Latest Posts

TTAB Update: A Notice of New Rules

Written by: Britney Karim

The changing face of law practice will soon reflect amendments to the Trademark Rules of Practice, or more specifically, the rules put forth by the Trademark Trial and Appeals Board (TTAB). On April 4, 2016, the United States Patent & Trademark Office (USPTO) published the proposed new procedural rules in the Federal Register. [1] Accordingly, the proposed rules will go into effect on January 14, 2017, and will be applicable to cases pending on that date. [2] Further, the rules will affect all inter partes office actions filed with the USPTO, such as trademark oppositions, cancellations, concurrent use proceedings, and ex parte proceedings. [3] (more…)

The Battle for the Washington Redskins’ Trademark Rages On

Written by: Sonia Faizy

After nearly two decades, 9,000 billable hours later,[1] and approximately $3.5 million in pro bono legal services for the Native American petitioners,[2] the battle over the Washington Redskins’ trademark continues to rage on with no clear end in sight.On June 18, 2014, the U.S. Patent and Trademark Office (USPTO) canceled the Washington Redskins’ six federal trademark registrations based on a trademark law provision in the Lanham Act[3] prohibiting marks with “immoral, deceptive, or scandalous matter” or “matter which may disparage…persons…or bring them into contempt or disrepute…”.[4] After the Trademark Trial and Appeals Board (TTAB) order against the Redskins on June 18, 2014, the team appealed the decision, claiming that the Lanham Act violated the team’s First Amendment rights, and that the opposing parties failed to meet their legal burden of proving that a sufficient percentage of Native Americans found the term offensive. On July 8, 2015, the trial court denied the Redskins’ Motion for Summary Judgment and affirmed the TTAB’s previous trademark cancellation order. Most recently, on October 3, 2016, the U.S. Supreme Court declined to hear the Washington Redskins’ case before a ruling by a federal appeals court. (more…)

Earth: A Pit Stop to Mars?

Written by: Irram Khan

On September 27, 2016, Elon Musk, inventor and founder of SpaceX, revealed details on his plan to colonize Mars.[1] This endeavor is more than just a savvy actualization of a 1960s sci-fi novel—it’s  a significant advancement in human development and technology. The concept, however, is not new. According to National Geographic, the plan to conquer Mars has been in motion since at least the 1970s.[2] Musk’s latest move is reviving mainstream interest in space.  Even the Boeing CEO, Dennis Muilenburg, confidently declared at the most recent “What’s Next” innovation conference in Chicago, that Boeing will land the first person on Mars.[3] Although the journey to Mars sounds exciting, space travel faces some very real developmental issues here on earth, from a legal standpoint. For young lawyers and law students, however, this may be good news. (more…)

Not Merely an Exit: Brexit’s Effects on European IP Law

Written by: Michael Choi

Breaking away when a situation becomes unfavorable, while not the smoothest option, is an appropriate option to consider. However, failing to consider the ramifications of turning away may complicate the situation further.

Enter: Brexit.

Brexit, a portmanteau of the words “British” and “exit,” describes the controversial referendum held on June 23, 2016, where voting-age citizens of the United Kingdom (UK) voted on whether to remain in or leave the European Union (EU).[1] A 51.9% majority voted for the UK to exit the EU.[2] Because of its international economic presence, the UK’s severance will leave the EU in a precarious position. The severance will even challenge the United States, since many of its companies continue to conduct business in the UK. (more…)

Is It Time for the U.S. to Implement Stronger Data Protection Regulations—Like the EU’s General Data Protection Regulation?

Written by: Luis Colula

Yahoo, one of the largest email providers, revealed last week that it experienced a cyber attack in late 2014.[1] Yahoo discovered the breach only after it was alerted of a separate, unconfirmed breach, which had prompted the Internet firm to review its security systems.[2] The breach affected some 500 million user accounts.[3] It is believed that hackers acquired account users’ names, birth dates, email, telephone numbers, and, in some cases, encrypted and unencrypted security questions.[4] Nevertheless, Yahoo has assured customers that no passwords, payment card, or bank account information was affected.[5] Notwithstanding the appearance that the attack comprised low-value information, the breach is still thought to be the largest ever in terms of user accounts.[6] (more…)

The U.S. Versus the E.U. – The Inconsistent Nature of Design Protection

Written by: Daniel Armstrong

How difficult should it be to protect design? It’s a common enough notion: risk-takers and innovators want to be rewarded for creative solutions and designs, but in order to reap the benefits of their labor, the intellectual property they’ve created needs to be protected from copying.

The problem in the US: Many criticize the legal framework in the United States as providing inadequate protection to its designers, and warn that this protection deficit leaves designers feeling less motivated to enter the startup world in the first place. Those critics point to the European Union as an example of how the United States should reform its intellectual property protection framework.

Critics of the US legal framework have three primary complaints: First, the functionality doctrine—which prohibits protection of copyright works, trade dress, or patents that are simply functional, in order to avoid anticompetitive marketplace effects that would result from enforcement—is limiting the scope of design protection. Second, this diminished protection results in lower profits to designers and reduced drive for the public to innovate. Third, the costs and time needed to acquire protection make it harder for new designers and brands to stay ahead of the game, especially in rapidly moving industries like fashion. (more…)

Copyright Issues in the Construction Industry

Written by: Matthew Cox

The construction industry is governed by many different bodies of law.  Arguably, contract law lays the unifying foundation for the industry.  But other bodies of law still play vital roles in shaping the ever-changing legal landscape.  Intellectual property, and specifically copyright law, is vital to the industry.

Just who owns architectural or engineering design documents associated with a construction project?  Does the owner who contracted with the design professional[1] for design services own the documents?  Or, does the designer, by way of work product created by intellectual means, retain ownership of the plans and specifications?  (more…)

The Face Behind Bitcoin: He Said, She Said

By Chris A. Batiste-Boykin

On March 6, 2014, Newsweek published an article by reporter Leah McGrath Goodman in which Goodman claimed to have identified the creator of Bitcoin as Mr. Dorian Nakamoto. The article reads almost like a Tom Clancy novel and suggests that the creator of the volatile, digital currency left clear and obvious hints as to his identity, despite an overwhelming public awareness that he intended to remain anonymous.

Mr. Nakamoto http://masterpapers.com/ vehemently denies being Bitcoin’s creator and has lawyered up to defend his position. Mr. Nakamoto claims he didn’t even know that Bitcoin existed until February 2014 and that Newsweek’s accusation is costing him opportunities for gainful employment and adversely affecting the health and well-being of his family. (more…)

“Dumb” Starbucks: “Dumb” Move?

By Wilson Lau

On February 8, 2014, a new coffee shop opened its doors in Los Feliz, Los Angeles. According to the general consensus, the shop’s coffee is “pretty awful,” yet people were willing wait in line for an hour to get a cup of coffee from the new shop. So, what kept these people in line? While curiosity may tempt a few people to try the new coffee shop, more likely than not, it has something to do with its name: Dumb Starbucks. According to patrons, Dumb Starbucks looked identical to the real Starbucks—that is, except for the word “dumb” placed in front of everything.

The mastermind behind Dumb Starbucks is Nathan Fielder, a comedian on Comedy Central. Fielder apparently believes that the real Starbucks cannot sue him because, by adding the word “dumb,” he is technically making fun of Starbucks, and parodies are protected under the Fair Use doctrine of trademark law. According to one court, “[a] parody must convey two simultaneous—and contradictory—messages: that it is the original, but also that it is not the original and is instead a parody.”[1] In the case of Dumb Starbucks, Fielder would most likely satisfy this court’s definition of parody because of the shop’s FAQs listed on the premises, describing the company as a parody. In addition to their FAQs, the baristas working at Dumb Starbucks also told patrons that they are not affiliated with the real Starbucks. (more…)

Mark Your Calendars For Dropbox’s Arbitration Opt-Out!

By Lauren Harriman

Heads up—Dropbox just dropped a bomb during its most recent Terms of Service (TOS) and Privacy Policy update, and you need to take action! The update, which takes effect on March 24, adds an arbitration section to the TOS. If you prefer not to arbitrate, you must opt-out by completing an online form. While arbitration is a “quick and efficient way to resolve disputes,” and “provides an alternative to things like state or federal courts,” which can take “months or even years,” arbitration does not provide a record of the proceeding.

A record is crucial to developing common law. Common law is critical in an area of law, such as technology law, where legislation is severely lacking. Any Dropbox user legal complaint should have the potential to provide legal precedent for future disputes. Only complaints filed in the state and federal courts can provide that potential. Remember that arbitration means you will likely be hailed to Dropbox’s headquarters in San Francisco should you have a dispute. Dropbox users can opt-out of the arbitration clause now by signing in with their usernames and submitting their first and last names. So take a minute and opt-out of this drop-bomb.

Preventing the “Napsterization” of 3-D Printing

By Nicole Syzdek

Gartner, Inc., an American information technology research and advisory firm, reported that in 2013, combined end-user spending on 3-D printers will reach $412 million, up 43% from 2012.[1] This rapid increase in revenue for 3-D printing companies is not likely to slow down anytime soon. Gartner predicts that in 2014, spending will increase by 62%, reaching $669 million. The increase of 3-D printing has the ability to shake-up many areas of commerce.

3-D printers allow consumers to print three-dimensional objects at home. Although there are many competing designs for 3-D printers, most work in a similar way. The printing begins with a blueprint typically created with a computer aided design (CAD) program running on a desktop computer. CAD programs are presently utilized by many designers, engineers, and architects to model physical objects before they are created. Blueprints can also be created by using a 3-D scanner to scan an existing object in a similar manner in which a regular flat scanner can create a digital file of a 2-D image. Once the CAD is created, it is sent to the printer, which builds the object up, layer by layer, from tiny bits of material. (more…)

The Computer Fraud and Abuse Act: Current Coverage and Needed Reform

By Lauren Harriman

In 1984, Congress was facing a rapidly changing technological landscape. The world wide web was not yet available at the consumer level, but Internet use was growing quickly among universities. Law enforcement officers felt unprepared to handle what they believed would be “brand new” crimes of the Internet. Officers were not only concerned with domestic computer security threats, but international threats as well. Thus, in 1986, Congress enacted the Computer Fraud and Abuse Act (CFAA) to clarify the law surrounding computer-related crimes. However, the “brand new” Internet crimes that law enforcement feared and the CFAA meant to address were not entirely novel. In fact, the CFAA duplicated charges for several crimes already included in the Penal Code, simply providing prosecutors with one more tool to use in plea bargaining.

In plea negotiations, prosecutors are able to threaten law violators with extensive jail time if a settlement cannot be reached. This is especially true when prosecutors can charge violators under multiple statutes for the same crime. This plea bargaining tactic discourages the exercise of the right to a jury because violators are not willing to risk being found guilty of all charges. Aaron Swartz, prosecuted under multiple sections of the CFAA for excessively downloading documents from JSTOR over MIT’s network, fell prey to this tactic in 2012. Rather than face a sentence of thirty years in prison, Swartz committed suicide in 2013. His fate has united the Internet community in demanding for reformation of the CFAA. (more…)

The Judicial System: NSA’s Key Recovery Service

By Kennard Herfel

Among the global gossamer of controversies concerning the NSA revelations brews a key case involving Ladar Levison, the founder of the encrypted email provider Lavabit. Levison created Lavabit soon after the Congress passed the Patriot Act to preserve citizens’ privacy in online messages.

Last Tuesday, the Fourth Circuit Court of Appeals heard oral arguments regarding the legitimacy of the contempt order placed on Levison for not providing the FBI with the Secure Sockets Layer (“SSL”) key to Lavabit. SSL is security technology that encrypts the links between server, client, and browser. The SSL encryption by Lavabit was likely too elaborate for the FBI to decrypt; thus, the FBI’s SSL request.

When the feds can’t decrypt SSL, like that used by Lavabit, they customarily turn to other methods to obtain the desired information, such as using “backdoor” hardware installation or asking the company to disclose the information or turn over the SSL key. To the extend of public knowledge, a company has never refused to comply with a government request for encryption keys—until Lavabit. (more…)

Professor Files Infringement Suit Against Square, Inc.

By Laura Whiteside

Robert Morley, Professor at Washington University in St. Louis, recently filed a patent infringement claim against Jack Dorsey and Jim McKelvey, founders of Square, Inc. Square, a startup based in San Francisco, is responsible for the white plastic card readers that plug into the audio jack of mobile devices and are used to send and receive money electrically.

In the complaint, Professor Morley claims he was the original and sole inventor of the card reader. In 2008, Morley assisted McKelvey in creating a new business, and together they formed a joint venture along with Dorsey. Morley was cut out of the company when Dorsey and McKelvey incorporated. Square subsequently filed various patents that Morley claims used his insights and methods. Morley alleges that he planned to use the value of his patentable ideas to exchange for shares in the company. A court must now decide if Morley was an unfortunate victim or is simply making baseless allegations. Either way, Dorsey and McKelvey will undoubtedly keep riding the success of Square as it grows and transforms into a business that may replace the cash register and change the way large corporations process transactions.

As this lawsuit shows, founder issues can be a serious problem for startups. This is unsurprising given the fact startups are temporary organizations that make it their goal to grow—which might also mean growing out of some of their initial members. Discussions of equity splits, division of labor, and allocation of credit for ideas might not seem as pressing as creating an actual product. However, in order to avoid future litigation, it would be wise for new companies to determine these issues at the outset—before mere ideas ripen into successful billion dollar companies.

Battle of the Buttons: Pinterest Sues Pintrips Over Trademarks

By Noah Johnson

Pinterest has filed a trademark infringement suit against a startup called Pintrips in the U.S. District Court for Northern California. Pintrips is a small travel-planning startup that launched in 2012. Pintrips provides travel-planning services, such as flight tracking, where users “pin” routes they are interested in to monitor prices. The service contains a limited number of social network elements where a user can interact and share tips with others. Pinterest, on the other hand, is an Internet giant and currently the third largest social network by user count in the United States, behind only Facebook and Twitter.

Pinterest alleges that a number of Pintrips’ actions amount to trademark infringement. Pinterest’s first claim focuses on the prominently displayed “pin” button on both companies’ websites. The complaint alleges that “[a]n important element in Pinterest’s success has been the popularity of its PIN IT button,” which allows users to save content on the site. Pintrips has a similar button. The outcome of the case will reveal whether Pinterest can successfully lay claim to the “Pin” button. While not a ubiquitous feature of the Internet, the “Pin” feature is used in a variety of applications, such as Google Maps. Further, “Dropping a Pin” has become synonymous with letting your friends know if you are in a certain place while using certain apps. (more…)

CA Eraser Law: Sending the Wrong Message?

By Lauren Harriman

California’s new eraser law lets minors remove their posts from websites. But in a time where everything anyone posts is a google search away from being uncovered, is Internet erasability really something we want to teach the next generation? While I recognize that children need the opportunity to learn from their mistakes, should be we teaching them that the Internet is an acceptable place to make those mistakes? Rather than encouraging children to share every uncensored opinion though on Twitter, every bad outfit choice on Instagram, and every awkward dance move on Youtube, perhaps it’s better to instruct the young generation that the Internet is more like the podium at the school assembly rather than the note passed in class. I’m all for encouraging children to experiment, but perhaps that experimentation is best done at home, or at least in person, rather than in front of an Internet audience of over 1 billion people. Although the new law allows for the erasure of content, there is no way to erase it from the minds of the multitude of people who have already seen it.

Read more at: New California Law Lets Teen Press ‘Erasure Button’ Online

Google Fined $1.2 Million by Spanish Privacy Authority

By Emily Poole

Google has just been hit with a €900,000 ($1.2 million USD) fine, the maximum amount possible for violation of Spain’s data protection law. Google was found guilty of three distinct violations: (1) collecting users’ data, (2) combining users’ data from a variety of its services and (3) storing the data indefinitely, all without properly informing its users or obtaining consent.

Last year, privacy watchdogs from the 28 EU member states contacted Google, urging the company to amend its privacy policies to better align with the EU’s data protection principles. It appears that Google didn’t take the hint, however, as none of its privacy policies were revised after the notice.

Google has since responded in a written statement that the company is working with the Spanish authority to determine the next steps toward creating a privacy framework that will pass termpapersworld muster under Spanish law. Perhaps this week’s fine finally hit a nerve, though it’s more likely negative media attention is what actually struck a cord . . . what’s $1.2 million to a multi BILLION dollar conglomerate?

In the coming year, Google could also face fines in five other EU nations for similar privacy violations.

 

The EU’s Move Toward Stronger Digital Data Privacy

By Emily Poole

The European Union (“EU”) is in the process of strengthening its online data privacy laws, the far-reaching effects of which will be felt by any U.S. company or organization operating in the EU. The latest move toward implementation of the General Data Protection Regulation (“Regulation”) occurred in late October 2013, when the European Parliament approved certain amendments to the current draft of the legislation.

Right now, the 1995 Data Privacy Directive (“Directive”) regulates data privacy in the EU. It directs each of the twenty-eight member countries to create its own set of privacy laws that comply with the Directive’s seven principles: notice, purpose, consent, security, disclosure, access and accountability. Since the Directive only provides a framework by which countries are expected to abide, rather than imposing concrete regulations, privacy law in the EU is a patchwork of country-specific rules, with some countries implementing and enforcing robust privacy regulations and others creating laws that simply meet the minimum requirements of the Directive. (more…)

GoldieBlox Seeks Declaratory Judgment for Beastie Boys Parody

By Brandon Wiebe

GoldieBlox, a toy company that generated buzz this week when its recent online ad went viral, has filed a lawsuit in federal court seeking a declaratory judgment that its parody of the Beastie Boys’ song “Girls” constitutes fair use. The viral commercial shows three girls, bored of watching princess cartoons, build and unleash a Rube Goldberg machine in their house. The commercial is set to a parody of “Girls,” with the original lyrics replaced by more empowering lyrics in line with the company’s mission to get girls involved in science, technology and engineering.

The complaint in GoldieBlox, Inc. v. Island Def Jam Music Grp., 4:13-cv-05428-DMR (N.D. Cal. 2013) alleges that “the Beastie Boys and their label have lashed out and accused GoldieBlox of copyright infringement.” It is settled law that even commercial parody can constitute fair use. See Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). While money generated from a parody can weigh against a finding of fair use, it is only one of four factors weighted in fair use analysis. The defendants will likely seek to distinguish a parodic recording created as a single or part of an album versus one made as a background accompaniment to an advertisement.

Read more: http://www.hollywoodreporter.com/thr-esq/beastie-boys-threaten-creator-viral-659308

 

Secure Email: No Such Thing?

By Emily Poole

Encrypted email provider Lavabit, founded by Ladar Levison, closed shop last August after being ordered to give the U.S. government the SSL keys to the entire Lavabit website. With the keys, the government—appearing to only be after information regarding whistleblower Edward Snowden, one of Lavabit’s users—simultaneously obtained access to the content of 400,000 other Lavabit email users.

On October 10, 2013, Lavabit filed an appeal in the U.S. Court of Appeals for the Fourth Circuit, arguing that the government’s demand for the SSL keys was unconstitutional and in violation of the Fourth Amendment. The Department of Justice is meant to file a response brief later this month. (more…)

Aereo Versus the Nation’s Broadcasters

By Emily Poole

Aereo, a start-up that offers subscribers access to live or time-shifted broadcast television on Internet-connected devices for a monthly fee, is in the middle of legal battle that spans the nation. Rather than paying the broadcasters for the retransmission of their programs, Aereo simply re-transmits the signals to subscribers cost-free. The major broadcasting stations, seeking compensation for Aereo’s use of their signals, have filed multiple complaints alleging copyright infringement. The most recent complaint was filed by Nexstar, a company operating two stations in Salt Lake City, in a Utah federal court.

Read more at: http://www.deadline.com/2013/10/nexstar-slaps-aereo-with-second-utah-lawsuit-seeks-injunction/

IBM Claims Infringement as Twitter Prepares for IPO

By Emily Poole

At the same time Twitter announced that it will raise its IPO price range to $20-25 per share, it revealed the contents of a letter received from IBM. In the letter, IBM claims that Twitter is infringing on at least three of IBM’s patents. The wording of the letter, however, suggests that IBM is after a settlement agreement rather than a trial. Twitter, a company that owns just nine of its own patents—an anomaly in a field where most tech giants hold the upward of thousands of patents—appears ready to defend itself from the claim.

Read more at: http://techcrunch.com/2013/11/04/ibm-claims-twitter-infringes-on-at-least-3-of-its-patents-according-to-twitters-latest-s-1-update/

Patent Trolling on a Corporate Scale

By Emily Poole

A group of tech giants—Apple, Microsoft, Blackberry, Ericcson and Sony—have teamed up to file suit against Google over alleged smart phone patent infringements. The group, operating as Rockstar Consortium, spend $4.5 billion buying thousands of patents from the now bankrupt Nortel to use in the suit against Google. The complaint, filed in the Eastern District of Texas, alleges that Google has infringed seven of such patents.

Read more at:  http://arstechnica.com/tech-policy/2013/10/patent-war-goes-nuclear-microsoft-apple-owned-rockstar-sues-google/

Net Neutrality: A Thing of the Past?

By Emily Poole

The D.C. Circuit is poised to strike down the law upholding net neutrality—which could mean a major shift in the way the Internet operates. Net Neutrality centers around the belief that the Internet is for the public, that it is a free and open space accessible to anyone with an Internet connection. Net Neutrality means that Internet service providers cannot play favorites—they can’t discriminate between different types of online content, such as charging differently depending on the website or user, or offering different connection speeds based on how much a user is willing to pay. Without Net Neutrality, we run the risk of losing the freedom of the Internet—service providers will be able to charge for Internet access, granting better service to those with bigger pockets.

Read more at: http://www.wired.com/opinion/2013/11/so-the-internets-about-to-lose-its-net-neutrality/