has put the public on notice that they are not tolerating any such leaks in the future.
Of course Apple did not take their actions too kindly and promptly launched an investigation. Chen and Gizmodo are claiming the search warrant was unlawful because he deserves reporter's privilege. However reporter's privilege has never extended to a reporter who knowingly commits a crime or aids and abets in the commission of a crime. They are many arguments regarding what type of crime was committed by Chen, Gizmodo, and the employee that "allegedly" left the phone at a bar. However, I argue that Apple has every right to pursue prosecution based on California Law concerning "Theft of Trade Secrets."
Trade Secrets
Trade Secrets are a type of intellectual property. A trade secret can be a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable to the public.
Some examples of Trade Secrets are:
1. Formula for the soft drink, Coca-Cola
2. Business processes
3. Marketing Strategies
4. Food Recipes
5. Computer Algorithms
6. Prototypes
In addition, the trade secret must be of an economic advantage over a business' competitors or customers. Lastly, the owner of the trade secret must take reasonable efforts to maintain its secrecy.
Apparently Apple is upset that Gizmodo has exposed company's trade secrets of the prototype. Of course if Apple's competitors have been watching surely this exposure lessens Apple's competitive advantage over the competition. But knowing Apple, they will simply raise the stakes and change the design.
Consequences for Theft of Trade Secrets
Under California Law, the acquisition by improper means of trade secrets (meaning by theft, bribery, or breach of duty to maintain secret) is a punishable criminal crime and civil liability. California Civil Code Section 3426.1-3426.11 California law also holds the receiver of a trade secret liable if the receiver "knew or should have known" that the alleged wrongdoing was occurring. California Civil Code Sec. 3426.1(b).
Clearly Chen and Gizmodo knew that they had received the i-Phone 4G prototype, unlawfully. Therefore according to California Statute they are guilty of Theft of Trade Secrets.
In addition the California Penal Code states Theft of Trade Secrets is a crime and punishable by imprisonment in state prison or county jail not to exceed 1 year. California Penal Code Sec. 499 (c). I gather this is why the authorities raided Chen's home in an effort to ascertain whether they have enough evidence to prosecute Chen under this code.
One thing is clear. Apple has put the public on notice that they are not tolerating any such leaks in the future.
Thursday, April 22, 2010
The Do's and Don'ts of Twitter!
Hello Everyone:
Here is a copy of an article I posted on Black Web 2.0 regarding legal pitfalls Twitters find themselves in using Twitter.
Let me know what you think.
In light of the recent Library of Congress archive of all of our “tweets”, Twitterers need to be more cautious and cognizant of what they discuss or tweet on Twitter. Now most of us keep it simple and don’t engage in legal pitfalls such as defamation, terrorist threats, pornography, disclosure of private information, or intellectual property infringement. However there are others that treat Twitter like the wild wild west of social media networks. Defamation, pornography, and threats of Presidential assassination are rampant. There have been lawsuits filed and legal action taken against Twitters who engage in this type of behavior.
When using any social media network, anything you say or promote, good or bad is forever in cyberspace waiting to reward or punish you. And now that the federal government via the Library of Congress has all of our tweets, we should be more cautious and strategic about what we say on Twitter. Here is a list of Twitter dos and don’ts to assist Twitterers in avoiding legal liability or jail time.
1. Don’t threaten to kill the President or anyone else for that matter. Terrorist threats are a felony crime and you will go to jail.
2. Don’t engage in conversations or make statements about a person’s character or reputation unless they are 100% true, already known to the public, and are made for news reporting purposes and not to maliciously ruin a person’s reputation. Translation: Stop the Twitter fights!
3. Sending links to porn sites and posting porn is never a good idea. Links could potentially link to child porn sites and child pornography is a federal crime.
4. Although Twitter does not claim in ownership in Twitter’s content which may include intellectual property, other Twitter users may infringe or use your content for their own purposes. If you are tweeting copyright material, please do put a © sign behind the tweets to put others on notice of your ownership. This includes original thoughts, quotes, phrases, ideas, pictures, etc.
5. Never discuss company trade secrets or reveal your own private identifying information on Twitter.
Remember when using Twitter or any other social network, use common sense. Don’t engage in behavior that can cost you your freedom, job, or family.
Here is a copy of an article I posted on Black Web 2.0 regarding legal pitfalls Twitters find themselves in using Twitter.
Let me know what you think.
In light of the recent Library of Congress archive of all of our “tweets”, Twitterers need to be more cautious and cognizant of what they discuss or tweet on Twitter. Now most of us keep it simple and don’t engage in legal pitfalls such as defamation, terrorist threats, pornography, disclosure of private information, or intellectual property infringement. However there are others that treat Twitter like the wild wild west of social media networks. Defamation, pornography, and threats of Presidential assassination are rampant. There have been lawsuits filed and legal action taken against Twitters who engage in this type of behavior.
When using any social media network, anything you say or promote, good or bad is forever in cyberspace waiting to reward or punish you. And now that the federal government via the Library of Congress has all of our tweets, we should be more cautious and strategic about what we say on Twitter. Here is a list of Twitter dos and don’ts to assist Twitterers in avoiding legal liability or jail time.
1. Don’t threaten to kill the President or anyone else for that matter. Terrorist threats are a felony crime and you will go to jail.
2. Don’t engage in conversations or make statements about a person’s character or reputation unless they are 100% true, already known to the public, and are made for news reporting purposes and not to maliciously ruin a person’s reputation. Translation: Stop the Twitter fights!
3. Sending links to porn sites and posting porn is never a good idea. Links could potentially link to child porn sites and child pornography is a federal crime.
4. Although Twitter does not claim in ownership in Twitter’s content which may include intellectual property, other Twitter users may infringe or use your content for their own purposes. If you are tweeting copyright material, please do put a © sign behind the tweets to put others on notice of your ownership. This includes original thoughts, quotes, phrases, ideas, pictures, etc.
5. Never discuss company trade secrets or reveal your own private identifying information on Twitter.
Remember when using Twitter or any other social network, use common sense. Don’t engage in behavior that can cost you your freedom, job, or family.
Monday, April 12, 2010
Elan Requesting Ban on Imports of Apple’s iPAD
Elan, a touch-pad manufacturer, petitioned the United States International Trade Commission requesting the Commission ban all imports of Apple’s new iPad. Elan and Apple are currently involved in patent infringement litigation regarding the “touch-pad” function of Apple’s iPhone, iPad, iPod Touch, and Apple’s line of MacBooks. Elan has alleged that Apple used two of the company’s patents for “touch-pad” technology without their permission and refuses to properly compensate the company for creating the technology. Apple is denying the allegation and is also counter-suing Elan for infringing three of its patents for “touch-pad” technology.
Ban on Imports
Although Apple is an American company, all of its products are manufactured by two Chinese IT solutions companies, Foxconn and Inventec. Apple contracts with these Chinese manufacturers to produce their product and they in turn ship the products back to the U.S. for sale.
U.S. International Trade Commission
The International Trade Commission is a independent organization that “with broad investigative responsibilities on matters of trade. Among other things, the Commission also adjudicates cases involving imports that allegedly infringe intellectual property rights.” If the International Trade Commission determines that Apple violated Trade Laws by importing infringing products, the Commission could ban all Apple “touch-pad” technology into the U.S.
What’s Next
I doubt the International Trade Commission will issue such a ban on Apple’s “touch-pad” products. Both Elan and Apple are claiming patent infringement and are entrenched in patent infringement litigation. I think the International Trade Commission may await the result of any settlement or court decision before making such a decision. I think we all have to wait until the dust settles on this one.
Ban on Imports
Although Apple is an American company, all of its products are manufactured by two Chinese IT solutions companies, Foxconn and Inventec. Apple contracts with these Chinese manufacturers to produce their product and they in turn ship the products back to the U.S. for sale.
U.S. International Trade Commission
The International Trade Commission is a independent organization that “with broad investigative responsibilities on matters of trade. Among other things, the Commission also adjudicates cases involving imports that allegedly infringe intellectual property rights.” If the International Trade Commission determines that Apple violated Trade Laws by importing infringing products, the Commission could ban all Apple “touch-pad” technology into the U.S.
What’s Next
I doubt the International Trade Commission will issue such a ban on Apple’s “touch-pad” products. Both Elan and Apple are claiming patent infringement and are entrenched in patent infringement litigation. I think the International Trade Commission may await the result of any settlement or court decision before making such a decision. I think we all have to wait until the dust settles on this one.
Tuesday, April 6, 2010
Net Neutrality: Good or Bad Public Policy
Hello:
Here is a reprint of an article I wrote over at Black Web 2.0. It is gaining a lot of buzz. What do you think of Net Neutrality.
There is a lot of buzz surrounding Net Neutrality. Consumers want to know how it affects them in regards to their Internet service. In this article, I will attempt to explain Net Neutrality in plain terms and further explain what is means for you, the consumer.
Net Neutrality
Net Neutrality is the principle that everyone regardless of wealth, power, or influence should have the same access to the Internet.
Does everyone have the same access to the Internet?
Apparently not. The Federal Communications Commissions imposed sanctions against Comcast when it discovered the cable giant discriminated against peer-to-peer networking file traffic in an effort to restrict bandwidth usage demand on its broadband network. Comcast is appealing this decision. Consumers have also alleged the principle providers of broadband service, are charging a premium to consumers who require faster connections, better quality of service, and larger bandwidths to transmit data.
Federal Communications Policy regarding Internet Freedoms
The FCC imposed sanctions against Comcast based on the Four Internet Freedoms enacted in 2005. Due to numerous consumer complaints and vocal opposition from the cable industry, last fall, the FCC included two more rules to round out the set. They are as follows:
1. Consumers are entitled to access the lawful Internet content of their choice.
2. Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
3. Consumers are entitled to connect their choice of legal devices that do not harm the network.
4. Consumers are entitled to competition among network providers, application and service providers, and content providers.
5. Broadband providers cannot block or degrade lawful traffic over their networks, favor certain content or applications over others and cannot “disfavor an Internet service just because it competes with a similar service offered by that broadband provider.”
6. Broadband providers must be transparent about the service they are providing and how they are running their networks.
The FCC announced their intention to formally adopt all 6 rules that will become the FCC policy on Net Neutrality. The Commission requested public comment and debate regarding the proposed rules and will make its final decision this year.
How Does Net Neutrality Affect the Consumer?
Net Neutrality benefits the consumer because the consumer will be confident they can use the Internet at an affordable flat rate without having to pay for faster connections or more bandwidth. Also consumers can rest assured that if they are using a large amount of bandwidth, the cable operators would not be able to block their Internet access.
Net Neutrality particularly affects business consumers who offer VoIP, downloadable movies, gaming and other services that require a great deal of bandwidth. These business consumers argue that Net Neutrality is needed so they can effectively compete with Cable operators that may offer the same services.
How Does Net Neutrality Affect Cable Operators?
Of course, cable operators and other Internet Service Providers are against Net Neutrality. The cable operators argue they have to charge a premium for better quality of service (faster connections, larger bandwidth). Understandably, the Cable operators argue that they will not be able to invest in better networks and connections if they cannot charge a premium to those who “tax” the broadband system. They also contend that Net Neutrality will stifle competition and result in higher flat rates for consumers.
The bottom line is that there needs to be some type of balance regarding Net Neutrality Rules. Yes the Internet should be open and non-discriminatory. However, providers of broadband and other Internet services should be able to charge a bit more for consumers who tax their service.
Here is a reprint of an article I wrote over at Black Web 2.0. It is gaining a lot of buzz. What do you think of Net Neutrality.
There is a lot of buzz surrounding Net Neutrality. Consumers want to know how it affects them in regards to their Internet service. In this article, I will attempt to explain Net Neutrality in plain terms and further explain what is means for you, the consumer.
Net Neutrality
Net Neutrality is the principle that everyone regardless of wealth, power, or influence should have the same access to the Internet.
Does everyone have the same access to the Internet?
Apparently not. The Federal Communications Commissions imposed sanctions against Comcast when it discovered the cable giant discriminated against peer-to-peer networking file traffic in an effort to restrict bandwidth usage demand on its broadband network. Comcast is appealing this decision. Consumers have also alleged the principle providers of broadband service, are charging a premium to consumers who require faster connections, better quality of service, and larger bandwidths to transmit data.
Federal Communications Policy regarding Internet Freedoms
The FCC imposed sanctions against Comcast based on the Four Internet Freedoms enacted in 2005. Due to numerous consumer complaints and vocal opposition from the cable industry, last fall, the FCC included two more rules to round out the set. They are as follows:
1. Consumers are entitled to access the lawful Internet content of their choice.
2. Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
3. Consumers are entitled to connect their choice of legal devices that do not harm the network.
4. Consumers are entitled to competition among network providers, application and service providers, and content providers.
5. Broadband providers cannot block or degrade lawful traffic over their networks, favor certain content or applications over others and cannot “disfavor an Internet service just because it competes with a similar service offered by that broadband provider.”
6. Broadband providers must be transparent about the service they are providing and how they are running their networks.
The FCC announced their intention to formally adopt all 6 rules that will become the FCC policy on Net Neutrality. The Commission requested public comment and debate regarding the proposed rules and will make its final decision this year.
How Does Net Neutrality Affect the Consumer?
Net Neutrality benefits the consumer because the consumer will be confident they can use the Internet at an affordable flat rate without having to pay for faster connections or more bandwidth. Also consumers can rest assured that if they are using a large amount of bandwidth, the cable operators would not be able to block their Internet access.
Net Neutrality particularly affects business consumers who offer VoIP, downloadable movies, gaming and other services that require a great deal of bandwidth. These business consumers argue that Net Neutrality is needed so they can effectively compete with Cable operators that may offer the same services.
How Does Net Neutrality Affect Cable Operators?
Of course, cable operators and other Internet Service Providers are against Net Neutrality. The cable operators argue they have to charge a premium for better quality of service (faster connections, larger bandwidth). Understandably, the Cable operators argue that they will not be able to invest in better networks and connections if they cannot charge a premium to those who “tax” the broadband system. They also contend that Net Neutrality will stifle competition and result in higher flat rates for consumers.
The bottom line is that there needs to be some type of balance regarding Net Neutrality Rules. Yes the Internet should be open and non-discriminatory. However, providers of broadband and other Internet services should be able to charge a bit more for consumers who tax their service.
Monday, April 5, 2010
IPLAW101 Listed as 1 of 20 Twitters to follow on theGrio a NBC Universal Company
Hello Everyone!
Good news! IPLAW101 was listed as one of the 20 Twitters you should follow on Twitter! Thanks to theGrio and BlackWeb20.com. Check out the slide show of the 20 influential Twitters here.
theGrio is a a video-centric news community site devoted to providing African Americans with stories and perspectives that appeal to them but are underrepresented in existing national news outlets. It is affiliated with MSNBC.com and is owned by NBC Universal. Black Web 2.0 is is the premier destination for African-American’s in Technology and New Media.
Good news! IPLAW101 was listed as one of the 20 Twitters you should follow on Twitter! Thanks to theGrio and BlackWeb20.com. Check out the slide show of the 20 influential Twitters here.
theGrio is a a video-centric news community site devoted to providing African Americans with stories and perspectives that appeal to them but are underrepresented in existing national news outlets. It is affiliated with MSNBC.com and is owned by NBC Universal. Black Web 2.0 is is the premier destination for African-American’s in Technology and New Media.
Wednesday, March 24, 2010
Legal Issues in Social Gaming
Hello:
Here is an article I wrote on Black Web 2.0 about legal issues in Social Gaming. Check it out and tell me what you think.
The short answer is a resounding NO!
Social gaming is the new IT factor in Social Networking. There are tons of Social Games that are accessible through iPhone apps, Facebook, and other Social Networks. Even the mega traditional gaming companies, like EA Sports, are getting into Social/Online Gaming.
Social gaming is exciting and a way to socialize with a multitude of individuals from around the world. However, when creating a user account to engage in social gaming networks, a user is essentially signing away a host of legal rights. After reading several Terms of Service agreements of the most popular social gaming networks, I have concluded a player uses these services at their own risk. Below are some clauses that I found particularly troublesome:
1. Privacy. Most social gaming privacy clauses will promise not to share or sell your personal information. However, the clauses go on to state how the service provider collects your information and how and what will be shared. For example, when using a social gaming service, the service will send Cookies to collect information about your Internet usage. The cookies will also collect “certain technical information” about your computer and Internet Service Provider. Third parties companies, who have a relationship with the social gaming service, can also send Cookies to your computer to collect Data. In addition, those companies may have access to your personal information. In most cases, players are automatically enrolled in third party programs and/or services and the social gaming service can not provide you with an option to opt out of these programs or services.
Privacy laws require Internet Service Providers to disclose how and what information is collected from users of their service. Although, the data collection process may be questionable, if disclosed properly it is permitted. However, users of Social Gaming sites may still want to think twice before engaging in such services. Recently Storm 8, a provider of Social Games for iPhones, was sued for collecting phone numbers from iPhone users without disclosing this practice to users or with their consent.
3. Data Security. Most Social Gaming Services protect user personal account information. This information includes birth dates and billing information. These sites state all account information is stored on secured severs behind firewalls. Most services use SSL technology to encrypt the account information. Usually only social security numbers, billing information, and dates of births are encrypted. Generally encryption does not apply to email addresses, phone numbers, or any other identifying information.
3. Defamation. All Social Gaming Networks prohibit any defaming, harassing, intimidating, or discriminatory behavior. However, the Social Gaming site has the right to remove this information, but is not obligated to remove the offensive material.
4. Intellectual Property. Any copyrights or trademarks the User owns or creates on the Social Gaming site belongs to the copyright or trademark owner. However, the user grants the site a royalty free license to use the copyright or trademark as they wish. When dealing with copyrights, the social gaming site can sell the copyright, make a derivative work (ex. turn a short story into a movie) of the copyright, publish or broadcast the copyright without any compensation to the copyright owner. Essentially, the Social Gaming site can use your copyright to make money while not paying you. Ouch.
5. Right to Use Your Likeness. Users also give the Social Gaming site a right to use their persona, name, or likeness without any compensation to the the User.
6. All Users are prohibited from advertising or promoting themselves or any business or service. However, the Social Gaming site can include the User in advertising or promotion campaigns without any compensation.
In conclusion, when a person signs up to use social gaming services, they should read the Terms of Service Agreements and be aware of their legal rights. In my opinion, engaging in social gaming sites legally benefits the service provider and not the user. However, the player is entertained and sometimes that is enough. My advice: User Beware.
Here is an article I wrote on Black Web 2.0 about legal issues in Social Gaming. Check it out and tell me what you think.
The short answer is a resounding NO!
Social gaming is the new IT factor in Social Networking. There are tons of Social Games that are accessible through iPhone apps, Facebook, and other Social Networks. Even the mega traditional gaming companies, like EA Sports, are getting into Social/Online Gaming.
Social gaming is exciting and a way to socialize with a multitude of individuals from around the world. However, when creating a user account to engage in social gaming networks, a user is essentially signing away a host of legal rights. After reading several Terms of Service agreements of the most popular social gaming networks, I have concluded a player uses these services at their own risk. Below are some clauses that I found particularly troublesome:
1. Privacy. Most social gaming privacy clauses will promise not to share or sell your personal information. However, the clauses go on to state how the service provider collects your information and how and what will be shared. For example, when using a social gaming service, the service will send Cookies to collect information about your Internet usage. The cookies will also collect “certain technical information” about your computer and Internet Service Provider. Third parties companies, who have a relationship with the social gaming service, can also send Cookies to your computer to collect Data. In addition, those companies may have access to your personal information. In most cases, players are automatically enrolled in third party programs and/or services and the social gaming service can not provide you with an option to opt out of these programs or services.
Privacy laws require Internet Service Providers to disclose how and what information is collected from users of their service. Although, the data collection process may be questionable, if disclosed properly it is permitted. However, users of Social Gaming sites may still want to think twice before engaging in such services. Recently Storm 8, a provider of Social Games for iPhones, was sued for collecting phone numbers from iPhone users without disclosing this practice to users or with their consent.
3. Data Security. Most Social Gaming Services protect user personal account information. This information includes birth dates and billing information. These sites state all account information is stored on secured severs behind firewalls. Most services use SSL technology to encrypt the account information. Usually only social security numbers, billing information, and dates of births are encrypted. Generally encryption does not apply to email addresses, phone numbers, or any other identifying information.
3. Defamation. All Social Gaming Networks prohibit any defaming, harassing, intimidating, or discriminatory behavior. However, the Social Gaming site has the right to remove this information, but is not obligated to remove the offensive material.
4. Intellectual Property. Any copyrights or trademarks the User owns or creates on the Social Gaming site belongs to the copyright or trademark owner. However, the user grants the site a royalty free license to use the copyright or trademark as they wish. When dealing with copyrights, the social gaming site can sell the copyright, make a derivative work (ex. turn a short story into a movie) of the copyright, publish or broadcast the copyright without any compensation to the copyright owner. Essentially, the Social Gaming site can use your copyright to make money while not paying you. Ouch.
5. Right to Use Your Likeness. Users also give the Social Gaming site a right to use their persona, name, or likeness without any compensation to the the User.
6. All Users are prohibited from advertising or promoting themselves or any business or service. However, the Social Gaming site can include the User in advertising or promotion campaigns without any compensation.
In conclusion, when a person signs up to use social gaming services, they should read the Terms of Service Agreements and be aware of their legal rights. In my opinion, engaging in social gaming sites legally benefits the service provider and not the user. However, the player is entertained and sometimes that is enough. My advice: User Beware.
Thursday, March 18, 2010
Does Your Company Have a Social Media Policy?
Hello:
If you have not figured it out by now, Social Media is mainstream. Because of Social Media's popularity, employers and employees have to be careful when engaging in Social Media in and outside of the workplace. Misuse of Social Media by employees can expose companies to liability, lost customers, and misappropriation of intellectual property.
EVERY company should have a Social Media policy outlining how employees should conduct themselves when using Social Media tools. This conduct should be followed whether using Social Media in a work capacity or for personal use. Remember, once something is posted on Social Media sites, it is forever out in cyberspace for the world to see.
When implementing a Social Media Policy, a company should ensure the policy contains the following provisions:
1. When employees are using social media tools for personal use, they should not use any company trademarks (identifying logos, names), or copyrights in any manner.
2. Employees should never hold themselves out as a representative of the company, unless they have received express permission from legal and management to do so.
3. Employees should never disclose or discuss company confidential, trade secrets, or other propriety company information on Social Media platforms.
4. When using Social Media platforms, employees should never engage in false, inappropriate, threatening, harassing, or defaming conduct that would be harmful to the company, employees, or damage company relationships.
5. Employees should be aware that when using Social Media tools at work, the employer has a right to view and monitor Social Media use even if the employee is using their personal Social Media accounts.
When employers provide employees with Social Media guidelines, they should also offer Social Media training and give examples of inappropriate conduct. Investing in Social Media guidelines and training now can save a company a huge headache later.
If you have not figured it out by now, Social Media is mainstream. Because of Social Media's popularity, employers and employees have to be careful when engaging in Social Media in and outside of the workplace. Misuse of Social Media by employees can expose companies to liability, lost customers, and misappropriation of intellectual property.
EVERY company should have a Social Media policy outlining how employees should conduct themselves when using Social Media tools. This conduct should be followed whether using Social Media in a work capacity or for personal use. Remember, once something is posted on Social Media sites, it is forever out in cyberspace for the world to see.
When implementing a Social Media Policy, a company should ensure the policy contains the following provisions:
1. When employees are using social media tools for personal use, they should not use any company trademarks (identifying logos, names), or copyrights in any manner.
2. Employees should never hold themselves out as a representative of the company, unless they have received express permission from legal and management to do so.
3. Employees should never disclose or discuss company confidential, trade secrets, or other propriety company information on Social Media platforms.
4. When using Social Media platforms, employees should never engage in false, inappropriate, threatening, harassing, or defaming conduct that would be harmful to the company, employees, or damage company relationships.
5. Employees should be aware that when using Social Media tools at work, the employer has a right to view and monitor Social Media use even if the employee is using their personal Social Media accounts.
When employers provide employees with Social Media guidelines, they should also offer Social Media training and give examples of inappropriate conduct. Investing in Social Media guidelines and training now can save a company a huge headache later.
Wednesday, March 10, 2010
Give Credit Where Credit Is Due! Copying Without Permission
Hello:
I wrote this article due to the rampant unauthorized copying of copyright protected work on the Internet. This article is also posted here on Black Web 2.0. Share your thought.
When Copying A Work If You Give Credit, Do You Still Need Permission to Copy? Before you have to even consider playing your ‘Get out of Jail Free’ card the short answer is absolutely yes!
There is a huge misconception among Internet users and Bloggers that as long as credit is given to the Copyright owner, it is permissible to copy, reproduce, use snippets or paraphrase the copyright protected work. However, the Copyright Act clearly states: any person who exercises the exclusive rights of a copyright owner, without the copyright owner’s express permission, is an infringer of copyright. 17 USC sec. 501(a).
This means that anyone who wants to use the copyright of a copyright owner must directly contact the copyright owner and receive written (express) permission to copy or reproduce the work. Simply giving credit will not do.
This law also pertains to photos. When writing blog posts, most bloggers simply search the Internet for an image to complement their blog post. This is a dangerous practice and can result in a Cease and Desist letter from the Copyright Owner or a Copyright Infringement action. To avoid legal action, simply contact the owner and ask if it is permissible to use their image. The majority of Copyright owners will agree as long as you give them credit. A simple email will only take 5 minutes to write. This is a small time investment to ensure you are not breaking the law. If you can not locate the Copyright owner, use your own image and/or writing. Copying without permission is simply not worth the legal headache.
However, there are certain instances where copying a work without the Copyright Owner’s permission is permissible. A copyright owner can use a creative commons license to allow users to use their work without permission in certain circumstances. Below is an example of a Creative Common License:
1. You are free to copy the work as long as you attribute the work to the copyright owner. However you can not use the work for commercial (monetary) purposes.
Lastly, a statement such as the one below, does not protect an individual from Copyright Infringement Actions:
If you hold the copyright(s) to any music or other content that can be found here and would like for it to be removed, please contact me and it will be removed immediately.
This clause is not a “safe haven” for Copyright Infringers. I will say it again, you must get the Copyright Owner’s express permission to use the Copyright protected work. The above clause will only expose an Infringer to liability.
I wrote this article due to the rampant unauthorized copying of copyright protected work on the Internet. This article is also posted here on Black Web 2.0. Share your thought.
When Copying A Work If You Give Credit, Do You Still Need Permission to Copy? Before you have to even consider playing your ‘Get out of Jail Free’ card the short answer is absolutely yes!
There is a huge misconception among Internet users and Bloggers that as long as credit is given to the Copyright owner, it is permissible to copy, reproduce, use snippets or paraphrase the copyright protected work. However, the Copyright Act clearly states: any person who exercises the exclusive rights of a copyright owner, without the copyright owner’s express permission, is an infringer of copyright. 17 USC sec. 501(a).
This means that anyone who wants to use the copyright of a copyright owner must directly contact the copyright owner and receive written (express) permission to copy or reproduce the work. Simply giving credit will not do.
This law also pertains to photos. When writing blog posts, most bloggers simply search the Internet for an image to complement their blog post. This is a dangerous practice and can result in a Cease and Desist letter from the Copyright Owner or a Copyright Infringement action. To avoid legal action, simply contact the owner and ask if it is permissible to use their image. The majority of Copyright owners will agree as long as you give them credit. A simple email will only take 5 minutes to write. This is a small time investment to ensure you are not breaking the law. If you can not locate the Copyright owner, use your own image and/or writing. Copying without permission is simply not worth the legal headache.
However, there are certain instances where copying a work without the Copyright Owner’s permission is permissible. A copyright owner can use a creative commons license to allow users to use their work without permission in certain circumstances. Below is an example of a Creative Common License:
1. You are free to copy the work as long as you attribute the work to the copyright owner. However you can not use the work for commercial (monetary) purposes.
Lastly, a statement such as the one below, does not protect an individual from Copyright Infringement Actions:
If you hold the copyright(s) to any music or other content that can be found here and would like for it to be removed, please contact me and it will be removed immediately.
This clause is not a “safe haven” for Copyright Infringers. I will say it again, you must get the Copyright Owner’s express permission to use the Copyright protected work. The above clause will only expose an Infringer to liability.
Friday, March 5, 2010
Before Investing Start-Up Dollars, Do A Trademark Search Before Choosing A Business Name
Hello!
I hope all is wonderful! Below is a copy of an article I wrote for Black Web 2.0 that is getting great feedback. I hope this article is helpful!
Picture this…Some friends and I decide to start an internet business and we choose a catchy and SEO friendly name. We invest money into start-up operation costs. We purchase the domain name, legally incorporate, obtain business bank accounts, hire personnel, create a logo, and order marketing materials. We send out press releases and obtain investors. We are ready to go. We realize this is a hot concept, so we want to obtain trademark protection for the business name and identity. We hire an attorney to assist with obtaining trademark registration and he discovers the name is already trademarked by another company. Yikes!
Unfortunately, I see this scenario very often in my practice. When choosing a business name or identity during the start-up phase, most business owners simply do not think about trademark registration. However, in my legal opinion as soon as a business owner chooses a company name a trademark search to assess the availability of the name or logo should be done immediately. Taking this proactive approach can save a new business from wasting dollars on a name and/or identity they can not own. Furthermore, if a trademark search clears a business to register the chosen name, logos, or other brand identifying material, the business should immediately file for a trademark to claim ownership of the mark. Very often individuals tend to infringe on company and or trademark names if they see the potential in its success! Remember, the first to use the name in commerce is the priority trademark owner!
Here are a few trademark search tips I recommend when starting a business and choosing a company name.
1. Do a preliminary search on Google to ensure that a trademark right has not been claimed in the company’s business name;
2. A preliminary search on Google will cost $0. However, Google will not find viable and valid trademark rights of companies that are not on the internet or do not have active advertising and marketing campaigns. To fully ensure your company is not infringing another trademark owner’s rights, a more comprehensive search can be done.
3. Hire a trademark attorney to perform a comprehensive search. A comprehensive search will include:
* A search of the USPTO database, all 50 states trademark databases, company names that have incorporated with the state, trade names, the Copyright Office database, and the internet.
* If you plan to sell your product or service in another country, you can also obtain an international search.
* The cost of a comprehensive search for a name only starts at $550.00. However a search performed for a logo and name, starts at $950.00. International Searches do require much larger fees.
There are several companies that perform comprehensive searches. Here are a few:
CT Corsearch.
CompuMark
4 Trademark.com
These companies gather the information but do not analyze it or ensure your trademark is not infringing. A trademark attorney can analyze the contents of the search and give you a legal opinion regarding the availability of your mark.
I hope all is wonderful! Below is a copy of an article I wrote for Black Web 2.0 that is getting great feedback. I hope this article is helpful!
Picture this…Some friends and I decide to start an internet business and we choose a catchy and SEO friendly name. We invest money into start-up operation costs. We purchase the domain name, legally incorporate, obtain business bank accounts, hire personnel, create a logo, and order marketing materials. We send out press releases and obtain investors. We are ready to go. We realize this is a hot concept, so we want to obtain trademark protection for the business name and identity. We hire an attorney to assist with obtaining trademark registration and he discovers the name is already trademarked by another company. Yikes!
Unfortunately, I see this scenario very often in my practice. When choosing a business name or identity during the start-up phase, most business owners simply do not think about trademark registration. However, in my legal opinion as soon as a business owner chooses a company name a trademark search to assess the availability of the name or logo should be done immediately. Taking this proactive approach can save a new business from wasting dollars on a name and/or identity they can not own. Furthermore, if a trademark search clears a business to register the chosen name, logos, or other brand identifying material, the business should immediately file for a trademark to claim ownership of the mark. Very often individuals tend to infringe on company and or trademark names if they see the potential in its success! Remember, the first to use the name in commerce is the priority trademark owner!
Here are a few trademark search tips I recommend when starting a business and choosing a company name.
1. Do a preliminary search on Google to ensure that a trademark right has not been claimed in the company’s business name;
2. A preliminary search on Google will cost $0. However, Google will not find viable and valid trademark rights of companies that are not on the internet or do not have active advertising and marketing campaigns. To fully ensure your company is not infringing another trademark owner’s rights, a more comprehensive search can be done.
3. Hire a trademark attorney to perform a comprehensive search. A comprehensive search will include:
* A search of the USPTO database, all 50 states trademark databases, company names that have incorporated with the state, trade names, the Copyright Office database, and the internet.
* If you plan to sell your product or service in another country, you can also obtain an international search.
* The cost of a comprehensive search for a name only starts at $550.00. However a search performed for a logo and name, starts at $950.00. International Searches do require much larger fees.
There are several companies that perform comprehensive searches. Here are a few:
CT Corsearch.
CompuMark
4 Trademark.com
These companies gather the information but do not analyze it or ensure your trademark is not infringing. A trademark attorney can analyze the contents of the search and give you a legal opinion regarding the availability of your mark.
Sunday, February 21, 2010
Threat of Trademark Infringement?
Hello:
Recently, I have been receiving inquiries regarding threats of trademark infringement. Threats of trademark infringement include:
1. Written or verbal communication by an entity or individual expressing their intent to use a trademark owner's trademark without their permission,
2. Written or verbal communication of an infringer's intent to register or claim ownership of an owner's trademark with the USPTO.
These threats are usually made when the infringer realizes that the trademark owner is using the trademark and has built up a goodwill. However, the trademark owner has not "officially" submitted an application for registration with the USPTO or the state in which the trademark owner is located.
If you are a trademark owner and receive threats of trademark infringement, take the following steps.
1. Hire a trademark attorney to draft a cease and desist letter to the infringer. However, a cease and desist letter is only effective if the infringer has already started to use the trademark.
2. Check the USPTO's database to determine if the infringer has filed an intent to use or an application based on use claiming your trademark.
3. If the infringer has filed an application for your trademark, hire an attorney to file an Opposition to the registration of the trademark with the USPTO.
4. Immediately submit an application for trademark registration with the USPTO. An application based on continuous use can be filed if you have been actively using the trademark in interstate commerce (offering a product or service to the public).
Remember, although a trademark owner may not have obtained federal registration of the trademark, a trademark owner still has priority to use the trademark in their region and natural area of expansion. The USPTO will consider this evidence when granting trademark registration.
I hope this article was helpful. Please contact me via email at lgivens@phillipsgivenslaw.com if you have further questions.
Recently, I have been receiving inquiries regarding threats of trademark infringement. Threats of trademark infringement include:
1. Written or verbal communication by an entity or individual expressing their intent to use a trademark owner's trademark without their permission,
2. Written or verbal communication of an infringer's intent to register or claim ownership of an owner's trademark with the USPTO.
These threats are usually made when the infringer realizes that the trademark owner is using the trademark and has built up a goodwill. However, the trademark owner has not "officially" submitted an application for registration with the USPTO or the state in which the trademark owner is located.
If you are a trademark owner and receive threats of trademark infringement, take the following steps.
1. Hire a trademark attorney to draft a cease and desist letter to the infringer. However, a cease and desist letter is only effective if the infringer has already started to use the trademark.
2. Check the USPTO's database to determine if the infringer has filed an intent to use or an application based on use claiming your trademark.
3. If the infringer has filed an application for your trademark, hire an attorney to file an Opposition to the registration of the trademark with the USPTO.
4. Immediately submit an application for trademark registration with the USPTO. An application based on continuous use can be filed if you have been actively using the trademark in interstate commerce (offering a product or service to the public).
Remember, although a trademark owner may not have obtained federal registration of the trademark, a trademark owner still has priority to use the trademark in their region and natural area of expansion. The USPTO will consider this evidence when granting trademark registration.
I hope this article was helpful. Please contact me via email at lgivens@phillipsgivenslaw.com if you have further questions.
Monday, February 1, 2010
6 Key Points Every Website Privacy Policy Should Contain
Every Social Networking Site, Blog, Website, etc. should have a Privacy Policy. A Privacy Policy can minimize liability for a site owner. For example, it can reduce Invasion of Privacy Claims. When a site is very thorough and transparent regarding whether user's personal information is gathered; how the information is gathered; and whether the site is using third-party applications to get this information, an Invasion of Privacy Claim is severely diminished. An Invasion of Privacy Claim occurs when the site is doing any of the above actions without disclosing these actions to the site user.
In addition, a Privacy Policy also protects users of the website. It gives users information on whether their personal information is being collected and how it is being used. It is then the choice of the site user to further engage or use the site.
When implementing a Privacy Policy, it should contain the following key points:
1. What type of personal information is collected?
2. What type of technology is used to collect information? How the website will use the information collected?
3. Who will receive the personal information collected?
4. Specific measures in place to protect personal information.
5. If the user voluntarily shares their personal information to the public, then their is no expectation of privacy.
6. How one can opt out of their personal information being gathered and/or shared with third parties.
When drafting a Privacy Policy, I recommend hiring a New Media Attorney. Although there are numerous form Privacy Policies on the internet, only a custom privacy policy can specifically address your site's technology and whether you are gathering information and how. Also a custom privacy policy can address whether you are sharing user information with third parties and identify each third party.
Remember one of the keys to running any business whether on the internet or brick and mortar is to minimize liability. Therefore having a Privacy Policy is good business sense.
In addition, a Privacy Policy also protects users of the website. It gives users information on whether their personal information is being collected and how it is being used. It is then the choice of the site user to further engage or use the site.
When implementing a Privacy Policy, it should contain the following key points:
1. What type of personal information is collected?
2. What type of technology is used to collect information? How the website will use the information collected?
3. Who will receive the personal information collected?
4. Specific measures in place to protect personal information.
5. If the user voluntarily shares their personal information to the public, then their is no expectation of privacy.
6. How one can opt out of their personal information being gathered and/or shared with third parties.
When drafting a Privacy Policy, I recommend hiring a New Media Attorney. Although there are numerous form Privacy Policies on the internet, only a custom privacy policy can specifically address your site's technology and whether you are gathering information and how. Also a custom privacy policy can address whether you are sharing user information with third parties and identify each third party.
Remember one of the keys to running any business whether on the internet or brick and mortar is to minimize liability. Therefore having a Privacy Policy is good business sense.
Wednesday, January 27, 2010
Amazing News! Blogher 2010!
Hello!
I hope your life is absolutely wonderful!
I have some AMAZING news to share! I was invited to speak at the 2010 Blogher Conference in New York, August 6-7. Yeah!
I will speak on a panel entitled "Mastering Intellectual Property Law." Specifically, I will discuss intellectual property law, registering and protecting a trademark, copyright infringement, defamation, libel and slander.
This blog has afforded me amazing speaking and writing opportunities. It has been very good to me. I have found that individuals are really interested and have a thirst for information on how to protect their intellectual property in Social Media platforms.
When I started this blog in 2008, I thought to myself it would be great if I could share this information with bloggers on a larger platform. Now I have that opportunity!
I just want to say thank you to everyone who has read this blog, commented and supported it. It has been a tremendous blessing to me and I hope to you as well.
I hope your life is absolutely wonderful!
I have some AMAZING news to share! I was invited to speak at the 2010 Blogher Conference in New York, August 6-7. Yeah!
I will speak on a panel entitled "Mastering Intellectual Property Law." Specifically, I will discuss intellectual property law, registering and protecting a trademark, copyright infringement, defamation, libel and slander.
This blog has afforded me amazing speaking and writing opportunities. It has been very good to me. I have found that individuals are really interested and have a thirst for information on how to protect their intellectual property in Social Media platforms.
When I started this blog in 2008, I thought to myself it would be great if I could share this information with bloggers on a larger platform. Now I have that opportunity!
I just want to say thank you to everyone who has read this blog, commented and supported it. It has been a tremendous blessing to me and I hope to you as well.
Monday, January 25, 2010
Security and Privacy Issues with Google Wave
Hello
By now everyone has heard the buzz about Google's newest product, Google Wave. Google Wave is an online tool that lets users instantaneously communicate and share information. Any user of the Wave can reply anywhere in the message, edit the content and add participants at any point in the Wave. The Wave can also be played back to review the Wave's content.
This technology sounds pretty cool. However, there are some privacy and security concerns regarding the use of Google Wave. The following are two features of Google Wave that can potentially lead to privacy and security risks for a company.
1. Any member can add someone else to the Wave without the other member's permission. This is a serious security risk. If members of the Wave are discussing trade secrets, or confidential information, an unauthorized person can be added and have access to that information.
2. A user can load gadgets or other third-party applications to the Wave and these gadgets can have access to other participants information.
When protecting confidential or trade secrets, confidential information is only 'secret' if appropriate measures are taken to protect confidential information. This includes restricting access to confidential or company secrets to a select few individuals. If confidential or secret information is exchanged on Google Wave, this information can be compromised. The ability to add individuals to the Wave without prior approval or restrictions is a serious security risk for any business.
In addition, the ability to add third party applications or gadgets to the Wave without prior verification or approval from the administrator of the Wave presents another set of security issues. These third party gadgets can have malicious code that will not become apparent until the gadget is added.
Google Wave is a neat tool for collaborative projects. However, if a group of individuals are working on highly confidential or top secret projects, I do not recommend using Google Wave as a collaborative tool. The potential security risks are just too great.
I welcome your thoughts!
By now everyone has heard the buzz about Google's newest product, Google Wave. Google Wave is an online tool that lets users instantaneously communicate and share information. Any user of the Wave can reply anywhere in the message, edit the content and add participants at any point in the Wave. The Wave can also be played back to review the Wave's content.
This technology sounds pretty cool. However, there are some privacy and security concerns regarding the use of Google Wave. The following are two features of Google Wave that can potentially lead to privacy and security risks for a company.
1. Any member can add someone else to the Wave without the other member's permission. This is a serious security risk. If members of the Wave are discussing trade secrets, or confidential information, an unauthorized person can be added and have access to that information.
2. A user can load gadgets or other third-party applications to the Wave and these gadgets can have access to other participants information.
When protecting confidential or trade secrets, confidential information is only 'secret' if appropriate measures are taken to protect confidential information. This includes restricting access to confidential or company secrets to a select few individuals. If confidential or secret information is exchanged on Google Wave, this information can be compromised. The ability to add individuals to the Wave without prior approval or restrictions is a serious security risk for any business.
In addition, the ability to add third party applications or gadgets to the Wave without prior verification or approval from the administrator of the Wave presents another set of security issues. These third party gadgets can have malicious code that will not become apparent until the gadget is added.
Google Wave is a neat tool for collaborative projects. However, if a group of individuals are working on highly confidential or top secret projects, I do not recommend using Google Wave as a collaborative tool. The potential security risks are just too great.
I welcome your thoughts!
Monday, January 18, 2010
Universities Aggressively Policing Their Trademarks.
Hello:
Universities are cracking down on individuals who sell their team logos, names, or any gear associated with their teams without a proper license. The University of Cincinnati recently enforced their trademark rights by filing cease and desist actions against several retailers, boosters, and students selling unauthorized merchandise. The cease and desist letters demanded immediate compliance as well as return of any profits or merchandise to the university.
The University of Cincinnati will also join other Universities in pursuing trademark infringement litigation against several national resellers who refuse to stop selling their merchandise without a license. Specifically, the Universities are concerned with lost licensing revenue; selling of inconsistent trademarks between the Universities and resellers; and brand protection.
The Universities are doing the right thing. As I have previously discussed, if a trademark owner does not protect or police their trademark or brand, the results are:
1. lost of trademark rights;
2. loss of licensing revenue; and
3. brand dilution.
Remember when pursing a trademark infringement claim, the courts will examine whether the trademark owner did its duty in protecting its trademark. If a trademark owner it too lax in protecting their brand, the court may consider the trademark too weak.
I welcome your thoughts!
Universities are cracking down on individuals who sell their team logos, names, or any gear associated with their teams without a proper license. The University of Cincinnati recently enforced their trademark rights by filing cease and desist actions against several retailers, boosters, and students selling unauthorized merchandise. The cease and desist letters demanded immediate compliance as well as return of any profits or merchandise to the university.
The University of Cincinnati will also join other Universities in pursuing trademark infringement litigation against several national resellers who refuse to stop selling their merchandise without a license. Specifically, the Universities are concerned with lost licensing revenue; selling of inconsistent trademarks between the Universities and resellers; and brand protection.
The Universities are doing the right thing. As I have previously discussed, if a trademark owner does not protect or police their trademark or brand, the results are:
1. lost of trademark rights;
2. loss of licensing revenue; and
3. brand dilution.
Remember when pursing a trademark infringement claim, the courts will examine whether the trademark owner did its duty in protecting its trademark. If a trademark owner it too lax in protecting their brand, the court may consider the trademark too weak.
I welcome your thoughts!
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