3.31.2016

5 Things To Do in Your Annual Trademark Review


You've done the hard part in registering your trademark and getting it approved. You're also using it in the public market. But you should make a habit of reviewing your trademarks each year and check for the following:

  1. That all of your registered marks are in order and up to date and that you register any with the USPTO that are not.
  2. That you have been using your registered marks. Determine whether they have value and consider how you may use them more and better.
  3. That the ownership information on file at the USPTO is correct. This is especially important if there has been a change in ownership through a merger and acquisition or some other type of business transaction.
  4. That the mark you currently use has not been altered or changed from the mark on file. Otherwise you need to update your file with the modified mark.
  5. That you have a collection of samples demonstrating your use of the trademarks.
If you have questions or want guidance on how to protect your trademarks, contact me at danny@djimlaw.com.

Cuban Trademark Protection: Is Now The Time?

by Chase Webb  | McAfee & Taft
Recent relaxations in travel restrictions and talks to end the economic embargo the United States has imposed on Cuba for more than 50 years have increased interest in the Cuban market. With its close proximity and 11 million consumers longing for U.S. products, Cuba offers enticing new possibilities. With that new market comes the need for trademark protection to prevent unauthorized third parties trading off of the goodwill of U.S. companies. Because Cuba is a “first to file” country, seeking trademark protection through registration in Cuba should be done sooner rather than later.
A “first to file” system allows the first party to file for trademark registration to obtain exclusive rights in the underlying trademark, which is different from the use-based system in the U.S where a party obtains rights through actual use, regardless of who registers first. Cuba’s type of trademark system allows for “squatters” to register numerous brand names without having to ever use them. Not only can squatters produce products and sell them under a U.S. brand name in Cuba, any registrations held by those squatters can pose obstacles to “real” trademark holders. The first avenue for preventing such problems is for U.S. companies to be proactive in seeking trademark protection.

Cuban trademark registration process

Trademark registration in Cuba is relatively easy and reasonably priced in comparison to the challenges of trying to retrieve a trademark from an unauthorized third party. There are two ways a U.S. company can register in Cuba: (1) since the U.S. is a member of the Madrid Protocol, if the company has an international registration or application, they can designate Cuba for extended protection; or (2) companies can file through local Cuban counsel with the OCPI, Cuba’s Intellectual Property Office. U.S. companies have some breathing room with regards to actual use. Cancellation proceedings for nonuse cannot be petitioned for three years after the filing date, giving companies a three-year window to evaluate whether they want to enter the Cuban market and/or see how the U.S.-Cuba embargo talks evolve. Both filing options offer time to strategically decide whether or not to enter the Cuban market at a relatively low cost.

Combatting trademark squatting in Cuba

So what can a U.S. company do if a squatter has registered its brand name first? Cuba is a party to international agreements that offer some protection to unregistered, but well-known marks, though the embargo may make it difficult to prove that a mark is “well known” in the Cuban market. However, a squatter’s application or registration can be opposed or cancelled if the squatter merely had knowledge of the company’s brand name in the U.S. before filing. Finally, the squatter’s trademark application could be opposed based on it infringing another’s copyright, so brand owners may be able to seek copyright protection of some brands that contain copyrightable subject matter, like graphics, in order to combat an unauthorized trademark registration.
As the U.S. and Cuba continue to normalize their relations, U.S. companies should consider the relative ease and reasonable price of registration in Cuba to prevent the headache of reclaiming their brands from squatters. Keep in mind that the Cuban registration process is lengthier than the U.S. and that the increasing attention the U.S.-Cuba talks are getting may create an influx in applications that will slow the process further. U.S. companies should seriously discuss and consider protecting their trademarks in Cuba now.
For more on trademarks, contact.

3.23.2016

Finding Some Additional Issues While Fundraising


by Seth Popick
This post originally appeared on JD Supra.
So, your start-up had some difficulties raising money from venture capital funds and you think now it is time to gain access to a broader group of potential investors. Hiring a finder is a great way to tap into a larger investor-base since a finder already has a relationship with many investors. But using a finder comes with several additional legal concerns. Before you hire a finder, be sure to discuss the following issues with your legal counsel.
Should your finder register as a broker?
Under federal securities laws, in certain instances finders may be required to register as “brokers” with the Securities and Exchange Commission (“SEC”), and also join a self-regulatory organization (“SRO”), such as the Financial Industry Regulatory Authority (“FINRA”). A finder falls within the definition of “broker” if it engages in the business of effecting transactions for the account of others. The SEC looks to the following activities to determine whether a finder is engaged as a broker:
  • Compensating the finder based on the outcome or size of the transaction (a “success fee”) rather than compensating the finder for services regardless of outcome.
  • Soliciting investors by actively promoting the stock (and not merely opening up its address book).
  • Negotiating the terms that apply to the security your start-up company is offering for sale.
  • Executing the transaction by drafting or distributing sales or financial materials.
  • Handling the securities or funds of investors in connection with the securities transaction.
  • Frequently effecting or facilitating securities transactions.
The SEC may determine that a finder is a broker if any of these factors apply to the finder’s fundraising efforts. Additionally, applicable state securities laws may define “broker” differently and may impose additional requirements.
If your start-up company engages an unregistered broker to sell securities, investors may have a “rescission right” – meaning investors may recover their investment from your start-up company – and your start-up company may be barred from relying on Rule 506 of Regulation D for future exempt securities offerings. The broker may also be barred from collecting its finder’s fee, subject to cease and desist orders from the SEC, and be subject to civil or criminal penalties.
Can a finder impact the securities exemption you plan to use for the financing round?
Yes! As we discussed here, Rule 506(b) of Regulation D provides issuers, such as start-up companies, with a safe harbor under the private placement exemption of the federal securities laws. Generally, Rule 506(b) permits an issuer to sell securities to an unlimited number of accredited investors (and up to 35 non-accredited investors) if the issuer does not engage in general solicitation or advertising and provides required information to non-accredited investors.
Additionally, the SEC forbids companies from relying on Rule 506(b) if the issuer or certain other interested parties, including any finders that will be paid (directly or indirectly) for soliciting investors, are “bad actors.” In Rule 506(d), the SEC lists several acts that will result in a “bad actor” determination. Several of the acts listed under Rule 506(d) may apply to finders, such as an order by the SEC entered pursuant to sections 15(b) or 15B(c) of the Securities Exchange Act of 1934 (which apply to brokers) that (1) suspends or revokes such person’s registration as a broker, (2) places limitation on the activities, functions or operations of the broker or (3) bars such person from participating in the offering of any penny stock. If any of the acts listed under Rule 506(d) apply to the issuer or one of the interested parties, to proceed with the transaction the bad actor will have to obtain a waiver from the SEC. If a waiver is not obtained by the bad actor, the issuer may not rely on the exemption until the issuer or related party is no longer a bad actor.
As we mentioned in our discussion of Rule 506(b), many issuers will undertake due diligence efforts to ensure that the issuer and its officers, directors and large stockholders are not bad actors. Most issuers fulfill this obligation by sending out a brief Rule 506(d) questionnaire. When an issuer engages a finder, the issuer may want to enhance its due diligence efforts with respect to the finder by also reviewing the websites of the applicable SRO or state securities agency for any violations. FINRA’s BrokerCheck provides a full report about each broker that is registered with it, including most relevant legal violations. It is important to search each entity and individual who will be involved in offering securities offering for bad actor violations.
What kind of information should the finder provide to investors?
Since the investors identified by a finder may not be familiar with you or your start-up company, it is important to provide a detailed description of your start-up company in a private placement memorandum. Generally, this document will contain a detailed description of the company’s history, business plans, financial statements, potential risks to the company and investors (or “risk factors”), use of proceeds from the financing, a description of the securities and the manner of sale. Sometimes the finder will create a special purpose vehicle (“SPV”) that will invest directly in your start-up company and the finder will sell interests in the SPV to its investors. Before agreeing to this structure, you should talk to your legal counsel regarding additional disclosure regarding the SPV.
The securities laws require that the private placement memorandum, or any other written materials or presentations, do not contain any false or misleading statement of materials facts or contain any omissions of material facts. You should have your legal counsel review all offering materials before they are sent to investors.
Are there any other business or legal concerns?
During the closing process, a registered broker will have to complete certain documentation for compliance with their SRO’s requirements. This administrative process must be completed properly and may delay closing the transaction if the documentation is not properly completed by the broker’s staff.
Raising money with a finder also provides a different business opportunity than raising money from a venture capital fund. For example, following a fundraising transaction, venture capital funds will often appoint a director to your start-up company’s board of directors. A director can advise you as your start-up company executes on its business plan. Additionally, venture capital funds can introduce business opportunities and provide resources that you could not otherwise access. In comparison, once a finder completes fundraising, your start-up company will have a larger, more widely dispersed stockholder-base. Since the investment amounts from each investor are relatively small, the investors may not be similarly motivated to counsel your start-up company.
*****
Selling securities with a finder has many advantages, chiefly access to new sources of capital, but prior to hiring a finder it is important to consider the additional legal and business constraints that apply to this type of fundraising.


3.16.2016

The man who sold the world: Bowie, bonds and IP securitisation

 by Edward Chalk

This post originally appeared on DLA Piper.

The loss of David Bowie at the start of this year prompted much discussion of his musical legacy, but less well-publicised was his contribution to finance.

In 1997, rather than renew a long-term record label contract, LA banker David Pullman convinced Bowie to securitise the rights to receivables from his back catalogue into what quickly became known as "Bowie Bonds". Paying 7.9% over ten years (compared to 6.4% from comparable US treasury bonds at the time) the US$55 million issue allowed Bowie to buy out an old manager who retained a large stake in his songs. Fans who hoped to own a piece of Ziggy Stardust were disappointed, however, as the entire issue was sold to Prudential Insurance.
Bowie's move, as so often, was prescient. Whereas mortgages had been packaged into financial instruments since the 1970s, the Thin White Duke was the first musician to use future royalties to underpin a bond. Other big names including James Brown, Marvin Gaye and even Iron Maiden soon followed suit, forming part of a new wave of securitisations in the early-to-mid 2000s backed by ever-more innovative income streams.
Another such front-runner in this burst of IP securitisation was the film industry. Studios have always sought to reduce their exposure to the volatility of box office performance, and securitisation provided a means of shifting some of that risk onto the credit market, with studios issuing an aggregate par of more than US$14 billion in film-backed bonds between 2005 and 2010. The bonds were funded by rights to a portion of the revenues from a slate of upcoming films, often supported by a library of older movies whose long-term income from channels such as pay-per-view and merchandising were more established.
Film bonds, however, demonstrate an issue common to a number of forms of IP securitisation, including music royalties, in that as an operating or future flow asset (as opposed to a financial asset such as an auto loan) they are especially dependent on the ongoing input of the collateralising IP’s creator. Whereas Ford, having provided the initial finance, has little direct control over whether borrowers ultimately pay for their Fiestas, a major studio often controls almost every element that determines a film’s financial success – from pre-production budgeting right through to free television distribution some five or more years later.
This degree of control allowed for a gradual divergence of interests between investors and studios, which eventually caused film bonds to lose popularity. Paramount’s US$300 million 2004 bond was the first to be issued unwrapped with a Moody’s rating of less than Aaa (Baa2 in this case), and as the popularity of such products increased, further risk was transferred to investors whose acceptance of such was due in no small part to the perceived glamour of the industry. The reimbursement of often uncapped studio costs – especially the notoriously expensive and malleable "P&M" (Prints and Marketing) – moved above bondholders in the payment waterfall. Doubts also arose over revolving structures which committed investors to buying those of a studio’s films which met given criteria such as budget or age rating, with a perception that filmmakers were tailoring the most attractive blockbusters to fall outside those profiles whilst plucking turkeys to fit. This problem was exacerbated because whilst most other securitisations might include performance triggers that terminate further funding of assets when early purchases underperform, reverting to a rapid payment waterfall, with film this made mezzanine and equity debt too difficult to sell. The result was that when, following a film’s underperformance, senior debt holders wanted to stop funding new movies and take advantage of the protection of mezzanine and equity debt, those junior investors would instead push to acquire as many new rights as possible in the hope of financing a success. The most recent securitisations, such as last year’s US$250 million issue by Miramax (the company behind hits such as Pulp Fiction and Shakespeare in Love) have tended to try to avoid these issues by focusing on film libraries rather than upcoming slates.
Similar problems of misaligned interests are evident with Bowie, who issued his bonds whilst simultaneously predicting the death-by-Internet of the copyright systems that underpinned them. "Music," he told the New York Times, "is going to become like running water or electricity". Two years later, 1999 saw the music industry’s global revenues peak at US $39.7 billion. That summer, Sean Parker and Shaun Fanning launched Napster. By 2004 piracy and a shift in consumer tastes from HMV albums to iTunes singles prompted Moody’s to downgrade the bonds from A3 to Baa3. By contrast Bowie had already, in his words, turned to face these strange changes and was using some of the proceeds of his issue to invest in an Internet service provider and online banking platform, whilst focusing his musical efforts on the remaining reliable revenue stream – live performance (the receipts of which were not included in the bond).
Few music royalty-backed securitisations have followed the initial flurry after Bowie Bonds, partly because of the issues already covered, but also because few musicians have the back catalogue to sustain repayments. Those that do – the Beatles, for example – rarely enjoy straightforward ownership of the rights involved. More success has been found in financing the receivables of the rights of the songwriter (the other major right besides the musician’s in a piece of music), as these are more often owned directly. However, ownership issues have impeded attempts to securitise IP receivables from a variety of popular sources, for example sports stars whose image is often tied to a range of sponsorship deals. Added to this more recently is a tighter regulatory environment, with some even seeing Bowie Bonds as emblematic of the appetite for ever-more exotic structures that eventually fed into the financial crisis. Evan Davis, the BBC’s economics editor and presenter of Newsnight, has even suggested (tongue only partly in cheek) that David Bowie caused the Credit Crunch.
Despite these setbacks, some financiers continue to look for ways to adapt such securitisations for the next credit cycle. A San Franciscan company has demonstrated that tradable sports star-backed securities can work on a small scale, whilst securitisation has even been mooted as a solution to student debt, where students would sell rights to their future earnings in return for upfront payments to cover their education. As a means of diversification, where performance is not directly linked to the financial markets, variations on Bowie’s idea continue to capture investor interest.

3.11.2016

EEOC Issues New Fact Sheet for Small Businesses Regarding Anti-Discrimination Laws

Provides User-Friendly Overview of Federal Anti-Discrimination Laws in 30 Different Languages
WASHINGTON - The U.S. Equal Employment Opportunity Commission (EEOC) issued today a new simplified, one-page fact sheet designed to help small business owners better understand their responsibilities under the federal employment anti-discrimination laws.
The "Preventing Discrimination is Good Business" fact sheet provides a shortened, user-friendly overview of the legal obligations of small businesses under the anti-discrimination laws.  It also provides information about other EEOC resources available for small business owners.  It is being made available in 30 different languages to respond to the large number of small businesses across the country started by immigrants whose first language is not English. It will be posted on EEOC's public website at http://www.eeoc.gov/eeoc/publications/ and also distributed by the 53 EEOC offices nationwide as part of the agency's continuing outreach efforts to small businesses across the United States. 
The fact sheet is a product of EEOC's Small Business Task Force led by Commissioner Constance S. Barker. Commissioner Barker launched the Task Force in 2011 to address the need to provide small businesses ready access to plainly written, easily understood information, through the use of the internet, social media and other sources.  It is focusing on the needs of startups and companies that are too small to afford human resource professionals or lawyers. The small business fact sheet is the first in a series of products the Task Force is in the process of developing.  The Task Force is also working on producing a series of short You Tube videos designed to provide quick, easy answers to questions often asked by small business owners.
"I am pleased to work with Commissioner Barker and the Small Business Task Force to provide crucial information to small business owners to assist them in complying with our workplace anti-discrimination laws," said EEOC Chair Jenny R. Yang. "The Task Force is working to ensure that small business owners have the tools they need to ensure equal employment opportunity in their workplaces."
"Startups and other small businesses continue to play an integral role in the strength of our nation's economy," said Commissioner Barker.  "It is our responsibility at EEOC to help businesses understand their legal obligations under the complex and ever-changing federal employment discrimination laws and regulations. We want small businesses to be able to quickly and easily access the information they need to comply with the laws.  That way, they can focus their time and efforts on growing their businesses, and creating new jobs."
The fact sheet is available in the following languages:  Amharic, Arabic, Bengali, Burmese, Chinese, English, French (Canadian), French (European), German, Greek, Haitian Creole, Hindi, Hmong, Japanese, Karen, Khmer, Korean, Laotian, Marshallese, Nepali, Polish, Punjabi, Russian, Somali, Spanish, Tagalog, Thai, Ukrainian, Urdu, and Vietnamese.  The fact sheets are available on EEOC's website at http://www.eeoc.gov/eeoc/publications/.
by U.S. Equal Employment Opportunity Commission (EEOC)
EEOC enforces federal laws prohibiting employment discrimination. Additional information about the Commission is available on its website, www.eeoc.gov.

3.09.2016

Make Sure YOUR Work-for-Hire Clauses Protect Your Intellectual Property

You want to make a film, develop software or, in general, start a business that requires the people working for you to create works that have intangible value and are copyrightable. How do you ensure that you and your company retains the copyright to the work instead of the people you hired to create it?

The answer to that question lies in the type of worker the people creating the works for you are. They are either an employee or an independent contractor. An employee automatically gives rise to a work-for-hire status for all works created by the employee in the scope of her or his employment.  That status converts the worker's product into a “work made for hire” i.e. a work created by an employee as part of the job's duties. As for the works of independent contractors, in some limited circumstances, the work-for-hire status can arise when parties agree in writing that the work created by an independent contractor should be considered a work-for-hire. Works made for hire are deemed authored by the employer (or by the party hiring the independent contractor) for copyright purposes, rather than by the actual employee or contractor who created them. 

Due to the requirements and costs in designating workers as employees and the fact that you may only need those workers for short-term or special gigs, many workers you hire will likely be independent contractors instead. In that event, the contract governing your relationship with these independent contractors assumes utmost importance. According to the Copyright Act, for independent contractors, only certain works can be designated as works-for-hire contractually including, but not limited to, “a work specially ordered or commissioned for use as a contribution to a collective work.” To strengthen this work-for-hire characterization, you should have a clause in your agreement that ensures a complete copyright transfer in the event that a court or an agency like the IRS determines that work-for-hire provisions do not apply. 

The main point is that failing to have a properly drafted work-for-hire and copyright transfer clause in your agreements may put your copyright ownership rights in the works you commission or purchase at risk. To play it safe, ensure that any work-for-hire clauses you intend to use, or currently use, are drafted and/or revised in a way that grants you the broadest and most complete ownership rights possible. 

If you have more questions about this matter or require the drafting, review and/or negotiation of work-for-hire clauses and/or related agreements, please e-mail me at danny(at)djimlaw(dot)com, or call me at (929) 322-DJIM(3546).

Danny Jiminian specializes in entertainment law, intellectual property, business law and nonprofits. He is very good at what he does and knows his stuff. For a free consultation, email him.


Matter included here or in linked websites may not be current. It is advisable to consult with a competent professional before relying on any written commentary. No attorney client relationship is established by the viewing, use, or communication in any manner through this web site. Nothing on this blog or blog posting is official legal advice; it is just information and opinion. But if you want to, you can visit my professional website and hire me at www.djimlaw.com.

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