How Long Does a Patent Last?

As a general rule, a utility patent has a term of 20 years from the date on which the application for the patent was filed in the United States.  Even though the term of a utility patent is measured from its filing date, the term does not actually being until the patent issues.  If the application that eventually issues into a patent specifically references an earlier filed non-provisional U.S. or international patent application, the term ends 20 years from the filing date of the earliest such application.  Thus, provisional patent applications are not considered in the calculation of the 20-year patent term.

 

There are several exceptions to the 20-year patent terms.  First, patents will expire short of their 20 year pendency if the necessary maintenance fees are not timely paid to the U.S. Patent and Trademark Office (USPTO) to keep the patents alive.  Second, the USPTO may provide patent term adjustments to patents that endured unwarranted administrative delay by the USPTO as pending patent applications.  Third, patents granted from continuing patent applications (e.g., continuations, divisionals, or continuations-in-part) will each have a patent term that ends 20 years from the filing date of the earliest application from which a benefit is claimed.

 

For design patent applications filed on or after May 13, 2015, the term is 15 years from the date the patent was granted.  Patents issued from design patent applications filed before May 13, 2015 have a term of 14 years from the date the patent was granted.

 

Even though the USPTO does not calculate expiration dates for patents, the USPTO does provide a downloadable patent term calculator to help estimate the expiration date of a patent.  The calculator can be used to estimate the expiration dates of utility, plant, or design patents.

 

As you can tell, determining the expiration date for a patent is not always straightforward, even with the assistance of the USPTO patent term calculator.  Whether you are a patent owner; a business owner looking to acquire a patent; a competitor to a business that owns a patent in your field; or an individual/party being accused of patent infringement, identifying the exact expiration date of a patent is critical.  Feel free to contact a Traverse Legal patent attorney to assist you with your patent needs.

 

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Franchises: Nothing Without a Trademark

Put simply, a trademark is a necessary building block to any franchise.  We have represented franchisors and franchisees across a whole range of trademark matters.  We have helped franchisors select, clear, apply for, register and enforce their trademark.  We have been there when a franchisor chooses to, or is forced to, rebrand its trademark. There are numerous trademark and brand protection strategies for franchisors, though the following should absolutely be considered:

1. Trademark Selection – Choose a distinctive trademark and be sure it is one that will not subject you to claims of trademark infringement.’
2. Register Your Trademark – Apply to register it as soon as possible, including in the geographic locations in which you intend to do business.  For US-based franchisors, start with the United States Patent and Trademark Office.
3. Police, Protect and Enforce Your Trademark – This is important to both franchisors and franchisees alike, with the responsibility for doing so applicable to both.
4. Control the Quality of Your Trademark – Controlling quality pertains to both the goodwill associated with the trademark but also the underlying goods/services offered in connection with the trademark.
5. Recognize the Importance of Your Trademark – Without your trademark, you have no franchise.  As a franchisor, if you fail to maintain your trademark, you are likely in violation of your franchise agreement with your franchisee.

Ultimately, trademarks are as important to a franchise as the underlying good or service.  The trademark is the basis for the license to use the the franchised items.  If you start knowing you wish to operate as a franchise, you can give the trademark process the attention it deserves immediately.  However, knowing that some businesses start without the idea of franchising only to actually become a franchisor, any business should ensure their trademark rights are in order.

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Queen B Must “Get in Formation” for a Lawsuit

The estate of late rapper Messy Mya has sued Beyoncé for copyright infringement, alleging that Beyoncé used Messy Mya’s voice without permission in the “Formation” music video.  Specifically, Messy Mya can be heard in the beginning of the song saying “What happened after New Orleans?” and “B***h I’m back, by popular demand,” as well as later with Messy Mya’s supposedly signature phrase “Oh yes, I like that.”  Requesting an astronomical $20 million in damages, the estate claims that it has not received any money or acknowledgement from Beyoncé since the February 2016 “Formation” release.

The issue of whether music sampling such as this constitutes copyright infringement has plagued the music industry for some time.  Artists such as 2 Live Crew, MC Hammer, and Vanilla Ice have been targeted in copyright infringement lawsuits based upon the sampling of other tunes like “Oh, Pretty Woman,” “Super Freak,” and “Under Pressure,” respectively.  Some musicians have found protection under the Fair Use Doctrine, which provides defense to copyright infringement claims for works that are “transformative.”

While $20 million might be a drop in the bucket for Queen B, the potential for significant copyright precedent is apparent.  With cases like those against Robin Thicke still pending, copyright law could be drastically altered if music sampling is found as either infringement or fair use.  The question continues to linger – how far is too far when it comes to music sampling?

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The Angels of Revenge Porn Article by Erica Fink

Forum Selection for Your Defamation Suit Considering Anti-SLAPP Laws

We are going to talk a little bit today about forum selection for filing your defamation lawsuit, in consideration of forums with anti-SLAPP laws. Before we discover what anti-SLAPP laws are, let’s discuss the meaning of SLAPP.

A SLAPP lawsuit is technically called a strategic lawsuit against public participation. A SLAPP lawsuit is a suit filed against someone who is attempting to rightfully exercise their rights of free speech under the First Amendment but is filed under the guise usually of a defamation claim. The goal of a plaintiff under a SLAPP lawsuit is generally to silence the speaker using a tenuous defamation claim. Because the laws in various states are different regarding the thresholds relative t what is defamatory and what is not defamatory, it is often difficult to determine whether a defamation claim is a SLAPP lawsuit or not.

If you are a plaintiff intending to file a claim for defamation, it is often better to consider a forum, if it is available, that does not have an anti-SLAPP law in place for reasons we will discuss.

An anti-SLAPP law generally is designed as a remedy from SLAPP lawsuits and under most statutory schemes for anti-SLAPP laws under the various states that have anti-SLAPP laws, the plaintiff files a motion claiming their rights and statements are protected under the First Amendment and usually claim they either have a valid First Amendment right they are exercising or that they are otherwise providing speech or commentary on a matter of public concern. The burden then shifts to the plaintiff to establish with admissible evidence a prima facie case or legally viable case that the content being complained about is legitimately defamatory. If the plaintiff does not meet its burden and the Court dismisses the case, then typically the plaintiff is responsible for the defendant’s attorney’s fees incurred in the lawsuit.

Filing a defamation lawsuit in a state with an anti-SLAPP statue under some circumstances carries additional risk for the plaintiff, especially in cases where the claimed defamation is a close-call in terms of meeting thresholds established by that state for maintaining defamation claims.

Presently, twenty-eight (28) states have enacted anti-SLAPP laws as well as the District of Columbia. Those states with anti-SLAPP statues are: Arizona, Arkansas, California, Delaware, District of Columbia, Florida, Guam, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Missouri, Nebraska, Nevada, Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, and Washington, at the present time. Almost all states have considered some form of anti-SLAPP legislation over time and the trend appears to be moving in the direction of the anti-SLAPP proponents. In fact, there has been federal anti-SLAPP legislation proposed, which is sustaining some momentum especially in the most recent presidential campaign where Donald Trump has threatened lawsuits against the media defendants for allegedly defamatory articles about the candidate. One would think in a Trump administration with Mr. Trump’s views on the media generally, and a republican legislature, that federal anti-SLAPP legislation not, however, on the horizon anytime soon. States will nonetheless continue to consider adoption of anti-SLAPP statues.

The bottom line is if you have a choice of forum in a state where anti-SLAPP legislation has not been enacted, it is often wise to review the options concerning filing in a state with anti-SLAPP laws versus states without anti-SLAPP laws to minimize any risk that a Court would find your defamation claims are within that state’s definition of a strategic lawsuit against public participation. Your best option is to consult in advance with an attorney experienced in both defamation and anti-SLAPP Laws to properly prepare your defamation lawsuit.

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Branding: Top 5 Legal Considerations for Trademark Rebranding

If you are a newer company, you may think about rebranding as your company’s offerings change.  For example, you have now pivoted away from being focused on a particular niche good or service and your company name is now too limiting.  Alternatively, the service mark or trademark you originally used does not seem to resonate with your target market, so you want to have a more suggestive brand.  All too often a newly selected brand, whether by a start-up or a long-standing entity, comes under attack from a third party due to allegations of trademark infringement.  Rather than fight, or perhaps because you lost the fight, you have to rebrand.  Regadless, typically there is a reason that the trademark rebrand is desired or needed.  While there is plenty of instructive content relative to rebranding your company, here are the top 5 legal considerations for any rebrand:

1. Perform a Trademark Availability Assessment and Trademark Clearance Search

For the avoidance of doubt, selecting a new brand is not easy.  It is really, really hard.  Expect to select a brand only to find out the risk of being refused registration or subjecting you to claims of trademark infringement render it a non-option.  Do not make the amateur mistake of having the marketing team or VP of Brand select the new trademark without involvement of legal.  A trademark attorney should be involved at the outset and work in conjunction with the creative team.  Some brands may not qualify as trademarks because they are generic or too descriptive.  Other hopeful brands may subject the organization to claims of trademark disputes, and thus significant legal and financial exposure.  Some may, for practical reasons, such as third party usage in connection with an unwanted area (e.g. pornography), may render the desired brand a poor choice.  Regardless, follow the recommended process of identifying a few options, allow the trademark lawyers to perform trademark searches and clearance opinions and then proceed with non-legal due diligence related to selection of a new mark.

2. Secure Trademark Properties

What are trademark properties?  These are the things you want to own associated with your trademark.  They include domain names, social media handles, etc.  While some may say that you should pursue these after you have filed your trademark applications or made your first use, the issue becomes whether they are available.  If not, known desired usage may lead to an increased cost to acquire.  Ideally, you can can secure such things as the .com (and other gTLD) domain name, Facebook, Twitter and other items for your desired rebranded mark, but it is entirely likely that you may have to secure close alternatives or negotiate the acquisition of them from third parties who have already registered/secured them.

3. Apply to Register your Trademark

This should be in the form of an intent to use trademark application with the United States Patent and Trademark Office (USPTO) and any other governing body for geographic locations in which you will use your mark.  Note that it may be in your best interest to pursue several intent to use applications related to your desired rebrand (e.g. character mark, logo, etc.).  Oftentimes, entities with a bona fide intent to use more than one mark apply to register multiple rebranded marks, recognizing they may ultimately choose one and abandon the others.

4. Maintain and Protect Your Existing Trademark

Unless your rebrand is forced, such as a result of a dispute and ordered abandonment of registration and cessation of use of your existing mark, so long as your legacy mark will still have some use, you should maintain and protect against unauthorized use of it.  This is especially true if it is similar to your rebranded mark.  Some entities even keep their trade name as the former brand despite rebranding, making it all that much more important to not abandon the prior mark.

5. Monitor Third Party Use of Your Rebranded Mark

While commentary (perhaps even critical commentary) typically follows a rebrand, you should be most concerned with unauthorized third party usage of your new trademark or service mark.  Remember, failure to protect and enforce your trademark rights can lead to abandonment of such rights.  You want to make sure all the effort put into the rebrand is policed accordingly so as to maintain and increase the developing goodwill associated with your new mark.

Trademark rebranding is a process, but it is one that can be effectively managed, with controlled legal and other expenses, if done correctly.  Not convinced, stories abound of rebranding done well and done poorly.  It is your choice, and one critical to your identify and value.

 

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What is Right of Publicity?

Somewhat related to a claim of copyright infringement (and often preempted by such a claim – more on that later), is the claim for Right of Publicity.  While sometimes available to any individual, Right of Publicity is typically aimed at protecting the name or likeness of famous individuals.  A claim for violation of Right of Publicity can be either statutory or common law and varies state by state.  Some states only recognize a Right of Publicity for living individuals, while others, such as Texas, permit post-mortem Right of Publicity.  Other states recognized a similar claim called misappropriation, while still others use misappropriation interchangeably with Right of Publicity.  With all these moving parts, what exactly does a Right of Publicity claim involve?

Generally, Right of Publicity requires three elements: (1) Use of an individual’s name or likeness; (2) for commercial purposes; (3) without Plaintiff’s consent.   The commercial requirement typically restricts the Right of Publicity claims since their name or likeness is more likely to be used in commerce.  California has particularly robust case law on Right of Publicity due to the abundance of celebrities residing within that state, so that jurisdiction is the focus of this blog post.

California recognizes both a statutory and common law Right of Publicity, both of which can be asserted in the same lawsuit. “The elements of a right-to-publicity claim under California common law are: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.”  In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1273 n. 4 (9th Cir. 2013).  California’s statutory Right of Publicity “requires a plaintiff to prove all the elements of the common law action plus a knowing use by defendant as well as a direct connection between the alleged use and the commercial purpose.”  Id.

There have been instances in which a Right of Publicity claim has been preempted by Plaintiff’s copyright infringement claim.  The Ninth Circuit recently found that a Plaintiff actor’s claim that his Right of Publicity had been violated was preempted by the Copyright Act because the “factual basis of his right of publicity claim was the unauthorized reproduction of his performance on the DVDs.”  Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1154 (9th Cir. 2010).  Therefore, the “essence” of Plaintiff’s claim was the reproduction and distribution of DVDs without authorization, which fell under Copyright protection.  Id. at 1155.  Explaining the rationale behind this, the Ninth Circuit stated that: “Were we to conclude that [Plaintiff’s] misappropriation claim was not preempted by the Copyright Act, then virtually every use of a copyright[] would infringe upon the original performer’s right of publicity.”  Laws v. Sony Music Entm’t, Inc., 448 F.3d 1134, 1145 (9th Cir. 2006).

And, like copyright infringement, Right of Publicity is also subject to First Amendment defenses.  Similar to Fair Use under copyright law, which focuses on the transformative aspects of a work, an alleged violation of Right of Publicity may also be defended as being transformative.  This is because “when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity.”  Ross v. Roberts, 222 Cal. App. 4th 677, 685 (2013).

Overall, Right of Publicity can be an effective claim in some states for individuals to utilize when their name or likeness has been used for commercial purposes without authorization.  While similar to Copyright Infringement, it is a claim that needs to stand on its own two feet to avoid preemption.

If you believe that your Right of Publicity has been violated or have been accused of violating another’s Right of Publicity, Traverse Legal is here to help navigate your options.  Contact us for assistance today!

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