Trademark Holders Beware of the Generic Curse

Trademarks are wonderful means for protecting your brand. You want your trademark to be pervasive and resonate in the minds of consumers. You want it to be apart of their everyday life! However, when a trademark becomes so common that it is used at the term for the item or service rather that the brand you run the risk of loosing your trademark because it is generic. Under the Trademark Act generic terms cannot be trademarks.  A generic term is a word that the relevant purchasing public understands primarily as the common name for a particular product or service.

What is kleenex?  If you said tissue, you’re incorrect it is actually a brand of tissue that has become so common it is often used as a generic term. Kleenex is lucky because the company fought and won to keep its trademark alive. However, there are a whole host of others that were not as lucky.  For example, escalator, originally a trademark of the Otis Elevator Company, or aspirin which is still a Bayer trademark name for acetylsalicylic acid in about 80 countries, including Canada and many countries in Europe, but declared generic in the U.S.

Recently the word “skew-ball” also came under scrutiny. Full Circle United, LLC (Full Circle) claims the word “skee-ball” is the common name for the game of skee-ball, which has been an American boardwalk and arcade pastime for over a century.  Full Circle, which organizes skee-ball competitions across the country, was sued by SBI, Inc., a manufacturer of skee-ball machines, and owner of the federal trademark registration of “skee-ball,” for infringement of the term “skee-ball.” Full Circle countered by filing its own complaint alleging that SBI has no rights in the word “skee-ball” because, just like many other marks that have come and gone, such as yo-yo, trampoline, and pilates, skee-ball is generic. This case is still being decided.

This phenomenon is hard to control because you want your brand to be popular but some ways to prevent genericizing a brand are:

A sign in a supermarket using "Jell-O" generically - Image from Wikipedia
A sign in a supermarket using “Jell-O” generically – Image from Wikipedia
  • Use the proper name for the good or service in conjunction with the trademark or brand name. For example, you’ll notice that Kleenex’s brand now reads “Kleenex brand Tissue”
  • Let the world know you have a registered trademark by using the appropriate symbols. Use the letter R enclosed within a circle, ® for federally registered marks and for an unregistered mark, use TM.
  • DO NOT use your trademark as a noun. For example: Put on a BAND-AID – NO! Put on a BAND-AID brand bandage – YES!
  • DO NOT use trademark as a verb or plural. Go XEROX the document – NO! Make a copy with the XEROX copier – YES! I need two Kleenexes – NO! I need two Kleenex tissues. – YES!
  • Police your trademark. Correct others misuse of your trademark
  • Educate the public especially authorized users, distributors, and anyone else consumers will believe have authority or knowledge about the brand.

Be proactive about preventing your brand from becoming a generic term. Although this phenomenon is a symptom of your success you want to avoid loosing your trademark

How Much of Your Data can Apple Hand to Law Enforcement?

We are all aware (or at least we should be) that our telecom providers are handing over our data to the police when necessary. Well have you ever wondered just how much and what it takes to get that data? iphone-privacy-2011-04-06-1302104043Apple posted their new guidelines describing what data the company can provide to law enforcement and the processes for requesting that data.

The document breaks it down into two basic types of data: information stored on Apple’s servers and information stored locally on iOS devices.  I have outlined the kinds of data and how they can be obtained in a chart below.

Essentially anything you’ve backed up to or stored on iCloud is available for Apple to provide to law enforcement, including connection logs and IP addresses you’ve used. Additionally a lot of the data associated with your Apple ID is available as well. Therefore, any information you’re providing Apple is available for them to pass along. This is something to consider when deciding if or what to back up on iCloud.  You may want to avoid backing up sensitive company data or private information on iCloud. Some information cannot be avoided, such as anything associated with your Apple ID.

Can they access data on my iOS device???

Yes. Apple can bypass security passcodes on our iOS devices to extract “certain categories of active data,” though it apparently cannot bypass that protection entirely. If provided with a valid search warrant, Apple can hand over SMS messages, pictures and videos, contacts, audio recordings, and your phone’s call history, but it can’t access e-mails, calendar entries, or information from third-party applications. Devices must be running iOS 4 or newer, must be “in good working order,” and must be provided directly to Apple’s headquarters along with an external storage drive twice the size of the iOS device’s internal storage.

Will I know if this is happening?

Maybe. The guidelines state that Apple will “notify its customers when their personal information is being sought in response to legal process except where providing notice is prohibited by the legal process itself.” Apple will also avoid notifying users if the company “believes that providing notice could create a risk of injury or death to an identifiable individual or group of individuals or in situations where the case relates to child endangerment,” though this is entirely up to Apple and not to the law enforcement agencies involved. These notification requirement will help prevent random and unfounded searches.

What is missing?

The policies and capabilities surrounding iCloud Keychain, iMessages and FaceTime calls are unclear and disputed. Apple claims iMessage & Facetime are encrypted but there is some speculation otherwise.

Is this unusual?

No, other tech companies have similar policies. For example, Google provides a similar “Transparency Report” outlining the types of data available to law enforcement. The notification policy is new and several other tech giants, including Facebook and Microsoft, have already indicated that they plan to expand their policies on notifying customers whose data has been requested by law enforcement

 

Where is the Data? Type of Data Means to Obtain Data Restrictions
Information stored on Apple Servers Data Associated with your Apple ID contact inormation obtainable with a subpoena or greater legal process
customer service records
transaction history both in store & online
iTunes gift card information
Data Associated with your iCloud Account connection logs & IP address used Any iCloud information that the user deletes cannot be accessed.
60 days of iCloud mail logs that “include records of incoming and outgoing communications such as time, date, sender e-mail addresses, and recipient e-mail addresses” e-mail logs require a court order or search warrant
any e-mail messages that the user has not deleted requires a search warrant
any other information that can be backed up to iCloud – As of this writing, this list includes contacts, calendars, browser bookmarks, Photo Stream photos, anything that uses the “documents and data” feature (which can include not just word processors but also photo and video apps, games, and data from other applications), and full device backups
Information stored locally on iOS devices SMS messages requires a search warrant – Devices must be running iOS 4 or newer, must be “in good working order,” and must be provided directly to Apple’s headquarters along with an external storage drive twice the size of the iOS device’s internal storage. Cannot access e-mails, calendar entries, or information from third-party applications
pictures and videos
contacts
audio recordings
phone’s call history

US to Relinquish Control of the Internet?

On Friday, the U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) announced it is giving up control of a system that directs Internet traffic and Web addresses. As a result, Internet Corporation for Assigned Names and Numbers (ICANN), the nonprofit organization charged with managing the Internet, is tasked to convene global stakeholders to develop a proposal to transition the current role played by NTIA in the coordination of the Internet’s domain name system (DNS). This announcement came as a surprise to many but a coalition of nations has been calling for the US to relinquish control of the Internet for at least the last nine months. Politically this takes the US out of the line of fire but practically what does this do for the culture of the Internet?

Why is this important to you? Because it may change the Internet as you know it….

What exactly was the US Doing?

NTIA is the Executive Branch agency that advises the President on telecommunications and information policy issues. NTIA’s programs and policymaking focus largely on expanding broadband Internet access and adoption in America. NTIA controls the DNS which essentially converts the web addresses (URLs) we type in to the search bar into the correct IP address to retrieve the website you requested. Whether you are accessing a Web site or sending e-mail, your computer uses DNS to look up the domain name you’re trying to access. This system is essential to the functionality and security of the Internet.

If not the US, then who?
This contract to control DNS has allowed the U.S. government to exert what some claim is too much influence over the Internet. technology that plays such a pivotal role in society and the economy. So if not the US, then who with the world feel comfortable wielding that power and influence?

There’s a meeting, ICANN 49, March 23 in Singapore and the future of the Internet is at the top of the agenda.

According to Lawrence Strickling, assistant secretary at the Commerce Department, “[The department] will not accept a proposal that replaces the NTIA’s role with a government-led or intergovernmental solution.” Does that leave ICANN or a similar organization to maintain the DNS?

Why should you care?
Because this could mean a very different Internet…

While companies like Verizon applaud the moveITIF and other organizations have argued before that U.S. government oversight has played an essential role in maintaining the security, stability, and openness of the Internet and in ensuring that ICANN satisfies its responsibilities in effectively managing the Internet’s DNS. Without the U.S. government’s presence some lawmakers and members of the tech industry have expressed concern that relinquishing control of IANA will open up the Internet to threats from other governments that seek to censor it.  This could mean a very different Internet.

Are their concerns justified? No one really knows right now but what we can surmise is that the Internet is in for some changes in the years to follow the change of control. Many countries have dealt with privacy and censorship in ways different from that of the US. How will ICANN deal with these conflicting views democratically and ensure Internet users from all economies and sovereign nations will be represented and heard? Will the standards of openness and free flow of information embraced today remain the baseline? Does the “global multistakeholder community” NTIA is referring to exist? What is the legal jurisdiction for both ICANN and this new multistakeholder body?

There are no answers to these questions because so little is known about whats to come. I look forward to the information and ideas that flow from the ICANN meeting next week.  The questions need to be among those at the top of the list.

Social Networking Online Protection Act: Will this Protect your Social Media Privacy Rights?

Representative Eliot Engel (D-NY) introduced the “Social Networking Online Protection Act,” H.R. 537 to Congress in February.  This bill would be the national version of the social media privacy laws popping up in states nationwide. Increasingly employers and other authority figures have asked employees and others to turn over their username or passwords for their personal accounts. State legislators began introducing legislation in 2012 to prevent employers, colleges, etc. from requesting passwords to personal Internet accounts—including email, banking and social networking sites—in order to get or keep a job or regulate student activity.

Unlike most of those state laws, the bill would also protect passwords to email accounts. Seven states, California, DelawareIllinoisMaryland, Michigan, New Jersey and most recently Utah, currently have social media privacy laws on the books prohibiting requesting or requiring an employee, student or applicant to disclose a user name or password for a personal social media account. California, Illinois, Maryland, Michigan, and Utah laws apply to employers. California, Delaware, Michigan and New Jersey have laws that apply to  academic institutions.

Will this bill solve the privacy issues that occur when an employer or academic institutions requires revealing your password for your personal account?

Limits must be set for how and when authority figures such as employers, coaches, professors, etc, can access private social media information. Anything made public by the user is fair game because that is the information they have elected to present to the world. Reputation and public persona are important to potential and current employers and university officials because that information can affect public perception of them.  Although our online image is important and can provide a lot of information about an individual, the information that’s private should be kept that way.  A private photo album on Facebook can be likened to a photo albums kept at home vs. photos you display at work or in a public album online.  Privacy is a fundamental right and should be preserved.

Lets take a closer look at a few key points of the bill…

Under the federal bill social networking is defined as:

“[A]ny Internet service, platform, or website that provides a user with a distinct account–

“(A) whereby the user can access such account by way of a distinct user name, password, or other means distinct for that user; and

“(B) that is primarily intended for the user to upload, store, and manage user-generated personal content on the service, platform, or website.”

Defining “social networking” or “social media” could be problematic with the discrepancy between the rate of evolution of social media and the rate of evolution of the law.  Maryland’s approach of  focusing on whether the circumstance at hand involves a user name or password, and leaves vague the nature of the account or service to which the user name or password relates might be better for keeping this law relevant long term.

The bill does specify that it must be a personal account preserving and employer’s interest in accounts the own or accounts operated by employees for business purposes.  Employees and students should be careful not to mix business and personal accounts. Accounts where the line between business and personal will be where the limits of this law are fleshed out.

Enactment of the law would curtail the need for more sate laws on the issue and provide uniform protect. Uniform standards make drafting policies a lot easier for employers and universities.  They also help users know the limits of their protection nationwide, there are no worries of where to bring a suit if you feel your privacy rights have been violated in this way.

Some wonder if this is a matter for federal law?  Well, I think the answer lies in the answer tot he question “Whose job is it to protect the privacy rights of American citizen?”

My answer to the question indicates that Congress is well with its bounds.  What do you think?

March Madness: Don’t let the fun harm your business…

March Madness is one of the biggest social events of the spring. We all create brackets and compete against our peers to see who can pick the winner! We attend a number of happy hours and parties to watch games while touting each point scored by your team of the evening.  

Well like the Super Bowl or the Olympics March Madness is a trademarked term and everyone needs to exercise care when using it. The mark is owned by a company partially owned by the NCAA. They are not extremely aggressive in protecting their rights, like the Olympic Committee, but when promoting an event, product or promotion it is a very important consideration.
 
This is not to say you cannot say or write the term March Madness but there is a right way and a wrong way to use it especially in conjunction with events and other promotions. This is a very nuanced distinction one that I will not venture to delineate. However, I will make the suggestion that it would be safer to stick to something  generic – like “it is tournament time again, and you can watch all the action at our Happy Hour this Thursday” – avoids any of the issues that might arise if you use the trademarked term in your commercial or advertisement.
 

Using March Madness in passing in your news, talk or entertainment programming is not going to get you into trouble. Trademark owners want the brand used and associated with the tournament. Trouble arises when using it as a branding term – trying to pass your station off as your “official March Madness station” or an advertiser suggesting that they were “the March Madness restaurant/Happy Hour” are much more likely to cause harm by trying to suggest an official connection between the product or service being sold and the trademarked term.

The issue is one of trademarks or service marks, not copyright. There is a copyright in the telecast itself, but the limitations on the right to use the name comes from trademark law.

 

Could a Senate Bill Mean Trouble for the Budget Conscious Fashionista and the “Trickle Down Trend”??

Designers have been vying for a way to protect the creativity and innovation reflected in their collections each season. The recent Louboutin v. YSL case is a great example. However, many designers are not so lucky.

BUT, do we as the consumer want them to be successful??? Don’t we want the looks shown on the runway?  But how many of us can afford them until they’ve been copied and changed slightly to appear at department stores and trendy stores?  Well that might be a new concern for the fashionista on a budget.

On September 20, the Senate Judiciary Committee approved Senator Chuck Schumer’s Innovative Design Protection Act., (the “IDPA”), sending the law to the Senate floor for consideration.

Fashion:District The Show
Fashion:District The Show (Photo credit: TPWP)

The IDPA would allow a fashion design to be protected for 3 years if it includes original elements of an article of clothing or accessory (such as a bag or eyewear), or an original arrangement of elements.  U.S. designers would be able to enforce their rights against a “substantially identical” design.  Will this eliminate the “trickle down trends” we all enjoy (I am copyrighting this term lol)??

While the definitions of these terms still leave a lot of room for interpretation, there are some clear parameters in place.  The provision would not protect colors (though some protection is available under trademark law) or graphics on fabric (though traditional copyright protection is available there).  Partial elements of an article, such as a sleeve, are outside the protection, since the legislation only protects the article as a whole.  Other exemptions are made for items that are the subject of independent creation; for copying of the design for home use; and by carve-outs for retailers, consumers, and third parties such as ISPs and search engines.  The IDPA would not extend protection to anything created prior to the enactment of the law.

The bill has garnered the support of the American Apparel and Footwear Association and the Council of Fashion Designers of America, but the California Fashion Association is still opposed to the initiative.  But how do you feel? I am extremely conflicted. As an attorney and a business woman I understand and support the desire to reward and promote innovation by providing protections for those spending their time and using their talents to create new items. However, as a fashionista and consumer I wonder how the industry will adapt. The “new hot thing” each season is just that because traces of it appear in most if not all new collections for the season. So that leads me to believe (or maybe I’m just hoping) that this will not be used as much as we fear or at least won’t be successful enough to deter or hinder the trickle down trend. It will really be beneficial to that stand out item that breaks the mold. Is three years too long to wait for its cheaper sister?

Fashionistas there is hope! We may not have to worry about how this will play out and affect our wardrobes just yet… Congress is busy and time is running short! Federal spending, revenues, the deficit and the national debt are presumably the issues which will garner the limited time and attention likely to be available between now and the end of the session.

Lets watch this one…

Let me know what you think!