Mexico becomes third Latin American country to join the Madrid trademark filing system

December 4, 2012

Mexico

In June I posted about Columbia’s accession to the Madrid Protocol and noted that Mexico was taking steps to follow suit. Late last month Mexico’s Secretary of Economy deposited documents completing the country’s accession to the Madrid Protocol for the International Registration of Marks with the World Intellectual Property Organization, bringing to 89 the total number of members of the international trademark filing system. The treaty will enter into force in Mexico on February 19, 2013. As regular blog readers know, the Madrid System for the International Registration of Marks offers trademark owners a cost effective, user friendly and streamlined means of protecting and managing their trademark portfolio internationally. Spanish was introduced as a working language of the Madrid system in 2004 and Mexico becomes the fourth Spanish speaking country in the Madrid system. Among the other Spanish speaking nations is Cuba which was the first country in the Latin American region to accede to the system, a step it took in 1995.

New Zealand became the 88th nation to accede to the system in October of this year (effective starting on December 10, 2012) with the curious exclusion that trademark registrants that designate New Zealand via the Madrid Protocol will not have the protection of their marks extended to the tiny island territory of Tokelau (population about 1400) although a domestic New Zealand trademark application does extend to the island. The Philippines joined the system in April bringing to 4 the total number of additions this year to 4.
Written By Christopher F. Lonegro Comments (0)
Categories: Trademarks Tags: , , ,

Facebook gets a new groove: proposed updates to privacy and use policies

November 25, 2012

I guess we of Facebook Nation no longer “think” as one.  Last week Facebook announced proposed changes to its Data Use Policy (explains collection and use of data) and Statement of Rights and Responsibilities (terms of use).

As of November 28, Facebook will be able to change its policies with seven days notice to users. No more voting. In the past, voting on changes allowed some users to flood the system and obscure other user’s input. Will the proposed changes offer more transparency or enhance user’s experience?

The Data Use Policy is slowly becoming less opaque but still obscures some collection methods. For example, the Data Use policy does not explain how the Facebook “Like” button on third party sites may collect about our activities on each website we visit after “liking” a site and then share data with affiliates who serve targeted ads elsewhere.

Will the proposed changes affect businesses and marketeers using Facebook for corporate events, product launches and brand communications?  While the proposed changes do not seem to affect developer and marketing activity, empowering consumers with privacy settings could curb the digital love.

Everything needed to “understand” Facebook’s new moves is here.
Written By Cynthia Sanders Comments (2)
Categories: Internet, Privacy, Privacy Policy, Social Media, Terms of Use, Website Policies Tags:

Is Software Patentable?

October 10, 2012

We may soon have an answer to that question. By “soon” I mean probably sometime in the next two years. By “answer” I mean we will have the en banc opinion of the Federal Circuit in the case of CLS Bank v. Alice Corp.  Yesterday, the Federal Circuit granted CLS Bank’s petition for rehearing and vacated the panel decision issued by the court in July.  Briefing by the parties and likely by a host of interested third parties will begin immediately but oral arguments will not be scheduled until 2013. Perhaps anticipating the private sector’s broad interest in the issues to be considered, the court waived the usual requirement for third parties to obtain leave of the court before filing an amicus brief and specifically invited the United States Patent and Trademark Office to state its views. In addition to the issues considered by the panel, the full court determined to consider:

a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea? and

b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

At the district court level, Alice Corp. asserted four patents that cover a computerized trading platform for exchanging obligations in which a trusted third party settles obligations between a first and second party so as to eliminate “settlement risk.” The district court granted summary judgment of invalidity based on a finding that the patents claimed ineligible subject matter and Alice appealed.

Reversing the lower court, the Federal Circuit panel majority held that a claim must not be deemed to be directed to patent ineligible subject matter under § 101 if, in view of all of the claim recitations, it is not manifestly evident that the claim is directed to an abstract idea. Alternately stated, Judge Linn wrote that “unless the single most reasonable understanding of the claim is that it is directed to nothing more than a fundamental truth or disembodied concept with no limitations in the claim attaching that idea to a specific application,it is inappropriate to hold that the claim is directed to a patent ineligible “abstract idea” under 35 U.S.C. § 101.”

The majority then applied what was quickly dubbed the “nothing-more-than” standard and, after criticizing the district court for looking “past the details of the claims” to characterize them fundamental concept that are patent ineligible, looked closely at the claims themselves. In doing so, the majority concluded that Alice’s patent claims “appear to cover the practical application of a business concept in a specific way” which requires computer implemented steps that “play a significant part in the performance of the invention.” This, in the eyes of the majority, is enough to clear the apparently low bar set by § 101.  Judge Prost wrote a strong dissent arguing that the majority had improperly ignored Supreme Court precedent providing that limiting the use of a claimed formula to a particular technological environment or adding purely conventional or obvious pre-solution activity was insufficient to render an abstract idea patentable. We will have to wait and see if the full Federal Circuit gives Supreme Court precedent more weight.
Written By Christopher F. Lonegro Comments (0)
Categories: Patents Tags: , ,

Collecting children’s data without their parents’ permission earns the FTC a cool $1M fine from Bieber Fansite

October 5, 2012

Websites should consider treating children as an attractive nuisance. Even consider putting up fences to keep them out. 

The FTC is monitoring many websites that attract children (even unintentionally) for COPPA violations. The Children’s Online Privacy Protection Act, COPPA, requires websites to  obtain verifiable parental consent before collecting personal information from kids under age 13.  Sites that are “directed” to such children must also disclose to parents what it collects about their children, how it uses the information and what it discloses to third parties. If the websites do not comply with COPPA the Federal Trade Commission may investigate, and impose fines and consent orders to curb websites’ tracking of children under 13.

Many website policies include a disclaimer that the website is “NOT directed” to children under age 13 and prohibit or limit access by children under 13 only with direct parental supervision.  Unfortunately, these policies will not limit the liability of a website operator if it knows kids under 13 are providing personal information to its website.  Then, the website is likely to be considered to be directed to such children.  If a website operator knows that kids are attracted to its website, then the website must comply with COPPA as if it the website is intentionally directed to children under 13.

Artist Arena manages fan sites for Justin Bieber, Rhiannon and Selena Gomez (among others)  together collected personal information from more than 25,000 children under the age of 13 without seeking verifiable parental consent.  Artist Arena’s fansites were intentionally directed to ‘tweens as the target audience of the celebrities featured on its fan sites and had COPPA policies, but failed to actually notify the parents and obtain their permission before collecting info from their children.  Artist Arena settled with the FTC, agreeing to pay a cool million dollars, enter into a consent decree against future  COPPA violations, and destroy all data it unlawfully collected from children.

The take-away?

Kids are adept at learning new technology and have unfettered access to smartphones, tablets and desktop computers.  So, it goes without saying that many registration schemes aimed at preventing kids from accessing an attractive website are quickly overcome.  A policy prohibiting use by children is definitely not sufficient. Operators of interactive websites (sites with blogs, forums, comment and sharing features) can’t ignore kids under 13 who are using the site .  Their data stream will likely “rat them (and the operator) out.”  With notice of kids, the operator must either block access or adopt a COPPA policy and enforce it. Get the COPPA FAQ’s  here.

As for Beiberfever.com? Users who admit to being age 13 or younger are persistently blocked from registering:

We are sorry, but you can not register at this time.

Hat/Tip to Sharon Snyder for sending me this Washington Post article about Artist Arena’s woes.
Written By Cynthia Sanders Comments (0)
Categories: COPPA, Federal Regulations, Internet, Privacy Policy, Terms of Use, Website Policies Tags: , , , ,

A Divided Court on Divided Patent Infringement

September 25, 2012

The Federal Circuit’s recently issued decision in the cases of Akamai Technologies, Inc. v. Limelight Networks, Inc. and McKesson Technologies, Inc. v. Epic Systems Corp. received less attention than its importance might have warranted, perhaps because Apple’s win over Samsung in the patent litigation between the Smartphone giants occurred at about the same time and soaked up all of the media’s appetite for patent news, or perhaps because the implications of the decision are not apparent from a casual perusal of the decision. The decision has significant implications for many industries and particularly those in the business of developing and implementing multiparty data and communications systems and software and those based on related business methods. Here’s why. Read More »
Written By Christopher F. Lonegro Comments (0)
Categories: Patents, Uncategorized Tags: , , , , ,

Can a celebrity’s post mortem right of publicity enter the public domain?

August 22, 2012

Banking on a dead celebrity’s right of publicity being public domain is an extremely dangerous advertising practice. Rights of publicity are a suite of legal rights that have developed from invasion of privacy and trademark law since the early 20th Century. There is a web of state and federal laws that can protect dead celebrities– even celebrities from states like New York that specifically do not recognize a post-mortem right of publicity. And the laws can protect rights of publicity for as much as 100 years after death.

As a young lawyer, a common task was determining which state laws apply to a dead celebrity so to determine whether his or her name or image could be used for free.  The analysis is extremely detailed. Which law applies, New York (no protection) or California (broad protection)?  Does the use violate the celeb’s trademark or constitute a false designation under federal law?  An article in Slate today made some stunningly dangerous over-simplifications about how a dead celebrity’s persona is protected.

In my entertainment and sports law seminar, we spend a few classes examining the various ways of protecting a persona. A right of publicity protects the commercial value of a celebrity’s persona. A 1941 Texas case involving Davey O’Brien is my hands down favorite for explaining the basis for protecting a celebrity’s right of publicity. The Texas court gets the analysis wrong, and a dissent by Justice Holmes provides the foundation for modern ROP laws.

All American and Heisman award winner Texas Christian University quarterback Davey O’Brien Read More »
Written By Cynthia Sanders Comments (0)
Categories: Advertising, Entertainment, public domain, Rights of Publicity, Trademarks Tags: , , ,

@FTC: Google pays $22M for (unintentional) misrepresentation of privacy practices – no intent required

August 17, 2012

The FTC hosted a super fascinating Twitter “conversation” following its announcement of the $22 million settlement with Google over its privacy violation in overriding the Safari browser’s privacy settings without notifying users. FTC Department of Enforcement staffers  exchanged tweets with a few privacy-focused Twitter users. Many tweets focused on whether Google intentionally deceived users as to its privacy practices, or if the privacy breach was an accident. Other tweets keyed in on how Google’s fine was calculated, and asked when the FTC first learned of Google’s secret Safari tracking. The FTC responded that Goggle’s intent is irrelevant to the question of whether there are misrepresentations in privacy policies. This reflects FTC precededent. One FTC tweet reflected cynicism that the tech giant is unable to control its privacy practices, saying  ”unintentional is Google’s story.”

The takeaway is that over promising protection of personal data in a privacy policy is a bad idea.  Even accidental violations of a privacy policy are actionable. Too many unforeseeable risks are poised by collecting and sharing user data (from hackers to a lack of coordination with technology partners) to make such promises. Ask Twitter about its own FTC settlement.  Expectations (of both consumers and regulators) about the content of privacy policies have changed. Most websites need new policies that contemplate the changes to COPPA,  increased expectations for privacy disclosures for mobile devices and protection of offline data.  Website operators must understand how their technology use the website’s customer data. Details about how both personally identifiable and non-personally identifiable information is collected, shared and protected should be disclosed.

Tweeps who engaged with the FTC last week might wonder how their tweets are being used.  The FTC’s privacy preactices are disclosed in the FTC’s Privacy Impact Assessment and chart showing how user information is collected when interacting with the FTC.
Written By Cynthia Sanders Comments (0)
Categories: Advertising, COPPA, Internet, Privacy, Privacy Policy, Social Media Tags: , , , , ,

Children and Digital Advertising Collection Practices: FTC to issue new COPPA Rules

August 1, 2012

Does your website have a Facebook “Like” button? Is your website, mobile site or mobile app directed at adults but attracts children under age 13?  Pull out your pens.  The Wall Street Journal reports that today FTC is expected to issue new rules proposed last fall to protect children online and on mobile devices. The new rules take effect following  a 30 day comment period.  Take a minute to compare your website audience and information collection practices to the disclosures made in your website terms of use and privacy policy. There are often gaps and mismatches in even the most well meaning policies.  For example, a “Like” button on your website collects and reports a stream of data about your visitors to Facebook – whether they “Like” your website or not.  Is that what your privacy policy discloses?

How about children? How often have you seen kids using tablets and smartphones while their parents are busy? How many younger ‘tweens have their own smartphones? Many children, even very young ones are quite adept with mobile devices.  My secretary’s almost-two-old grandchild already knows how Read More »
Written By Cynthia Sanders Comments (0)
Categories: COPPA, Federal Regulations, Internet, Social Media, Website Policies Tags: , , ,

Turning Lemons into Lemonade: How one Trademark Owner Protected its IP and Avoided being Branded a Troll

July 31, 2012

That old saying seldom rings more true than it does with the recent cease and desist letter sent out by Jack Daniel’s. It seems that Patrick Wensink, an author, used a cover for his book that was quite similar to the trademarked label of Jack Daniel’s. Rather than send him a scalding and legalistic attack letter, Jack Daniel’s chose to respond politely, going so far as to say that Jack Daniel’s was “flattered by [Wensink’s] affection for the brand” and offering to pay the costs of redoing the cover if Wensink chose to do so prior any reprinting of the book (but not demanding that Wensink do so). Wensink was so impressed that he posted the letter on his website, along with the following comment: “What follows is, perhaps, the most polite cease and desist ever written. If it wasn’t signed by some lawyer, I’d imagine ol’ Gentleman Jack penning it himself, twirling his bushy mustache.” The polite approach, being a quite atypical response, caught the attention of more than a few netizens, and the story went viral. As a result, instead of creating bad blood with a heavy-handed response to an underdog unknown author, Jack Daniel’s has secured the kind of publicity that money simply cannot buy. As of this writing, a Google search for “Jack Daniel’s polite demand letter” yielded 141,000 hits from all over the world, with the feel overwhelmingly positive.

The way this turned out really shouldn’t have been such a surprise. As Barbara Streisand taught us, Read More »
Written By Jonathan Holda Comments (0)
Categories: Copyright, Fair Use, Trademarks, Trolls Tags: , , ,

Fair use? Remixing campaign videos and avoiding copyright trolls

July 17, 2012

When faced with a witty attack ad, nothing is faster and more effective than responding with remixed campaign video.  But don’t forget the details. In the heat of the remix battle, copyright infringement seems the least of your worries but a well planned DMCA take-down notice from a copyright owner can shut your opponent’s remix down. 

Romney’s camp posted a remix of Obama singing Barry White’s “I Am So in Love with You” in response to an Obama ad with a Romney’s Greatest Hits theme. BMG used a take-down notice to block access to Romney’s ad and his team claimed fair use according to HuffPo.

Getting a synch license and a master use agreement before the ad is posted is a preventative measure that will keep your media streaming. Sending a counter notice that your remixed political ad is fair use is possible, but the internet services provider must wait 10 days before restoring the video.  By then, the campaign is on to other matters.  

Courts have found that a DMCA take-down notice is made in bad faith in fair use situations. By the time a courts rules, though, the campaign could be over. It is easier and a best practice to license the use.

/Hat tip to Rachel Johnson.
Written By Cynthia Sanders Comments (0)
Categories: Uncategorized