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The PunkLawyer Blog Business Law Archives - The PunkLawyer Blog

Archive for the ‘Business Law’ Category

.Sucks? How about .no?

Thursday, April 2nd, 2015

The new gTLDs, or generic top level domains, have been in the news a lot lately.  Taylor Swift made big news when she made a smart strategic move and purchased a number of domains related to her name and brand with the new gTLDs .adult, and .porn.  While this initially may seem like a publicity stunt, it’s actually a smart move on her part to protect her brand, and one that brand owners need to take note of in terms of planning their domain strategy.  With the rollout of the new gTLDs, there are more options for what a web address says to the right of the dot, and brand owners are concerned about the potential options that could make their brand look bad.  This is particularly true in the case of .sucks, a domain that I have been monitoring for some time.   Just last week, the IP Constituency of ICANN, the group that represents brand owners at the international body that governs the internet, sent a letter urging ICANN to stop the rollout of the .sucks domain. 

So how can brand owners protect themselves in this new landscape of gTLDs?  A good place to start is setting up a monitoring service to monitor your brands and alert you to marks and domains that may be similar to yours so that you can take appropriate actions.  Another good step to take is to register your brands with the Trademark Clearinghouse, which will notify registered trademark holders of new gTLDs that may be using their marks, and offers them the chance to object to the registration of such domains.  If nothing else, setting up a Google Alert can be a good, inexpensive way to monitor mentions of our mark and news stories related to the brand online.  This space is likely to continue to generate interesting news stories, and I’ll do my best to cover them here.  These services are also among those that Scelsi Entertainment and New Media Law offers, please visit our website for more information and to contact me.

Do You Hear What I Hear?

Monday, March 2nd, 2015

Have you ever wondered about how to register a sound as a trademark? Check out this webinar that I am moderating this Thursday that will address this very topic. It should be a fun program, full of examples of sounds that you may not have realized are registered as trademarks. Find out more information here: http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=180150294.

Resolve to Be Smart About Trademarks in 2015

Friday, January 9th, 2015

Happy new year! We’re already 9 days into 2015, and from an IP and entertainment law standpoint, it looks like this year will be another one jam packed with interesting legal and business issues. I definitely think that these issues will include those related to trademarks. As such, I wanted to take this opportunity to talk about trademarks and where they should fall in your business strategy. Too often, I hear brand owners talk about the stress and expense of receiving a cease and desist letter from a trademark owner, as well as the threat of a lawsuit. It pains me to hear these stories, for while there is no 100% guarantee against a trademark infringement lawsuit, there are a number of simple steps that business owners can take to greatly reduce the likelihood of a claim. Ideally, you would hire an attorney to help incorporate the business, as well as check on the availability of the intended business name. Too often, business owners don’t take this second step, and this is where you can run into trouble.

Just look at this past season of Silicon Valley, and the trials and tribulations of the Pied Piper app startup. Spoiler alert if you haven’t seen the show yet: the founder, Richard, runs into trademark trouble, and ends up paying for the right to use the name for his software startup from a irrigation company. It’s important to note that the two uses of the name could have coexisted, as the companies are in two different classes of goods and services, but that’s a post for another day. The larger point is that a simple Google search for the proposed company name, as well as perhaps a search of the USPTO trademark database, would likely have produced results showing the potentially conflicting name, and allowed the founder to plan accordingly.

Have you ever wondered why bands change their names after signing with a major record label, or why so many technology companies have weird names? It’s usually a matter of trademark law, or that the domain for that name isn’t available. However, if you’re proactive in planning your business, you can greatly reduce your chances of getting into trademark trouble. Your best bet is to consult an attorney who practices trademark law. He or she will likely recommend doing a more extensive search, which would include not only searching the internet and USPTO database, but also trademark registrations in individual states. Once the attorney receives the results, he or she can provide you with an opinion as to whether you should or should not pursue registering the company name or logo for federal trademark registration with the USPTO. I know that people are always trying to save money when starting a business, but with business names and trademarks, it’s definitely a situation where an ounce of prevention is worth a pound of cure. Litigation can cost a lot more than the legal fees for an attorney to help you determine if the name is available, so save yourself the headache and budget for it as part of your business plan. So if you’re starting a business this year, resolve to be proactive and make sure that the business or product name that you plan to use is available.

Top 10 Tech Legal Trends to Watch for 2015- Part 1

Tuesday, December 30th, 2014

2014 is rapidly drawing to a close, and it’s time to look to what the new year will likely hold in terms of trends in technology and entertainment law. Here’s the first installment of issues that I think will be trending in these areas of law, or in some cases will continue to be trends in 2015:

1. Privacy.

From the data breaches at Target, Home Depot and other major retailers this year to the current Sony Pictures hacking scandal, data privacy will continue to be a big issue for companies and consumers in 2015. Look for lawmakers to try to find solutions in both federal and state law, and for consumers to continue to find better ways to protect their data.

2. gTLDs.

Speaking of hacking, it was revealed this week that the Internet Company for Assigned Names and Numbers itself had been a victim to the efforts of hackers. As you may have seen this year, a major issue for brand owners was the roll out of the new generic top level domain (gTLD) program. While recent years have involved a lot of crystal ball gazing to see what the future might hold as these new domains are introduced, this year actually saw many of them being introduced. In addition, the disputes over domains that were in contention by more than one party have largely been resolved through auctions, so there will be more new gTLDs than ever being introduced. Though it will be interesting to see how the .press and other domains are used by businesses and brand owners, I think I’m most anxious to see what results from the introduction of my favorite new gTLD, which is .sucks. .enjoy!

3. Projects using real life people

Among the many issues related to the ongoing international crisis that is the Sony Pictures hacking situation is that of the potential consequences of using the identities or personas of real people in fictional works. Right of publicity issues have taken on greater importance in recent years, and 2014 was certainly no exception, with the ramifications of former UCLA basketball player Ed O’Bannon’s antitrust lawsuit against the NCAA for its use of not only his likeness in television broadcasts and video games, but those of potentially thousands of other NCAA athletes looming large on the future of the organization. While these works can be defended on the grounds of parody or fair use, it’s important to keep in mind that if you are at a point where you are discussing these defenses, it likely means you are trying to ward off a lawsuit, or have already been threatened with one. While these situations are typically fact and personality specific as to the potential consequences, it is definitely advised that creators seek the advice of counsel before pursuing the use of the names, likenesses, voices or other identifying characteristics of real life people in commercial projects.

4. CalOPPA

Speaking of real life people, like many states, California regulators have been increasingly concerned about the privacy of its residents online. California implemented the law known as the California Online Privacy Protection Act, or CalOPPA in 2003, and has been making headlines in its efforts to enforce the law, which among other things requires app and website operators to conspicuously post privacy policies on apps and websites. While I understand that design is an important aspect of the work that app and web designers do, I would recommend that designers start finding ways to make the conspicuous of privacy policies and terms of service part of the design plan as a way to keep themselves and their clients in compliance with CalOPPPA and other regulations. In addition, the recent amendments to CalOPPA that are going into effect on January 1, 2015, call for website operators to implement a ‘delete button’ feature that will require them to implement mechanisms that would allow minors to request that their information be deleted from the site, as well as provide minors with notice of this ability to delete online content and instructions on how to do so. Yet another amendment prohibits operators from marketing certain categories of products or services to minors online. Amendments like these highlight the importance of treating a website’s privacy policy and terms of service as living documents that must be tended to and updated as laws change.

5. Kids’ privacy

And to round out the top 5, we’re back to privacy. While it may seem like splitting hairs to some, to parents and regulators, the privacy of children in the internet is a whole separate area of concern. In addition to the changes coming as part of CalOPPA, it is likely that the Federal Trade Commission (FTC) will continue to monitor apps and websites for COPPA compliance, as well as amend the law to better protect children online. It is also likely that companies like Facebook will continue to lobby for the loosening of COPPA and similar regulations in favor of letting companies develop their own mechanisms for protecting children online. Recent FTC settlements with TinyCo and Yelp over COPPA violations illuminated areas of concern for the agency, which primarily focused on the collection and handling of data gathered by apps targeted at children. In the case of Yelp, the FTC noted that while the site had the proper COPPA mechanisms in place on its full website, it was the lack of such a mechanism on the site’s mobile app that brought the attention of the agency.

What other issues do you think will be big in 2015? We’ll be listing the rest of the top 10 tomorrow, and as always welcome your insights.

When Should I Consider Trademarks?

Tuesday, March 11th, 2014

I spoke this past weekend at Florida DrupalCamp on intellectual property law and compliance issues for web developers. It was a great session, with lots of interesting questions from those in attendance, and I hope to incorporate many of them into future posts. I think a good place to start is a question that I am asked a lot by aspiring entrepreneurs, which is “when should I consider registering for a trademark in the startup process?” My answer to this is that it should be considered as early on in the process as possible. Of the many steps that it can take to start and grow a business, sometimes the process of considering whether a company or product name is capable of being registered for a trademark, as well as registering such a name, can tend to end up on the back burner. This can be a costly tactical error for a small business, as proceeding without the use of a company or product name without an idea of whether it could potentially generate a trademark infringement claim can not only result in litigation from another trademark owner, but also mean that the company or product may have to change its name and lose any accumulated recognition in the minds of consumers.

While of course I always advise that entrepreneurs consult with an attorney to help them navigate the trademark search and registration process, there are also simple steps that people can take to get an idea of whether a name is available for use for a company or product. One way is to perform an internet search for that name and the related industry in which it would be used to see if there are any results that could potentially overlap with what you have in mind. The related industry is important, as trademark registrations with the United States Patent and Trademark Office (USPTO) are issued by the class of goods or services for which the mark will be used. This is why you will see in some instances the same name being used for different classes of goods or services, such as Delta Airlines and Delta Faucets. Now an internet search may not give you all the information you would need about whether a name is available for use, or is already registered as a trademark. This is why it is also a good idea to run a search of the trademark registrations with the USPTO on its website to see if there are any names or logos that could conflict with the name you are looking to use in the search results. Of course, the next logical question that may come to mind is if I can do these searches myself, why would I need to hire an attorney? It’s a good question, and the answer is that an attorney with knowledge of trademark law can assist you in performing a fuller search of whether a name or logo is capable of being registered with the USPTO. Why does this matter? As trademarks are not only a matter of federal law, but also state law, there can be registrations or uses of the name in question that may not show up in an internet search or search of the federal database that may show up in a fuller knock out search. Such a search would also include domain name registrations, and if you have ever wondered why some tech companies have such strange names, it is often a result of trying to find an available domain name. Further, an attorney can advise you as to the potential risk that similar or matching results may present, and help a company choose another name if the risk is too great.

No matter which route you opt to take in terms of trying to determine if a name is available for use, and ultimately for registration as a trademark, the point is that these discussions need to take place early on in the startup process. Think about it- if you’re going to spend your time, energy, and money on developing a new product or company, don’t you want to do so wisely? Litigation is expensive and time consuming, so if doing some basic searches can help you head off potential problems, that is time (and money) well spent.

ccTLDs, gTLDS, and Making Sense of ICANN’s Alphabet Soup

Saturday, July 24th, 2010

A new Internet land rush started this week, as the .co extension became available.  This extension is what is called a ccTLD, or a country code top level domain, for the country of Colombia.  It has become popular with businesses and corporations, as well as with trademark owners with .co in their names.  Other popular ccTLDs that have had a similar mainstream appeal have been .tv for the country of Tuvalu, and .me for Montegnegro.  The .co domains went on sale Tuesday through registrars such as GoDaddy, and many of them have been snapped up.  This is only the beginning, as the Internet Corporation for the Assignment of Names and Numbers, or ICANN, the organization charged with regulating domain names and other addresses on the Internet, is preparing to make available generic top level domains, or gTLDs in the near future.   ICANN also approved the top level domain .xxx earlier this year for adult web sites, which will go on sale next year.

So how does this affect you and your entertainment enterprise?  You’re probably familiar with the existing domain name extensions, such as .com, .net, and the need to register the domain name of your band or project to protect your space on the Internet.  So let’s say you registered the domain yourbandname.com, and have set up your web page on that domain.  You may have registered the misspellings of the domain, or other top level domains to cover the bases.  Well when the new gTLDs become available, you could wake up and find someone has registered the domain dot.yourbandname, or even yourbandname.sucks.  It is a real possibility that trademark owners and brand managers are concerned about, and several rounds of rules and dispute procedures have been released for public comment and revised by ICANN.  For now, the best approach to this is to keep an eye on what domains are made available and register domains relevant to your brand.

The .sucks and related domains are a real concern for trademark owners and brand managers, as well as free speech advocates.  Look for a future post on these gripe sites and how they interact with new gTLDs, I’m actually fascinated by the intersection of this area of the Internet and the law after looking into it.  In some instances, when trademark owners have gone after operators of domains disparaging their company, such as verizonsucks.com, it has only served to generate more gripe sites and attention to them.  It’s a similar problem for companies who end up with parody accounts on Twitter, such as  @BPGlobalPR that have popped up and certainly not operated by the actual company.  It’s not an immediate concern, as the process of applying to operate a top level domain to sell registrations with the extension .sucks has to be approved by ICANN and costs $45,000, but stranger things have happened on the Internet.  And if it was approved, there are people out there who would find the relatively low cost of registering a .sucks domain to be worth it to express their distaste for a company or product.  Just as an example, I love my Oakley eyeglass frames, but there’s a guy with a page out there devoted to getting Oakley to change how the end of the earpiece is shaped because he poked himself in the eye with the end of his one day.

Managing your brand online is important, and requires constant monitoring, including the opening of the new top level domains, as well as social media sites.  Setting up a Google alert for your brand name isn’t a bad idea to help with this process.  The decision of how to proceed if someone is using your name, or mark is one that differs depending on the strength of the mark and how vigorously you want to be in protecting it.  Look for more tips in the future.  I’d be interested in hearing from you on these issues as well.

Drunken Bus Drivers and Stolen Trailers, Oh My!

Wednesday, June 30th, 2010

So summer is here in full force, and with summer comes Warped Tour, which kicked off this weekend in Ventura, California.  Apparently it has been a bit of a wild ride for some of the artists so far.  Dying Scene reported that Sum 41 had a scary trip back from the show after discovering that their bus driver apparently was drunk.  In a series of tweets, the band described the experience:

“We are alive. In ventura. Ready to rock out.” 3:18 PM Jun 27th via UberTwitter

“What an idiot! We could have been killed! Fuck this guy. Never working for us again!” 10:00 AM Jun 27th via UberTwitter

“No doubt we like to drink. Its well documented. But this fucking idiot did it while driving!” 9:58 AM Jun 27th via UberTwitter

“New bus driver came and met us at the side of the road…. He seems more sober.” 9:55 AM Jun 27th via UberTwitter

“Recap. Our bus driver ran off the road. He was drunk. Deryck tried to fight him” 9:50 AM Jun 27th via UberTwitter

“So our bus driver was drunk. We are at the side of the road. This tweet is not a joke. Trying to get to Ventura for warped tour”  9:32 AM Jun 27th via UberTwitter

The band has obviously fired the driver, glad no one was hurt in the incident.  This incident not only illustrates how dangerous drinking and driving is, but also how important it is to make sure whoever is driving you and your gear around is safe to do so.  This includes not only being sober, but also rested.  If you’re hiring someone to drive a tour bus, make sure they are properly licensed, and a background check might not be a bad idea.  This goes for whether you have a driver or not.  If you have a tour manager, he or she is responsible for making sure your transportation on the road goes smoothly, and should be held accountable for those duties.  Of course, flights get delayed, vehicles get stuck in traffic, sometimes there’s nothing anyone can do.  But it’s a good idea to discuss with a tour manager what your expectations are of him or her for the tour, and then put it in writing so everyone is clear from the start.  This will help matters if problems do occur down the road, pardon the pun.  And they can happen, like when King Khan and BBQ were arrested in Kentucky on drug charges, and their tour manager was charged with driving with a suspended license in addition to possession.  The arrest not only resulted in cancelled shows, but reportedly also put their work visas in jeopardy.   So be careful out there.

In other Warped news, it was tweeted today that the Bouncing Souls would not be playing today’s date in New Mexico as their trailer may have been stolen:

“Also please note: BMTH is not playing because Oli is in LA and The Bouncing Souls will also not be playing because their trailer is          missing.”  about 1 hour ago via Twittelator Jun 30

Old Shoe Records was advising via Twitter for people in Phoenix to look out for Bouncing Souls merchandise to hopefully catch the culprit:

“The Bouncing Souls trailer was stolen yesterday in Phoenix! Watch for excess Souls Cd’s and Vinyl lets catch these bastards.” @vanswarpedtourabout 1 hour ago via TweetDeck

I think it’s getting scary out there for touring bands.  As I previously posted, Protagonist recently had their gear stolen, and Alternative Press has reported on the seeming rash of thefts of gear and trailers from bands.   I discussed in a previous post some tips for keeping your gear safe on the road, but it seems to be getting harder to outsmart the crooks.  Above all, keep records of your gear with the make, model, serial numbers, and any identifying features.  Take pictures of it, as well as your vehicle.  Get insurance for both, and understand what is and is not covered in your policy. Keep a copy of your policy with you, as well as the number of your agent or company.  Make sure to always lock the vehicle/trailer.  Unfortunately, it seems lately that even if you do everything you can think of, it still won’t stop a determined thief with tools to cut through chains or locks.  If something does happen to your gear, get a police report, and if you have insurance call the company to start the claims process.  This isn’t meant to be an exhaustive list, and I’d like to hear from bands, venues, etc that have dealt with theft and may have tips.  Look for more on this topic in the future, as well as an update from Protagonist.  Check out their videos from their recording session with Stephen Egerton over at Punknews.