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.
Sunday, February 21, 2010
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!
Monday, November 23, 2009
Right to Publicity? When Can a Celebrity or Public Figure Sue?
Hello:
It has been a while since I posted on this blog. I have been extremely busy working, writing, and speaking on Intellectual Property issues in New Media. No excuse for neglecting this space, but I hope to post here more often.
I have been writing quite a few articles for Black Web 2.0 and recently I wrote an article on the Right to Privacy and Right to Publicity Law. Specifically, I discussed how this law affects bloggers who feature and write about celebrities. Below is the article in full text. Also, please visit www.blackweb20.com to see more articles I have written about legal issues in new media.
50 Cent Sues WorldStarHipHop For Unlawfully Using His Image. Bloggers Take Note!
Rapper 50 Cent is suing the popular website WorldStarHipHop.com for using his image/likeness without his permission. Basically, the website used the rapper’s photo on its home page…like a banner. 50 cent claims the site’s use of his image resulted in increased traffic for the site and the public perception that 50 cent was affiliated with site due to his image prominently placed on WorldStarHipHop.com’s home page.
Do blogs, websites, or online magazines have to get permission to use every celebrity’s image or likeness before posting images of that celebrity? Well it depends on for what purpose the site uses the celebrity’s image.
The use of one’s image or likeness is covered under the Right to Publicity law. This law drives from the Right to Privacy. There are four basic Rights to Privacy:
1. Protection from unreasonable intrusion upon the seclusion of another. For example a home or a car,
2. Protection from appropriation of a person’s name or likeness (Right to Publicity). For example using a person’s name or image on a product or service without their permission,
3. Protection from publication of private facts. For example, income tax data, family quarrels, medical treatment, school records, etc.,
4. Protection from publication of information that places a person in a false light.
Prosser, Restatement 2nd of Torts.
The Right to Publicity is triggered where commercial speech is involved, i.e, when a company has used a celebrity’s “name, likeness, or voice” in connection with a product, thereby creating a false and misleading impression that the celebrity is endorsing the product. See, e.g., Eastwood v. Super. Ct., 149 Cal. App. 3d 409, 417 (1983).
In 50 cent case, he claims WorldStarHipHop.com used his image like a banner ad, therefore created the false impression that he was affiliated with the site. The use of his image resulted in increased traffic to the site and therefore increased ad dollars. If 50 cents claims are proven to be true, WorldStarHipHop.com will have to compensate 50 cents for using his image to endorse their product, i.e., their website.
But there are instances when a website can use a celebrity’s image without their permission. Under the First Amendment exception to the Right of Publicity rule, if the image is used in connection with reporting a newsworthy article that is a matter of public interest, then the site does not have to get the celebrity’s permission to use their image or likeness. Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 409 (2001); see also Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1182-83 (C.D. Cal. 2002).
For example, when a gossip blog reports breaking news that X celebrity was in an altercation or was caught drinking and driving, use of the celebrity’s image without their permission is permissible. However, if a gossip blog simply has images of celebrities on its site as a banner or as part of the site’s graphics, use of the celebrity’s image is not permissible without first obtaining the permission of the celebrity. In this instance, the site is using the celebrity’s image to promote their blog or site.
Bloggers and websites that report on celebrity news should take note and be very careful when using celebrity images. If the use of the celebrity’s image is not associated with breaking news or “newsworthy”, ALWAYS get permission.
It has been a while since I posted on this blog. I have been extremely busy working, writing, and speaking on Intellectual Property issues in New Media. No excuse for neglecting this space, but I hope to post here more often.
I have been writing quite a few articles for Black Web 2.0 and recently I wrote an article on the Right to Privacy and Right to Publicity Law. Specifically, I discussed how this law affects bloggers who feature and write about celebrities. Below is the article in full text. Also, please visit www.blackweb20.com to see more articles I have written about legal issues in new media.
50 Cent Sues WorldStarHipHop For Unlawfully Using His Image. Bloggers Take Note!
Rapper 50 Cent is suing the popular website WorldStarHipHop.com for using his image/likeness without his permission. Basically, the website used the rapper’s photo on its home page…like a banner. 50 cent claims the site’s use of his image resulted in increased traffic for the site and the public perception that 50 cent was affiliated with site due to his image prominently placed on WorldStarHipHop.com’s home page.
Do blogs, websites, or online magazines have to get permission to use every celebrity’s image or likeness before posting images of that celebrity? Well it depends on for what purpose the site uses the celebrity’s image.
The use of one’s image or likeness is covered under the Right to Publicity law. This law drives from the Right to Privacy. There are four basic Rights to Privacy:
1. Protection from unreasonable intrusion upon the seclusion of another. For example a home or a car,
2. Protection from appropriation of a person’s name or likeness (Right to Publicity). For example using a person’s name or image on a product or service without their permission,
3. Protection from publication of private facts. For example, income tax data, family quarrels, medical treatment, school records, etc.,
4. Protection from publication of information that places a person in a false light.
Prosser, Restatement 2nd of Torts.
The Right to Publicity is triggered where commercial speech is involved, i.e, when a company has used a celebrity’s “name, likeness, or voice” in connection with a product, thereby creating a false and misleading impression that the celebrity is endorsing the product. See, e.g., Eastwood v. Super. Ct., 149 Cal. App. 3d 409, 417 (1983).
In 50 cent case, he claims WorldStarHipHop.com used his image like a banner ad, therefore created the false impression that he was affiliated with the site. The use of his image resulted in increased traffic to the site and therefore increased ad dollars. If 50 cents claims are proven to be true, WorldStarHipHop.com will have to compensate 50 cents for using his image to endorse their product, i.e., their website.
But there are instances when a website can use a celebrity’s image without their permission. Under the First Amendment exception to the Right of Publicity rule, if the image is used in connection with reporting a newsworthy article that is a matter of public interest, then the site does not have to get the celebrity’s permission to use their image or likeness. Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 409 (2001); see also Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1182-83 (C.D. Cal. 2002).
For example, when a gossip blog reports breaking news that X celebrity was in an altercation or was caught drinking and driving, use of the celebrity’s image without their permission is permissible. However, if a gossip blog simply has images of celebrities on its site as a banner or as part of the site’s graphics, use of the celebrity’s image is not permissible without first obtaining the permission of the celebrity. In this instance, the site is using the celebrity’s image to promote their blog or site.
Bloggers and websites that report on celebrity news should take note and be very careful when using celebrity images. If the use of the celebrity’s image is not associated with breaking news or “newsworthy”, ALWAYS get permission.
Tuesday, October 13, 2009
Update: New FTC Rules on Blogger Product Endorsements, Effective December 1
Hello!
Previously I wrote a post about the "proposed" Federal Trade Commission Rules on Blogger Product Endorsements. Basically, the FTC was considering whether to require bloggers to disclose any financial relationship between themselves and brands whom products they endorse.
Well those proposed rules are now a reality. The FTC has established new rules on Blogger Product endorsement and they are as follows:
1. Bloggers must disclose if they receive a financial benefit when writing a post about a product or service. FTC views this transaction as an endorsement of the product or service.
2. Disclosure can be a banner or part of the review.
3. Diclosure must be clear and direct.
4. If there is no disclosure, FTC may send a Cease and Desist. If Cease and Desist is violated or ignored, then blogger can receive a 11K fine.
5. Rules go into effect December 1.
Although, the rules have been established, the FTC has admitted that they will not actively pursue bloggers. Most likely, the FTC will only pursue clear rampant violations and those will most likely be the result of a tip from a concerned consumer. Hopefully the new rules will encourage bloggers to be as transparent as possible regarding product reviews. Transparency allows consumers to make informed buying decisions.
I welcome your feedback!
Previously I wrote a post about the "proposed" Federal Trade Commission Rules on Blogger Product Endorsements. Basically, the FTC was considering whether to require bloggers to disclose any financial relationship between themselves and brands whom products they endorse.
Well those proposed rules are now a reality. The FTC has established new rules on Blogger Product endorsement and they are as follows:
1. Bloggers must disclose if they receive a financial benefit when writing a post about a product or service. FTC views this transaction as an endorsement of the product or service.
2. Disclosure can be a banner or part of the review.
3. Diclosure must be clear and direct.
4. If there is no disclosure, FTC may send a Cease and Desist. If Cease and Desist is violated or ignored, then blogger can receive a 11K fine.
5. Rules go into effect December 1.
Although, the rules have been established, the FTC has admitted that they will not actively pursue bloggers. Most likely, the FTC will only pursue clear rampant violations and those will most likely be the result of a tip from a concerned consumer. Hopefully the new rules will encourage bloggers to be as transparent as possible regarding product reviews. Transparency allows consumers to make informed buying decisions.
I welcome your feedback!
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