When CAN you SPAM? A Quick Guide to the CAN-SPAM Act

Spam.  Junk Mail.  Technically defined as “any electronical mail message the primary purpose of which is the commercial advertisement or promotion of a product or service.”  You know, the e-mails that are building up in your Gmail “Promotions” tab at this very moment and will likely go unread.  Annoying, yes.  Useful, perhaps (especially when you score a sweet discount from your favorite retailer).  But legal?  Surprisingly, yes!  Under United States Law, the CAN-SPAM Act makes spam legal, albeit with a few restrictions.  In order to utilize spam legally in your business, it is important to follow these three basic guidelines:

1. Avoid False/Misleading Headers & Subject Lines

The “from” e-mail, domain name, and subject lines must be truthful and accurately reflect the content of the message.  The CAN-SPAM act makes it illegal to send spam with falsified header information.

2. Include a Physical Address

A legitimate physical address (which can be a P.O. Box) must be included in the spam message.

3. Provide an Unsubscribe Option At The Bottom

There must be a visible and operable unsubscribe mechanism.  If a recipient chooses to opt-out, their request must be honored within ten (10) business days.  Once a recipient has opted out of your spam mailing, it is illegal to sell or transfer the e-mail address that opted out.  Keep in mind it is also illegal to harvest e-mails for spam purposes.

If you are interested in utilizing spam for your commercial business purposes, Traverse Legal can offer you a personalized assessment on the legality surrounding your proposed spam use.  Contact us today!

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Copyright Statute of Limitations: Don’t Sleep On Your Rights

Recently, I received a call from an individual indicating that their copyrighted work had been infringed.  My first thought is that Traverse Legal can easily assist with a Copyright Infringement Notice Letter.  That is, however, until they tell me that they found out about the infringement four years ago.  FOUR years ago?!   And you’re just now pursuing it?  Unfortunately, this means that the Statute of Limitations had run on a potential copyright infringement claim, severely weakening any leverage that a Copyright Infringement Notice Letter could have.   Because of this particular call, I felt compelled to write a blog on emphasizing how important it is to act quickly once you have discovered copyright infringement.

The Copyright Act imposes a three-year statute of limitations on copyright infringement claims, indicating that “no civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.”  Courts are divided, however, on when a claim “accrues” and whether the statute of limitations begins to run when the infringement is committed (the “injury rule”) or when it is discovered (the “discovery rule”).

In majority “discovery rule” Circuits, if someone started infringing your copyright four years ago and you just now discovered it, you could still have a copyright infringement claim.  However, if you’re in a minority “injury rule” Circuit, then you only have three years to bring a copyright infringement claim period.  It is therefore prudent for copyright owners to be vigilant in policing for infringement so as not to miss the opportunity for a copyright infringement suit.

Any cause of action, not just copyright infringement, has a statute of limitations imposed upon it.  The lesson here is that if you know something illegal is occurring, DO something! Don’t sleep on your rights because then it might be too late.

If you are a victim of copyright infringement, or have been accused of copyright infringement, contact Traverse Legal today for an assessment of your rights.

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Search Engine Optimization Basics

Search Engine Optimization, or “SEO”, is “the process of affecting the visibility of a website or a web page in a web search engine’s unpaid results – often referred to as ‘natural,’ ‘organic,’ or ‘earned’ results.”  Typically, websites that appear on Google’s first page, within the first five results, get the most visits.  Successfully utilizing SEO is crucial to establishing a strong website, company, and brand.  So what can you do to make sure SEO is working in your favor?

Some things you can do on your own to promote SEO is to regularly upload quality content to your website (i.e. blogs), create a user friendly browsing experience, ensure that your website is compatible on both computers and hand held-devises, insert internal links throughout your website, and engage in social media marketing.  Search engines like Google pick up on this activity, which leads to your website appearing higher in search results.  The more your website is visible, the more business you can bring into your company.

If the thought of implementing your own SEO strategy seems intimidating, there are several SEO companies that can help you out.  Some services that an SEO company can provide are reviewing your site content and structure, technical advice on website development, content development, management of online business campaigns, keyword research, and expertise in specific markets.  An investment in a skilled SEO company will often result in growth for your business.

In the event you do hire an SEO company, you will need a Search Engine Optimization Agreement.  An SEO Agreement establishes the parameters of an SEO company’s development and execution of a search engine optimization and marketing strategy for the client.  A well-drafted SEO Agreement should be mutually beneficial for both parties and limit the chances of legal disputes arising as a result of misunderstanding.

If you are looking to utilize SEO and need a SEO Agreement drafted or reviewed, contact a Traverse Legal Internet Lawyer today!

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International Copyright Protection

So you have registered your copyright with the United States Copyright Office, which gives you robust protection and the option for more sizable damages in the event of infringement.  But what if your registered copyright is being infringed in another country?  As there is technically no such thing as an “international copyright” (copyrights are only national in scope), your route to recovery will be slightly more difficult.

A total of 172 countries, including the United States, Canada, Mexico, United Kingdom, France, Germany, China, and Australia, are parties to the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”).  Under the Berne Convention, the countries recognize copyrights held by the citizens of all other signatory countries.  Thus, owners of U.S. copyrights do not have to register their works in foreign countries in order to be protected.

Being protected under international copyright laws and actually enforcing a copyright internationally, however, are very different things.  If the infringement is occurring solely on foreign soil, the copyright owner will have to bring a copyright infringement lawsuit under the laws of that country, rather than U.S. copyright law.  While it is possible to obtain jurisdiction over a foreign infringer in U.S. Courts (think importation of copyright infringing goods into the US), that is not always an option.  If you are serious about pursuing copyright infringement claims internationally, you will need to acquire a lawyer licensed in that country.

If you are concerned that your copyright has been violated in another country and need an assessment of your rights and options, give Traverse Legal a call today.

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New Michigan Revenge Porn Law

Michigan has recently joined the ever growing number of states that have adopted some version of a revenge porn law.  Generally, revenge porn occurs when a person posts another’s sexually explicit photographs online as an act of revenge, however, Michigan’s revenge porn law is broader in scope.  The statute MCL  750.145e states in pertinent part:

A person shall not intentionally and with the intent to threaten, coerce, or intimidate disseminate any

sexually explicit visual material of another person if all of the following conditions apply:

(a) The other person is not less than 18 years of age.

(b) The other person is identifiable from the sexually explicit visual material itself or information displayed in

connection with the sexually explicit visual material. This subdivision does not apply if the identifying information is

supplied by a person other than the disseminator.

(c) The person obtains the sexually explicit visual material of the other person under circumstances in which a

reasonable person would know or understand that the sexually explicit visual material was to remain private.

(d) The person knows or reasonably should know that the other person did not consent to the dissemination of the

sexually explicit visual material.

Disseminate is defined to mean online dissemination and is defined to include,

“post, distribute, or publish on a computer device, computer network, website, or other

electronic device or medium of communication.”

Posting another’s nude photographs online is certainly one way to violate the statute, but “dissemination” could also include dissemination by email of explicit photographs to others without consent and could also result in violation of Michigan’s revenge porn statute.

Sexually explicit material also includes simple nudity and so publication of nude photographs without anything more can be a violation of Michigan’s revenge porn statute.

Violation of Michigan’s revenge porn statute is a misdemeanor which can include a jail sentence of 93 days for a first offense and up to one year for second or subsequent offenses as well as fines.

If you believe you are the victim of revenge porn under the Michigan revenge porn statute or have been accused of violating the Michigan revenge porn statute the attorneys at Traverse Legal are able to provide qualified assistance.

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Top 5 International Trademark Protection Tips

There is no such thing as a global trademark, really.  Trademark rights are territorial.  This means that your securing trademark rights, either via use or registration, in one country does not necessarily provide you with trademark rights in another country.  There are limited exceptions to this rule surrounding the territorial scope of trademark rights, such as for well-known marks.

So how does this important trademark principle impact brand owners?  Here are the top five considerations with respect to global trademark protection (note I did not say securing a global trademark):

1. Protect Your Home Turf First.  This means filing for trademark registration in the country in which you do business.  If you do business in the United States, file a trademark application with the United States Patent and Trademark Office.  If you do business in North America, file with the USPTO, CIPO (Canada) and IMPI (Mexico).
2. Expand Your Scope of Protection Early and Often.  This means pursue trademark registrations in countries in which you believe you will do business or actually conduct business.  One critically important reminder is that different countries protect trademarks differently.  Put another way, some countries provide trademark rights on a first to file basis rather than a first to use basis (Note the United States is a first to use trademark country).
3. Utilize International Treaties to Expand Your Rights.  The most common is the Madrid Protocol, which can help ensure protection of the mark in multiple countries through the filing of one application with a single office, in one language, with one set of fees, in one currency.  For example, if you have filed an application or possess a registration in the United States, you can avoid filing individual trademark applications in the governing offices of various countries.  Note that not all countries are members of the Madrid Protocol, so you still may need to do separate filings.
4. Time Is Of the Essence for Your Application.  If you want to rely upon the benefits above in #3, your international application must both (1) claim priority and (2) be filed in the USPTO within six months after the filing date of the basic application that forms the basis of the priority claim.  Timing is also important because oftentimes entities in different countries will file applications matching your trademark in hopes of blocking your rights and profiting off of you and/or your brand.
5. Actively Manage Your International Trademark Rights.  This means working with your trademark attorneys, both domestic and international as needed, to file, prosecute, docket, monitor and enforce your trademark rights.  Establishing an a trademark portfolio plan early can save significant resources that otherwise may become necessary to dispute infringement issues, cancel conflicting applications or registrations or forego international markets.

These tips are applicable to early-stage entrepreneurs, emerging and growing entities and established enterprise organizations.  Regardless of the size of your trademark portfolio, international trademark protection must be considered and handled properly to maintain the goodwill of your brand.

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