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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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.

2. Modification – Next it is important to reserve the right for the website to modify the terms at any time.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. Third Party Links & No Endorsement – Any links that go outside the website are not endorsed by the website in anyway.

10. 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.

11. 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.

12. 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.

13. 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.

14. Integration – You want to integrate your Terms of Use with your Privacy Policy so that they are both considered together.

15. 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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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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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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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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