Wednesday, November 30, 2016

Updates to DMCA Agent Designation

Updates regarding the registration and designation of Digital Millennium Copyright Act (“DMCA”) Agents are set to take effect tomorrow, December 1, 2016.  While the changes are small, they are significant for maintaining proper DMCA protection.

As a refresher, the DMCA creates a Safe Harbor that limits the liability for service providers (i.e. most website owners) regarding copyright infringing content that users upload to the website.  Under the DMCA, service providers designate an Agent to receive and respond to copyright infringement take-down notices from individuals who believe their copyright rights are being infringed.  Originally, Agent designation had to be accomplished through physical paper filing and a hefty $105 fee. Now, the US Copyright Office is shifting gears to more cost effective, online designation.

Notable changes to DMCA Agent designation include:DMCA Agents can now be designated online in addition to the traditional paper method.

  1. The paper filing method will be phased out completely by the end of 2017.  It is important for those who currently have DMCA Agents on file to renew their agent designations online prior to December 31, 2017.
  2. The registration fee is now only $6 per designation – a $99 dollar decrease! This fee applies to renewals and amendments as well.
  3. Designations must be renewed every three years. Renewal is crucial, otherwise service providers risk exposure to liability.
  4. A specific individual no longer has to be named the DMCA Agent, instead an organizations (such as law firms like Traverse Legal) can be named as the DMCA Agent.

The Traverse Legal Attorneys serve as the DMCA Agent for several service providers and will be diligently updating our designations in the online system.  If you have questions about DMCA Agent designations, or need an Agent designated, contact Traverse Legal today.



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Tuesday, November 29, 2016

Terms of Use Terminology

Now that you are familiarized with Privacy Policy Fundamentals, it is time to consider some of the common clauses and terminology that are located within the Terms of Use.  The Terms of Use Agreement (aka: Terms of Service; Terms and Conditions) lays out the rules that website Users must follow when accessing the site, selects the governing law, and limits the liability of the website owner, among many other things.  Every website should have a Terms of Use in place, so it is important to understand the components contained in these agreements.

While it is good practice to draft the Terms of Use in “layman’s terms,” the agreements can still be difficult to digest.  Below is a high-level breakdown of fifteen common clauses and terminology that appear within Terms of Use Agreements:

  1. Owner – The first thing a Terms of Use should do is name the website’s owner (whether individual or corporate) so that Users know who the website belongs to.
  1. Modification – Next it is important to reserve the right for the website to modify the terms at any time.
  1. About the Website – This serves as a brief overview of how the website functions. What is the purpose of the website? What kind of services does the Website offer?  It is important for Users to understand what the website does in a nutshell.
  1. Warranties and Representations – You want the User to warrant (i.e. validate) that they are at least a certain age, typically no younger than 18. This protects the website owner from legal ramifications stemming from underage Users.
  1. Ownership of Website and License – Alerts the Users that the website owner has ownership (makes sense) of the website and associated content. Users are only granted a limited license to use the website for purposes stated in the Terms of Use.
  1. Account Creation, Payment, & Termination – Users need to know how to create and cancel their accounts on the website. Users also need to know how payments are processed and by who.  It is important to make clear that Users are solely responsible for keeping their account accurate and secure.
  1. User Generated Content (“UGC”) – This. Is. HUGE. If the website has any type of UGC, whether it is elaborate forums or simple reviews, there must be a UGC clause.  This clause indicates that Users own their UGC, but warrant that they will not upload any infringing (i.e. illegal) material.  It is also important for the website to be able to remove UGC at any time for any reason.
  1. Communications Decency Act – For liability purposes, websites do not want to be considered interactive computer service providers. If a User gets in trouble, the website wants to avoid getting in trouble too.
  1. Third Party Links & No Endorsement – Any links that go outside the website are not endorsed by the website in anyway.
  1. User Conduct – While the Terms of Use essentially centers upon User conduct, this is the clause that really spells everything out. Any activity (i.e. using a spider/scraper; threatening another user; transmitting illegal material; etc.) that the website does not want Users to undertake should be explicitly listed here.
  1. Disclaimer of Warranties & Limitation of Liability– “Disclaimers” foreclose responsibility and limit liability on behalf the website. These clauses include disclaimers that limit liability for any harm arising from the website, any errors or interruptions with the website’s services, and any damages that could result from liability, among others.
  1. Indemnification – To “indemnify” means to make compensation for incurred hurt, loss, or damage. This clause establishes that in the event of infringement, personal injury, or death that results from a User’s use of the website, the user will indemnify, or compensate, the website.
  1. Resolution of Dispute and Governing Law – This clause allows the website to select what state’s law governs the Terms of Use and where any legal proceedings will be held. This clause is particularly important to pay attention to because (1) the website owner wants to be able to control the forum state [don’t make the mistake of copying a Terms of Use, failing to update the state, and getting haled into a faraway court!] and (2) Users need to know how and where they can bring an action against the website.  Typically, website will elect for any grievances to be handled in arbitration, which is less laborious than litigation.
  1. Integration – You want to integrate your Terms of Use with your Privacy Policy so that they are both considered together.
  1. Notice – Users need a physical address and e-mail to contact the website regarding the Terms of Use.

Phew, Terms of Use certainly are lengthy!  Like mentioned above, this was just an (extremely) high level overview of Terms of Use terminology and clauses.  A complete Terms of Use has a more clauses and many more subtleties that need to be addressed according to the website’s specific needs.  This is best accomplished through a lawyer, so if you are interested having a Terms of Use drafted for your website, the Traverse Legal attorneys can assist through a reasonable flat-fee project.  Contact us today!



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Monday, November 28, 2016

Does My U.S. Patent Provide me Worldwide Patent Protection?

The rights granted in a U.S. patent only provide protection throughout the United States and have no effect in a foreign country or jurisdiction.  Specifically, a U.S. patent gives the patent owner the right to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States.  If an inventor intends to pursue patent protection in other countries or jurisdictions, the inventor must apply for a patent in each of these countries or regional patent offices.  Nearly every country and jurisdiction has its own patent laws and requires separate applications to be filed in those countries or jurisdictions.

 

Patents may be directly filed in foreign countries through foreign intellectual property offices or jurisdictions.  A directory of intellectual property offices may be found at the World Intellectual Property Office.  Alternatively, the Patent Cooperation Treaty (PCT) may be used as a process for seeking patent protection for an invention simultaneously in every country that is a member of the PCT.  The PCT is designed to streamline the filing process by making it easier and cheaper to file an “international patent application” in a large number of countries.

 

A Traverse Legal patent attorney can provide you with patent strategy recommendations based on your business and intellectual property goals.  Give us a call today at 866-936-7447 for a free consultation regarding your patent needs.

 



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Internet Defamation in Online Reviews

From Trademark Dispute to Peaceful Coexistence

Trademark disputes typically start with a trademark owner sending a cease and desist letter to the user of a mark the trademark owner believes infringes upon its rights.  Those trademark rights may be rooted in common law or based upon a trademark registration with, for example, the United States Patent and Trademark Office (USPTO).  Whether the demand letter comes from the trademark owner itself (typically, if a company, through its marketing department or General Counsel) or a trademark attorney on its behalf, the allegations and demands are typically as follows:

  1. We are the prior user of a distinctive trademark
  2. Your use of a confusingly similar mark on related goods/services creates a likelihood of consumer confusion (i.e. trademark infringement)
  3. We are asking that you cease and desist use of your mark because you are damaging our goodwill
  4. If you do not cease and desist use of your mark, we may take further action, such as filing a lawsuit for trademark infringement, unfair competition, etc.

The recipient of such a letter should consult with a trademark lawyer who can analyze the claim of trademark infringement, including the following:

  1. Whether the sender is indeed the prior user of the mark.  This becomes particularly important when dealing with unregistered, or common law, trademark rights since a situation may arise where the sender and recipient both have trademark rights in separate geographic locations.
  2. Whether the sender possesses a distinctive trademark.
  3. Whether there are any defenses available, such as fair use (including nominative fair use, non-trademark use, etc.).
  4. Whether there is a likelihood of consumer confusion, which requires careful analysis of the trademark infringement factors.
  5. Whether peaceful coexistence is possible and, if so, under what terms.

In my experience, trademark attorneys do not always spend enough time on item 5.  Instead, the traditional thought is that a trademark dispute must result in one party’s use and the other party’s cessation of use of a mark.  However, that is not always the case and, oftentimes, parties can agree to peacefully coexist.  In my experience, there is usually a triggering event for the sending of the cease and desist letter, which may ultimately be addressed without having to actually cease and desist (e.g. sender needs to register trademark with the USPTO but the recipient’s application has led to an initial refusal even though a likelihood of confusion may not be likely).  They may do so by modifying how the mark is displayed, on which goods/services it may be used, and even where such use is permitted. It is worth exploring whether a resolution is possible, and defining how it can be memorialized in a Trademark Co-Existence Agreement, Trademark Concurrent Use Agreement or a Trademark Consent Agreement (Note: each of these kinds of agreements have different purposes and effects, and you should discuss with your trademark attorney).

A trademark infringement lawsuit, and even a trademark opposition or trademark cancellation proceeding with the USPTO’s Trademark Trial and Appeals Board (TTAB), can be very resource intensive.  While, in some instances, such disputes are unavoidable and unresolvable, you should consider coexistence, especially where your trademark rights may not be as strong or your claim of infringement may not be obtainable.



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Thursday, November 17, 2016

Public Disclosures and Patentability

In the U.S., an inventor has 12 months from the date he or she first publicly discloses their idea or invention to file a U.S. patent application.  A public disclosure refers to a communication of an idea or invention without any confidentiality obligations, either written or oral.  Just a few examples of public disclosures include publications, presentations, trade shows, patent or trademark applications, seminars, press releases, and offers for sale.

 

If a public disclosure is made prior to filing a U.S. patent application, it is important to be aware of the content disclosed.  For example, abstracts or press releases that only provide a very general overview of an invention, may not actually be considered an enabling public disclosure that triggers the 12 month clock.  If an inventor publicly disclosed the invention more than 12 months before filing for a U.S. patent application, it may considered prior art and prevent the inventor from obtaining a patent.

 

In many foreign jurisdictions, any public disclosure of an invention by the inventor prior to filing a patent application may be very problematic since there is no grace period for disclosures in those jurisdictions.  As a result, any public disclosure of the invention prior to filing the patent application may be considered prior art.  Thus, filing a patent application before any public disclosure of the invention is typically the recommended approach.

 

If inventors do decide to disclose their invention (even partially) publicly prior to filing a patent application, a non-disclosure agreement should first be implemented with the party receiving the information.  Regardless, inventors should be cautions and understand the potential ramifications of making such disclosures.

 

Feel free to contact a Traverse Legal patent attorney to help you understand the patent process and draft carefully tailored non-disclosure agreements and patent applications.  Give us a call today at 866-936-7447 for a free consultation regarding your patent needs.



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Tuesday, November 15, 2016

Privacy Policy Fundamentals

You know those tediously long agreements linked at the bottom of websites that no one really reads? Well Guess What?! – Those agreements are extremely important! Any legally sound website should have both a Terms of Use and a Privacy Policy (collectively “Website Agreements”) to protect the website owner from liability stemming from use of the website.

Privacy Policies are designed to put website users on notice about the type of Personally Identifiable Information (“PII”) (i.e. information which can be used on its own or with other information to identify, contact, or locate a single person) that the website collects. Typically, PII includes things such as name, mailing address, e-mail address, IP address, and credit card information.

All Privacy Policies should at least include:

1. What PII is collected
2. How the PII is used
3. Where the PII is stored
4. Who the PII is shared with
5. When users can stop their PII from being collection
6. Compliance with California Law (which has an unique law that allows Cali users to request info about who/where their PII was shared)
7. Website contact information

These seven items are very high-level requirements that any solid Privacy Policy should include. How the details are filled in is based upon the particular aspects of your business and website model. If you are in need of a Privacy Policy for your website, the Attorneys at Traverse Legal can help.



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Monday, November 14, 2016

Changing jobs with a Non-Compete? You need an Attorney Opinion

You need to change jobs but you have a non-compete provision in your employment agreement.  Now what?

Don’t assume the non-compete is valid.  The validity of a non-compete agreement depends on many factors including which state’s laws apply to the agreement because non-compete law varies greatly among states.  If the applicable state law suggests the state will enforce a non-compete agreement hope is not lost.  Even among states that will enforce non-compete agreements there is a multitude of factors that govern whether a non-compete is otherwise valid.  Whether the non-compete is valid depends upon your own unique circumstances including factors such as employment history, job classification or position, an analysis of the employer’s interests versus the employee’s interests in changing employments, bad faith conduct by the employer, consideration provided for signing the non-compete agreement or other factors may be in play. Almost all states that may enforce non-compete agreements may only do so in the event the non-compete agreement is serving a legitimate business interest of the employer and is reasonable as to geographic scope and time duration and this necessarily will require the non-compete be analyzed under the appropriate factors applied to your given employment situation.

An attorney review of your non-compete can assist you with your strategy in changing employment including:

1. Obtain and review background documentation and information concerning your current situation and overall goals.
2. Acquire a narrative from you concerning your current situation.
3. Review the non-compete contract at issue and identify key provisions and areas of attack.
4. Interview you regarding background facts to identify both legal and non-legal leverage you may have with your employer.
5. Identify key legal cases and provide legal analysis of your particular situation.
6. Provide a detailed assessment of your matter, an opinion on enforceability, and proposed strategies for achieving your defined goals.
7. Identify options for moving forward, and provide a risk analysis of each option.

Recommendations from an attorney analysis of your non-compete matter may also include a letter to your employer, discussions with your prospective employer, or other strategies that are suggested from a review and analysis of  your particular circumstances that may help you in moving into a new employment.

Explore your options for navigating your non-compete issues with an experienced non-compete attorney at Traverse Legal.



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Monday, November 7, 2016

Beyond Damages: The Availability of Attorneys’ Fees in Trademark Infringement Cases

Sometimes trademark infringement can feel like a David versus Goliath, with Goliath a trademark infringement Plaintiff and Defendant seemingly with everything to lose.  The fact pattern is quite straight forward for Plaintiffs seeking damages in trademark infringement lawsuits.  Plaintiff alleges prior trademark rights, Plaintiff sues Defendant for trademark infringement and Defendant faces not only liability but also monetary damages.  Those monetary damages could include actual damages (e.g. harm to goodwill of trademark, disgorgement of Defendant’s profits, etc.) or statutory damages (e.g. treble damages or significant amount), costs and attorneys fees.  Plaintiffs typically used the possibility of attorneys’ fees as further leverage in enforcing their alleged trademark rights.

What sometimes is forgotten is the fact that an unsuccessful Plaintiff may face damages of its own.  Trademark owners and trademark lawyers must remember that a Plaintiff may ultimately be liable for damages in a trademark infringement case.  The Lanham Act authorizes that “The court in exceptional cases may award reasonable attorney fees to the prevailing party.”  See 15 USC 1117(a).  Defendants can also avail themselves of this provision.

Depending upon the Circuit Court for the underlying case, the standard for an exceptional case so as to warrant ordering of attorneys’ fees to either party was historically difficult to meet.  This may have recently changed now that the Ninth Circuit has clarified what some others (such as the Fifth Circuit, which controls Texas, and Sixth Circuit, which controls Michigan) have been following.  In particular, in SunEarth, Inc. v. Sun Earth Solar Power Co., Ltd., the Ninth Circuit has stated that:

an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.

This totality of the circumstances test is now one that Plaintiffs and Defendants alike should consider pre-litigation and throughout.  A Court may exercise its discretion can look to the facts, law and conduct of the parties (and their counsel) in order to determine if a party’s position is frivolous, unreasonable, vexatious, or pursued in bad faith.  Whereas a Plaintiff makes a calculated choice to pursue a lawsuit and understands that it may or may not recover damages, a Defendant is typically left with no choice but to defend.  This clarification from the Ninth Circuit tends to provide the Defendant with greater clarity as to its opportunity to recover its attorneys fees in doing so, especially depending upon the merits of the case and Plaintiffs’ actions.  Put simply, Plaintiffs need to litigate with more care since Defendants may now turn the proverbial tables on a Plaintiff who brings a specious claim (i.e. bad facts or law) or acts unreasonably in litigating the same.

This interpretation becomes more important where the financial stature of the litigating parties are not equal.  David as a Defendant may have a bigger stone than Goliath had thought, and Goliath better think hard about the damages it may face despite being a Plaintiff.  Trademark infringement litigators must advise their clients about the best case and worst case scenarios, which necessarily includes the discretion of the court to award attorneys’ fees to the prevailing party, Plaintiff or Defendant, in an exceptional case.



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Friday, November 4, 2016

Uptown “Skunk” – Are Copyright Lawsuits Stinking Up the Music Industry?

As copyright infringement lawsuits gain more prevalence within the modern music industry, the inquisitorial wafts about whether such actions stifle creativity have become increasingly putrid.  The widely controversial and publicized “Blurred Lines” copyright infringement lawsuit slapped an upward of $7 million in damages against Robin Thicke and Pharrell for infringing Marvin Gaye’s “Got to Give it Up.”  As of October 28th, Bruno Mars and Mark Ronson are now facing a similar lawsuit for their 2014 hit song “Uptown Funk.”

Collage, an electro-funk band, filed a copyright lawsuit in the U.S. Central District of California claiming that “Uptown Funk” is “an obvious, strikingly similar and/or substantially similar copy” of Collage’s 1983 song “Young Girls.”  Specifically, the Complaint alleges that “many of the main instrumental attributes and themes of ‘Uptown Funk’ are deliberately and clearly copied from ‘Young Girls,’ including, but not limited to, the distinct funky specifically noted and timed consistent guitar riffs present throughout the compositions, virtually if not identical bass notes and sequence, rhythm, structure, crescendo of horns and synthesizers rendering the compositions almost indistinguishable if played over each other and strikingly similar if played in consecutively.”

A copyright infringement claim based upon music is particularly complex because determining the threshold “substantial similarity” of songs can turn on multiple different factors and requires the assistance of an expert musicologist.  Most music copyright infringement issues resolve through licensing or paying royalties to the original artist.  Other songs have been deemed fair use when compared to their allegedly infringed counter-parts, such as 2 Live Crew’s “Pretty Woman” and Roy Orbinson’s “Oh, Pretty Woman.”  With copyright protection extending 70 years after the death of an artist, it becomes difficult for musicians to draw inspiration from one another without risking exposure to liability.

Collage’s complaint against Bruno Mars alleges that he has “listed some of his influences as Prince . . . George Clinton . . . Elvis Presley, Little Richard, Michael Jackson, and Sly Stone” and that Mars “had reasonable access to the Copyright Work ‘Young Girls’ and used such consciously or sub-consciously in the creation of the infringing work ‘Uptown Funk.’”  Similarly, Robin Thicke and Pharell actually admitted to being inspired by Marvin Gaye in the creation of “Blurred Lines.”  It appears that the lines between inspiration and infringement have become – ironically — blurred.

Those in favor of zealous music copyright protection believe that it attributes proper credit to the original artist.  Conversely, hundreds of artists have stood behind “Blurred Lines” by signing an appeal that argues the verdict in favor of Gaye’s Estate “threatens to punish songwriters for creating new music that is inspired by prior works.  All music shares inspiration from prior musical works, especially within a particular musical genre.  By eliminating any meaningful standard for drawing the line between permissible inspiration and unlawful copying, the judgment is certain to stifle creativity and impeded the creative process.”

The outcome of the “Blurred Lines” appeal could have a substantial effect on the “Uptown Funk” lawsuit.  Hopefully, clarification on what constitutes inspiration versus infringement comes soon or the combined stench of a stale music industry and confused legal industry could potentially start to become unbearable.

If you are concerned about whether your music copyright is being infringed or you are infringing someone else’s music copyright, contact the Attorneys at Traverse Legal for a consultation.



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How State Laws May Determine the Outcome of Your Non-Compete Dispute

You want to know whether your non-compete will prevent you from taking your next job.  The first question that needs to be answered is which state law applies to your non-compete agreement.  There as some states that do not enforce non-compete agreements in most case and other states that routinely enforce non-compete agreements.  Additionally, the state in which you are employed may not be the applicable state law to apply to determine the validity of your non-compete agreement.   Many non-compete agreements will contain an enforceable choice of law or jurisdiction agreement that may determine which state law applies to the non-compete agreement.

Because each state is free to develop its own law with regard to the enforceability of non-compete agreements the answer to which state law applies is critical to your understanding of your legal rights and obligations relative to your non-compete agreement.  In California, for instance, a non-compete agreement is generally not enforceable except in the limited circumstance of the sale of a business.  In Michigan, a non-compete is enforceable if it supports a legitimate business interest of the employer and is deemed reasonable in geographic scope and time duration.   Another important issue in deciding which state law may apply in states that enforce non-compete agreemetns is the concept of “blue penciling” or in other words whether the local court may reform the agreement to make it reasonable or, if found unreasonable, the Court may not blue pencil or reform the agreement and must simply invalidate it.

The first thing you or your attorney must determine is which state law applies to your non-compete agreement which is not always an easy thing to determine.   Traverse Legal is versed in the application of the law in all 50 states in determining the validity of a non-compete agreement and experienced in assisting you in determining which state’s law is applicable to your non-compete agreement.

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FAA Part 107 Lawyers Advising Clients on Controlled Airspace

The FAA Part 107 Airspace Debacle

When the FAA implemented the Part 107 UAS regulations on August 29, 2016, drone pilots and operators were pretty excited. As a drone lawyer advising hundreds of UAV clients, I already knew there was a weasel in the wood stack. The FAA had already indicated that it would only gradually open up controlled airspace (Class B, C, D and E).  This would mean that part 107 pilots could only fly in uncontrolled airspace, commonly known as Class G airspace. Here is what the FAA said on June 21, 2016:

Operations in Class G airspace are allowed without air traffic control permission. Operations in Class B, C, D and E airspace need ATC approval. See Chapter 14 in the Pilot’s Handbook (PDF).

And still through today’s date, The FAA’s “Fly for Work/Business” web page suggests that the only Airspace the FAA intended to open up quickly was Glass G.

Operating Rules:

  • Class G airspace*

  • Must keep the aircraft in sight (visual line-of-sight)*

  • Must fly under 400 feet*

  • Must fly during the day*

  • Must fly at or below 100 mph*

  • Must yield right of way to manned aircraft*

  • Must NOT fly over people*

 

Must NOT fly from a moving vehicle*


Free FAA Part 107 Airspace Request Training Videos.


It’s now November, 2016.  What is the State of FAA Airspace Authorization Now?

Most everyone in the drone industry expected that the FAA would move quickly to open up controlled airspace to Part 107 pilots. But that has not been the case at all. In fact, the FAA’s target deadlines for airspace authorizations we’re not met. Here’s with the FAA told us about its target dates for opening up airspace.

The FAA will evaluate airspace authorization requests using a phased approach.

Operators may submit their requests starting today, but air traffic facilities will receive approved authorizations, if granted,  according to the following tentative schedule:

Class D & E Surface Area      October 3, 2016

Class C                                 October 31, 2016

Class B                                  December 5, 2016

The FAA will make every effort to approve requests as soon as possible, but the actual processing time will vary, depending on the complexity of an individual request and the volume of applications the FAA receives. The agency is urging users to submit requests at least 90 days before they intend to fly in controlled airspace.

Well there have been some authorizations by ATC in class C & D, the number of authorizations is minuscule compared to the number of requests. As importantly, the FAA continues to play hide and seek with it criteria for granting airspace authorization.

As a result, the agency has had to reject 71 waiver requests and 854 airspace applications.

What the FAA has not said his how many airspace applications where in fact filed. And it has told us virtually nothing about why the airspace requests were not granted. Without this information, drone companies have virtually no guidance what the FAA is actually looking for. It could be that the FAA is simply denying airspace requests because they have decided they are not going to grant them under any circumstances at certain locations. That’s fine. But why not tell drone operators and drone lawyers representing drone pilotsWhat those locations are. If drone pilots are making common mistakes in their airspace request, why not publicly identify those mistakes so that pilots can get it right the next time.

Is importantly, the FAA provides no timeframe for processing airspace requests. A drone service company cannot sell drone services to customers if they can’t tell that customer when they might be able to fly and the likelihood they might be able to fly.

Until the FAA cleans up its aerospace authorization process and system, drunk companies will remain largely grounded. Companies need certainty in order to build a viable business model. There are simply too many things the FAA is not telling us in order for the drone industry to grow the customer base and market segments.

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Part 107 Waiver & Airspace Training Videos



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Internet Trade Libel or Defamation: Similar Yet Different

57088399 - defamation, red rubber stamp with grunge edges

We all know someone who has been the subject of internet defamation.  We receive inquiries daily about what can be done to correct a false statement made about someone on the internet.  Increasingly, there a significant number of businesses who are falling victim to internet defamation.  Businesses who are the subject of false and defamatory statements online or otherwise may have a distinct and separate claim against the poster for trade libel.

The standard defamation elements generally apply to businesses in that the content at issue must be a statement of fact that is provably false that causes financial harm or harm to reputational interests and the author was at least negligent or careless in its research of the true facts prior to posting the material online.  Generally, a business must also prove that the actual monetary damages and that the poster of the content acted with the intent to disparage your product or brand.  Proof of all of these elements will entitle the victim to be able to assert a separate cause for business defamation or the alternative label is trade libel.

An often overlooked potential claim in a business defamation or trade libel case is one that falls under the Lanham Act which is also known as the Trademark Act and is essentially a false advertising claim and is a claim raised against a competitor of your brand or business offerings.

If your business is victim to business defamation or trade libel, or has been damaged as the result of the false advertising of a competitor, then the attorneys at Traverse Legal may be able to assist you.  Contact us today for an assessment of your trade libel matter.



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Wednesday, November 2, 2016

Time to Legislate Against Trademark Infringement on Social Media?

LinkedIn was founded in 2002, Facebook was founded in 2004, YouTube was founded in 2005, Twitter was founded in 2006, Instagram and Pinterest were founded in 2010 and Snapchat was founded in 2011.  Social networking websites have changed the landscape of not only how we interact with one another but also how companies reach consumers.  Companies evangelize their brands through social media sites as much as through their websites today.  In fact, some companies may argue that the following on a particular social media platform is more valuable than a stagnant website that does not draw constant attention from consumers.  However, what is one to do when they face a trademark issue related to a social media handle?

The Anti-Cybersquatting Consumer Protection Act (ACPA) was enacted in 1999 in order to create a cause of action against one who registered, used or trafficked in a domain name with a bad faith intent to profit off of the goodwill associated with the trademark of another.  It was an extension of the Lanham Act, namely 15 USC 1125.  It coincided with the explosion of the Internet.  It was aimed at protecting trademark owners from being harmed by cybersquatters who could hold domain names hostage, among other things.  The ACPA has been a powerful tool for trademark owners, namely companies looking to protect their brand online.  While domain names have become ubiquitous, so too, albeit thereafter, has social media.

Unfortunately for trademark owners who attempt to claim a social media handle on the various social networking websites only to find it already taken, they are left to try to work with the social media site (as limited by their policies) or pursue litigation using causes of action that may not be directly on point.  Trademark owners are also forced to deal with those who imitate the brand, or the individual, with similar handles.  A username, domain name and trademark search will likely reveal problems on social media for most brands, especially newer ones who do not have the resources to be as vigilant in their trademark monitoring, defensive registration or enforcement efforts.  More often than not, use of a trademark search tool will reveal infringement of one’s trademark or brand or identity.  Instead of brands being unable to prevail against the owners of what would otherwise be their social media handles because, for example, there has been no use of the social media handle in commerce, it is time to consider a statute akin to the ACPA, and its goal of cyberpiracy prevention, for social media.

A social media statute could be similar in language to that of the ACPA, as proposed by this author and outlined below in most relevant parts.  Doing so would afford a trademark owner the ability to pursue a civil action involving the social media handle and have a court order the forfeiture or cancellation of the social media handle or the transfer of the social media handle to the owner of the mark.  Such a statute may also ultimately spur an arbitration option similar to that the Uniform Domain Name Dispute Resolution Policy (UDRP).  Regardless, is it time for legislation to catch up with technology, and possibly those that may benefit from trademark owners on social media websites?

 

Social Media Piracy Prevention [Proposed by Brian A. Hall]

(A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person—

(i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and
(ii) registers, traffics in, or uses a social media handle that:

(I) in the case of a mark that is distinctive at the time of registration of the social media handle, is identical or confusingly similar to that mark;

(II) in the case of a famous mark that is famous at the time of registration of the social media handle, is identical or confusingly similar to or dilutive of that mark; or
(III) is a trademark, word, or name protected by reason of section 706 of title 18 or section 220506 of title 36.

(B) In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to—

(I) the trademark or other intellectual property rights of the person, if any, in the social media handle;
(II) the extent to which the social media handle consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
(III) the person’s prior use, if any, of the social media handle in connection with the bona fide offering of any goods or services;
(IV) the person’s bona fide noncommercial or fair use of the mark in a site accessible under the social media handle;
(V) the person’s intent to divert consumers from the mark owner’s online location to a site accessible under the social media handle that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
(VI) the person’s offer to transfer, sell, or otherwise assign the social media handle to the mark owner or any third party for financial gain without having used, or having an intent to use, the social media handle in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct;
(VII) the person’s provision of material and misleading false contact information when applying for the registration of the social media handle, the person’s intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of such conduct;
(VIII) the person’s registration or acquisition of multiple social media handles which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such social media handles, or dilutive of famous marks of others that are famous at the time of registration of such social media handles, without regard to the goods or services of the parties; and
(IX) the extent to which the mark incorporated in the person’s social media handle is or is not distinctive and famous.

 

Note this post represents the views of its author, Brian A. Hall, and it does not necessarily represent the views of Traverse Legal, PLC or its members.



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