1.31.2017

Copyright Tuesday: How to Deal with Copyright Infringement on YouTube

Did someone post a video on YouTube infringing on your copyright? In other words, did someone use a song, a photograph or a video clip that you have a copyright to, without your permission, and posted it on YouTube? If you believe so, then you can do something about it.

Here are the steps to resolve that problem:

  1. Consider whether the infringing video meets a fair use criteria. You may need to consult an attorney for advice.
  2. Next consider whether the person who made or uploaded the video has some form of permission or authorization from you. If so, was it a verbal or written agreement and what are the terms to that agreement?
  3. If the uploaded video is still infringing on your copyright then your next step is to "Submit a copyright takedown notice" on YouTube. Click here to go that page. Note that these requests should only be submitted by the copyright owner or an agent authorized to act on the owner’s behalf. Furthermore, this request is the first step in a legal process that can result in a lawsuit.
  4. The form will ask a series of questions which you must fill in such as what is the issue, who is the copyright owner, what are the name(s) and URL(s) of the video(s) to be removed, what work of yours is being infringed, information about the copyright owner and your contact information.
  5. Most importantly, you must swear under penalty of perjury that your statements are accurate. If you materially misrepresent any claims, you may be liable for damages and attorney's fees.
  6. Finally you will submit the complaint and wait to hear back from YouTube.
  7. YouTube usually removes the video soon after unless the person who posted the infringing video disputes the notice. When that happens, YouTube will reinstate the video unless you take further action.
  8. In that event, you will decide to either move on or actually file a copyright infringement lawsuit.
These steps are similar to what you would have to do with other content providers except that they may not have a fillable form you can click on. Instead you will have to draft a letter with the appropriate information and send to the content providers legal office. Finally, addressing trademark infringement and trade secret disclosures require similar steps.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


Jiminian Law PLLC is devoted to helping clients manage, protect, register, license, sell, grant and use their copyright(s) or defend it or themselves in matters of copyright infringement.  Regarding copyright management, it is always best to be pre-emptive with your business and implement a copyright strategy.  That is where I can come in.  Providing knowledgeable and effective representation are the keys to my success.  I am available for a free consultation if you call me at 917.388.3574 or 929.322.3546 or email me at danny@djimlaw.com.

1.26.2017

Trademark Thursday: Trademark Infringers Can Limit The Damages They Must Pay If The Trademark Owner Fails To Prove That The Parties' Marketing Areas Overlap

by Hunter Freeman | McNair Law Firm, P.A. and originally published at JD Supra on 1.25.17
It has long since been the rule that an infringing trademark use may only be prevented in the geographic areas where use of the infringing mark and owner's trademark overlap.In the recent case of Variety Stores, Inc. v. Wal-Mart Stores, Inc.,iithe Eastern District of North Carolina stressed the importance that geographical overlap plays in recovering damages from such infringement. In fact, proof of geographic overlap can be more important than evidence of lost sales resulting from the infringement. While the District Court awarded Variety Stores damages for Wal-Mart's infringement, it limited the award to the profits Wal-Mart made under the infringing mark solely in the states where both parties actually used their competing marks. And it did so despite Variety Stores' failure to present evidence that the infringement actually caused it to lose any sales.
For the rest of the article click here or at the break below.

Trademark Thursday: Does Louis Vuitton Lack A Sense Of Humor? The Parody Defense Is No Laughing Matter For Brand Owners

1/18/2017 by Charlene Azema, Jonathan Hyman for JD Supra


On December 22, 2016, the Second Circuit gave tote bag manufacturer My Other Bag an early Christmas present by tossing out luxury giant Louis Vuitton’s claims of trademark infringement, copyright infringement, and trademark dilution and agreeing with the District Court’s finding that My Other Bag was shielded from liability by the parody defense.
My Other Bag – No Ordinary Bag
Defendant, My Other Bag, sells canvas tote bags for use as a grocery or all-purpose bag with the phrase “My Other Bag…” on one side and look-alike drawings of luxury purses (including Louis Vuitton purses) on the other side, such as the bag shown below:
For the full article click here or continue reading after the break.

1.24.2017

Copyright Tuesday: A Tale of Two Cakes: Can Copyright Law Protect this Cake Design?


by Cynthia Blake Sanders of Baker Donelson, originally published on 1/23/2017 by JDSupra
Duff Goldman of Charm City Cakes, one of our hometown heroes in Baltimore, a.k.a. the Ace of Cakes, created a striking cake for President Obama’s 2012 inauguration. The cake design caught the eye of the incoming presidential administration that ordered a different pastry chef, Buttercream Bake Shop, to create a replica of the Ace’s creation.
Can the pastry chef that produced the replica cake be held liable for stealing the Ace’s cake design?
To find out click here for the article or read more below.

1.23.2017

Entertainment Law News: NY Gov. Cuomo’s Budget Extend State’s Film Incentives Program

originally published on Deadline on January 17, 2017

New York Gov. Andrew Cuomo tonight unveiled a state budget that includes a three-year extension of the state’s film production tax credit. Launched in 2004 and extended by Cuomo in 2013, the $420 million-a-year program isn’t set to expire until 2019 but was expected to run out of money later this year without the additional funding provided for in the new state budget.

An economic impact report conducted for Empire State Development, the state’s economic development arm, found that in one two-year period – 2013 and 2014 – the program had created more than $5 billion in spending in the state, generated nearly $10 billion in total spending throughout the state’s economy, created more than 60,000 jobs and $3.3 billion in earnings.
Many in the state’s booming film and TV community had urged the governor to extend the program, including the New York Production Alliance and the DGA.
“The Directors Guild of America applauds Governor Cuomo for his continued leadership, and thanks him for including a three-year extension of the Empire State Film Production Tax Credit in his budget,” the guild said in a statement. “The positive impact of the incentive on the economy, jobs and local business is enormous. Between 2005 and 2015, as production increased by more than 300%, the earnings of our members who live and work in New York’s communities grew 350%. This simply would not have happened without the incentive.”
The program’s extension  also will be good for businesses like Kaufman Astoria Studios, which boasts the only studio backlot in New York City. “The governor’s support of the tax credit is a great economic policy,” said Hal G. Rosenbluth, the studio’s president and CEO. “The tax credit, combined with New York’s great talent, drives the $9 billion production industry in New York. The industry creates in excess of 100,000 high-paying jobs and spends millions of dollars in the local community for goods and services. Having the tax credit in place encourages Kaufman Astoria Studios and its counterparts to invest in building new infrastructure to service and grow the industry. With this extension of the tax credit the governor has established a win-win for the economy.”
SAG-AFTRA said that it too is pleased with the extension and the jobs for performers it will bring to the state. “SAG-AFTRA is grateful to Governor Cuomo for his leadership in recognizing the substantial economic benefits this tax incentive program brings to New Yorkers,” said Mike Hodge, president of the union’s New York local. “Film, television and other productions now create over 140,000 SAG-AFTRA-covered entertainment jobs every year in New York. The proposed extension of the tax incentive program, combined with the extraordinary talent of our local members, will ensure that producers continue to invest and thrive here.”

Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success.  I am available for a free consultation if you call me at 917.388.3574 or 929.322.3546 or email me at danny@djimlaw.com.

Business Law Monday: Protecting Trade Secrets and Non-Competes with Low Level Employees

Today's business tips are (1) don't be too quick to kick out an employee who has quit your company for a competitor and (2) be wary of forcing low-level employees to sign non-competes. To find out, why read the excerpts below:

(1) from When Employees Leave With Your Secrets
When you first learn of a departure, you are engaged in triage with two parallel priorities: find out what’s going on, and lock down the evidence.  In most circumstances that may give you time for an initial meeting to get some details and perhaps try to turn the situation around.  But you also have to be ready immediately to take actions that guarantee you get control over your data.
The initial investigation is low key, brief and uses internal resources.  Talk to the supervisor, find out what the departing employee knows and the apparent level of risk presented by the departure.  Identify relevant contracts, especially noncompete, nonsolicitation and invention assignments.  Get a quick read on any unusual recent behavior, including attempts to access information outside normal areas of responsibility, emailing documents to a personal website or uploading to a cloud storage site.
At this point you may be ready for an initial meeting to confront the employee with any disturbing facts or inferences and make a further assessment of the risk.  Where are they planning to go and what will be their responsibilities?  How long have they been looking at this?  What are the attractions of this new opportunity, and what are the negatives with their current position?  If you don’t want to lose them, ask about their willingness to change their mind and stay.  If not, make sure that no one else is involved in the move, and assess whether there is any project that would be seriously hurt if they left immediately.  (If so, then you might want to arrange a carefully controlled and swift transition process.)
Now you need to find out where all of your data are located.  Where are the company laptop and other mobile devices, including USB drives and security keys?  Is anything on a home computer system, in personal email accounts or stored in a cloud account such as Dropbox?  All of these assets, as well as physical files, need to be located and secure in company premises.  Be sure to emphasize clearly – and confirm this in writing – that nothing is to be deleted, even personal files, until the exit interview that will be scheduled to debrief and to separate personal from company data.
If the employee has given notice of willingness to stay on for a period of time, you can take them up on that without necessarily having them be present in the facilities.  Beyond tasking them with gathering and producing all company devices and data, and remaining available to answer questions, you may want to just send them home.  Preserve evidence by duplicating (preferably through a forensic service) all of the drives and accounts to which the employee had access.  And avoid any new damage by terminating the employee’s access to electronic systems.
The initial phase is often completed in the same day that notice is received, and in the process you will have made a basic assessment of the significance of the departure and the level of risk it poses.  If that assessment is moderate to serious, then the next step will often involve bringing in outside counsel to perform a deeper investigation.  This carries several advantages.  First, the entire process will be protected against disclosure by attorney communication and work product privileges.  Second, you will have the benefit of specialists who know what questions to ask and how far they can properly and usefully dig for the story.  Third, you will get sober, independent advice that is not affected by the emotional reaction of some managers when troublesome departures happen on their watch.
Outside counsel can assist with tying down the forensic record and reviewing it for evidence of improper behavior.  They will help you prepare for the exit interview, and in some circumstances they may participate in that process.  More typically you will conduct the exit interview internally, with two primary goals: first, learn as much as you can about where the person is going and what they are going to do; and second, deliver a clear and firm message about the importance of respecting their legal obligations, and the consequences if they don’t.
Here is a common exit interview checklist:
  • Confirm that all company property and information has been returned.
  • Ask about why they are leaving and how it might have been prevented.  This might provide information about others who are at risk.
  • Identify who they have talked to about their leaving; if the person is a manger, remind them of their duties relating to solicitation.
  • Find out about how they got the new job and precisely what they will be doing.
  • Ask them how they intend to ensure that they can perform their new functions while scrupulously protecting your confidential information.
  • Provide copies of their relevant agreements and point out their continuing restrictions and responsibilities; ask if they have questions, and emphasize that these promises are extremely important and serious and that the company will enforce them if it believes there is a breach.
  • Ask them to sign a “termination statement,” for example:
I certify that I do not have in my possession, nor have I failed to return, any files, data, notebooks, drawings, notes, reports, proposals, or other documents or materials (or copies or extracts thereof) or devices, equipment, or other property belonging to XYZ Corporation.
I also certify that I have complied with and will continue to comply with all of the provisions of the Proprietary Information and Employee Inventions Agreement which I have previously signed, including my obligation to preserve as confidential all secret technical and business information pertaining to XYZ Corporation.
Following the exit interview, review the results with counsel and formulate a strategy.  In most cases, the only followup will be a “warning letter” addressed either to the employee alone or also to the new employer, noting the company’s concerns, citing any relevant restrictive agreements, and offering the assumption that everyone will comply with their obligations.  A variation on this approach might include a request for a meeting to discuss assurances required to provide comfort that the employee will not be placed in a position that will imperil the integrity of your data.  (Click here for sample warning letters, and a note on new risks in sending them.)
Of course if you believe that there’s evidence not just of risk but of actual misappropriation of your trade secrets, you need to take prompt action.  You should have outside counsel involved immediately, to help you balance the need for a basic understanding of the facts with the imperative of prompt legal action.  But where you can afford the time to prepare before you act, your decisions will be better informed and less likely to cause collateral damage.  (Click here for my white paper “So You Want To Sue For Trade Secret Theft?”)
(2) from Requiring Non-Competes for Low Level Employees Raises Increasing Risks for Employers

A client recently asked us to draft a non-competition agreement that would prevent entry level machinists from working for a competitor for one year following their departure from employment. When we asked the client about the reasons for requiring the non-competes, he responded that he was sick and tired of training employees and losing them to a competitor that promised marginally higher wages. We responded that use of non-competes in these situations could result in legal claims against the employer for restraint of trade.

...For lower level employees, often a confidential information agreement is sufficient to cover the employer’s true protectable interests. In the above scenario, we recommended that the client use a combination of a confidential information protection agreement along with structured retention bonuses to deter employees from moving to a competitor for small differences in hourly compensation. This alternative has the dual benefits of having a considerably better chance of being enforced, as well as avoiding possible legal claims over restraint of trade or unfair trade practices.

Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success. Contact me for matters pertaining to the formation and maintenance of your business as well as corporate compliance matters, contracts, trade secrets, employment and more.  I am available for a free consultation if you call me at 917.388.3574 or 929.322.3546 or email me at danny(at)djimlaw(dot)com.

Corporate News: IRS on Tax Inversions and FCC on Cybersecurity

An excerpt from GC Cheat Sheet: The Hottest Corporate News Of The Week

IRS Issues Final Rules to Discourage Tax Inversions

The Internal Revenue Service has issued its final rules aimed at making it harder for U.S. businesses to reap the tax benefits of inversions, transactions that see businesses merging with foreign companies and moving corporate assets overseas. Additionally, it adopted temporary regulations that tweak the de minimis exception to the rule, which disregards foreign company stock resulting from prior inversions or acquisitions of U.S. companies from the calculation that determines the company's ownership percentage and thus whether the IRS treats the transaction as an inversion.

The rule is aimed at companies that engage in several inversions or acquisitions in order to manipulate their sizes to avoid the inversion threshold. Under the most recent version of the regulations, when the de minimis exception applies, the disqualified stock rule does not apply. The IRS is seeking comments on the temporary regulations.

The U.S. Department of the Treasury and the IRS will also now consider only the ownership of former domestic entity shareholders or partners individually rather than collectively, in an effort to stroke "the appropriate balance between preventing the de minimis exceptions from applying in inappropriate circumstances and addressing the practical difficulties" that commenters raised.


FCC Says It Has a Key Role in Cybersecurity Policy
 
In a white paper published Wednesday, the Federal Communications Commission's Public Safety and Homeland Security Bureau said cybersecurity was one of the commission's top priorities and that it is "uniquely situated" to address the issue. The FCC said shifting oversight of cyber risk to a nonregulatory body would "not be good policy" and it recommended initiatives for collaboration and greater cooperation with internet stakeholder groups and government agencies. It noted that internet service providers "naturally" consider risk to the firm when deciding to invest in cyberprotections.

"Unfortunately," the FCC said, "relying on market forces alone fails to adequately weigh the risks imposed on third parties who rely on the networks and services they provision. A cybersecurity gap confronts the public."

Going forward, the FCC will focus on issues including the internet of things, risks for small and medium carriers, 5G security, the next-generation broadcast standard ATSC 3.0, and the emergency alert system, according to the paper.


For more corporate news visit Law 360.

Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success. Contact me for matters pertaining to the formation and maintenance of your business as well as corporate compliance matters, contracts, trade secrets, employment and more.  I am available for a free consultation if you call me at 917.388.3574 or 929.322.3546 or email me at danny@djimlaw.com

1.20.2017

Entertainment Case: California Defends IMDb's Challenge to Actor Age Censorship Law

originally published on 1.20.17 by Eriq Gardner for THR

California has filed its opposition to IMDb's attempt to stop a controversial new law over the display of an actor's age. The state tells a California federal judge that the statute is more about contracts than speech.
California Gov. Jerry Brown signed the law in September after Hollywood's biggest actors' guild lobbied for the change. SAG-AFTRA aimed to combat age discrimination by forcing certain websites to remove age information upon request.
In November, IMDb filed suit and demanded an injunction on enforcement. The Amazon.com subsidiary argues the law is "unconstitutionally over-inclusive because it requires IMDb to censor the factual age-related information of producers, directors, casting agents, and myriad other entertainment professionals, many of whom face no realistic risk of age discrimination from the publication of their ages on IMDb."
IMDb has drawn support from the EFF, the First Amendment Coalition, the Wikimedia Foundation and The Center for Democracy & Technology. Meanwhile, SAG-AFTRA is looking to intervene in the case by being named as a defendant.
In a brief filed on Thursday, California's deputy attorney general Anthony Hakl draws attention to exactly how the law functions. Most have assumed that any actor can request age removal, but the law specifically reserves removal requests to a "subscriber" of services that enters into a "contractual agreement to provide employment services to an individual."
In other words, what IMDb Pro does when it allows actors to build profiles, showcase their talents, access contact information for agents and publicists, and so forth. A fee is charged, and what California is saying is that any of these customers have the right to tell the service to not post their ages on the IMDb platform as a whole, including the portion that the wider public can access without registration.
For the full article, click here.
Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success.  I am available for a free consultation if you call me at 917.388.3574 or 929.322.3546 or email me at danny@djimlaw.com.

Entertainment Case: New York Court of Appeals Says No Common Law Public Performance Right For Pre-1972 Sound Recordings

originally published on 1/4/2017 by Chidera Anyanwu, Edwin Komen on JD Supra

On December 20, 2016, the New York Court of Appeals, the highest court in the state, held that no common law public performance right exists for pre-1972 sound recordings. The issue of whether a common law public performance right exists for pre-1972 sound recordings in New York was an issue of first impression. Although this holding is only binding on New York state courts and federal cases decided under New York law, it is anticipated that, coming from a premier IP jurisdiction, it will also be highly influential for courts throughout the nation that are adjudicating or may adjudicate similar cases.
In 2013, members of the band, The Turtles, initiated a lawsuit against SiriusXM, the nation’s largest satellite digital radio service, claiming rights to royalties for SiriusXM’s broadcasts of their pre-1972 recordings. The radio service broadcasts pre-1972 sound recordings, including those recorded by The Turtles, but does not pay the group or other artists for broadcasting the recordings.
The court was tasked with determining whether the band members had a right to control public performances of works that were produced prior to 1972. In coming to the conclusion that the members had no such right, the court initially recognized that Congress did not provide a public performance right for pre-1972 sound recordings. Congress first provided copyright protection to sound recordings in 1971, effective February 15, 1972, but limited the protection to recordings produced after such effective date. Further, it did not initially grant owners of post-1972 copyrights in sound recordings a public performance right. Even the Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”), effective February 1996, only provided a limited and highly regulated digital performance right that did not extend to nonsubscription broadcast transmissions, namely performances transmitted through AM/FM radio stations. Therefore, the court found significant that Congress has never recognized a general public performance right for post-1972 sound recordings nor provided generally for federal protection of pre-1972 sound recordings. It emphasized, however, that Congress expressly did not pre-empt any existing state laws concerning pre-1972 sound recordings, and such rights under state statute or common law may be asserted until February 15, 2067.
The court then analyzed its case law to determine whether New York courts have recognized a public performance right for pre-1972 sound recordings. It highlighted cases that discussed distribution and reproduction rights for owners of copyrighted works – these rights being necessary to prevent piracy of the works – but determined that the question of whether a public performance right in pre-1972 sound recordings existed in common law was an issue of first impression.
Finding no cases that addressed the issue, the New York Court of Appeals answered the question in the negative. 
Why did the court answer in the negative?
It explained that the failure of artists to assert the right in court supports the contention that no such right existed. In fact, the court expressed its belief that artists failed to assert the right because they derived benefits from radio stations playing their music. For example, artists and record companies experienced an increase in album sales as a result of radio play.
The court also expressed concern about courts establishing a public performance right where none existed before. It explained that courts do not have the resources to balance the various interests that may be affected if such a right were to exist. It further encouraged artists to, instead, ask Congress to pass legislation on the issue. Congress, it explained, has the proper tools to establish the right and the scope of its protection.
What is one take-away moving forward?

In regard to the resolution of similar cases, this holding represents an understanding that state courts should adjudicate this issue under state law. As the court discussed, federal copyright law does not provide an answer to the dilemma presented by the facts of this case. Therefore, federal courts should realize that resolution of this issue should be handled by the states or, at the very least, state courts should provide guidance regarding the existence of the right under state law.

The importance of the concurrence

The Court of Appeals decision is also notable for a well-reasoned concurrence and dissent that each provide insight on how similar cases might be viewed by other courts.  In particular, the concurrence includes a detailed discussion on the kinds of uses of sound recordings that fall on a continuum running from those that are clearly performances to those that are clearly reproductions and distributions, with some uses that don’t comfortably fall within either category.
To sum up

Ultimately, state courts will have to decide whether a public performance right in pre-1972 sound recordings exists in their state. This will present a hurdle to enforcing any such performance right on a uniform nationwide basis. Consequently, copyright owners in pre-1972 sound recordings should consult their attorneys regarding any interest they may have in public performances of their pre-1972 sound recordings, and, if the state has or appears to have granted the right, how best to enforce it.

For the full article and analysis, click here.
For a copy of the decision, click here.

Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success.  I am available for a free consultation if you call me at 917.388.3574 or 929.322.3546 or email me at danny@djimlaw.com.

1.19.2017

Trademark Alert: Changes in Requirements for Affidavits or Declarations of Use, Continued Use, or Excusable Nonuse in Trademark Cases

To assess and promote the accuracy and integrity of the trademark register, the USPTO is changing its rules regarding the examination of affidavits or declarations of continued use or excusable nonuse of trademarks filed under Section 8 of the Trademark Act, and on affidavits or declarations of use in commerce or excusable nonuse under Section 71 of the Act, effective February 17, 2017
The new rules will allow the USPTO to require additional proof of use to verify that a trademark is in use in commerce in connection with particular goods/services identified in the registration, unless excusable nonuse is claimed in whole or in part. 
The USPTO issued a notice of final rulemaking entitled “Changes in Requirements for Affidavits or Declarations of Use, Continued Use, or Excusable Nonuse in Trademark Cases" in the Federal Register, 82 Fed. Reg. 6259, on January 19, 2017.  

Offensive TMs At High Court: Everything You Need To Know

by Bill Donohue

The highest-profile trademark case in years will be argued before the U.S. Supreme Court on Wednesday, pitting a rock band and a billion-dollar football team against the federal government — and the First Amendment against laws limiting offensive speech. To get you up to speed, here's everything you need to know.

What's at issue here?

The justices are weighing the Lanham Act's Section 2a, which bars the U.S. Patent and Trademark Office from registering any trademark that "may disparage" people — namely, whether the provision violates the First Amendment rights of those who want to register such offensive words as trademarks.

Though the Washington Redskins aren't directly involved in the case, Section 2a is the same provision cited in the high-profile 2014 ruling that revoked the football team's trademark registrations on the grounds that the name is offensive to Native Americans. The court's decision, coming in a separate case involving an Oregon rock band called The Slants, will likely make or break the team's case, too.

Section 2a has been on the books since 1946, a testament to the fact that few questioned its legality until recently. For years, courts ruled that it didn't violate the First Amendment because it doesn't actually bar real-life use of the offending mark or prevent the owner from enforcing common law trademark rights.

How did we get here?

Simon Tam, the lead singer of The Slants, applied in 2010 to register his band's name as a federal trademark. He and his band mates are of Asian descent, and they say they chose the name to "reappropriate" and disarm an anti-Asian slur.

But an examiner at the trademark office didn't see it that way, ruling that the name would violate Section 2a's ban on "disparaging" marks and rejecting the application. Tam appealed to the Trademark Trial and Appeal Board, but that body upheld the examiner's decision in 2013.

Tam then appealed to the Federal Circuit, which initially affirmed the ruling but then issued an unusual after-the-fact order withdrawing the earlier decision and setting the stage for the en banc court to weigh in on whether Section 2a violated the First Amendment rights of applicants like Tam.

In December 2015, the full court sided with Tam, expressly overturning decades-old Federal Circuit precedent that Section 2a was constitutional. Though such marks often "convey hurtful speech that harms members of oft-stigmatized communities," the appeals court said that "the First Amendment protects even hurtful speech."

"The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks," the court wrote.

The USPTO filed a petition for a writ of certiorari in April, and the high court granted cert in September.


What's the government's position?

That there is a big difference between discriminating against speech and simply declining to use public funds to actively support something — in this case, racial slurs — that the government deems is against the public interest.

"Nothing in the First Amendment requires Congress to encourage the use of racial slurs in interstate commerce," the USPTO wrote in its brief to the high court.

The agency makes that central argument in different ways, but one to keep an eye on during Wednesday's arguments is the so-called government speech doctrine: the idea that expression by the government is exempt from First Amendment protections.

The doctrine got a big thumbs-up from the high court in June 2015, when the justices ruled that license plates were government speech, meaning Texas wasn't violating the First Amendment by refusing requests to adorn them with the Confederate flag.

That ruling was already applied in the Redskins' parallel case, where a district judge upheld Section 2a as constitutional by finding that trademark registrations were analogous to those Texas license plates. Unsurprisingly, the USPTO is asking the justices to do the same in The Slants' case.

"Just as any motorist who wished to display a Confederate battle flag on his vehicle could do so on a bumper sticker without the state's assistance, respondent can use the term 'slants' in any way he wants even if his trademark cannot be registered," the agency wrote. "Just as the state of Texas could permissibly disassociate itself from a symbol it viewed as offensive to the public, the federal government can permissibly disassociate itself from disparaging trademarks."

For outside observers, that line of argument gives the court a chance to offer needed clarification on the extent of "government speech."

"I'll be very curious to see if the justices press them on the boundaries of government speech doctrine," said Megan L. Brown, a partner with Wiley Rein LLP. "Its application in the license plate case was already arguably aggressive, and this would be an even bigger leap."

What's Tam's position?

That withholding the benefits of a registration is a serious burden that the First Amendment requires the government to justify — and that "shielding people from being offended" simply isn't good enough.

"The First Amendment does not allow the government to impose burdens on speech for the purpose of protecting listeners against offense," the band's brief to the high court read. "Disparaging trademarks understandably arouse disgust, but disgust is not a valid basis for restricting expression."

Given the high court's previous treatment of free speech cases, court watchers say they wouldn't be shocked if the justices are receptive to the argument that the USPTO has failed to offer up a sufficient reason for its restriction on speech.

"If you go back and look, there is usually a very serious harm that's being prevented with a restriction of speech," Mintz Levin's Weller said. "A real danger of physical injury or child pornography or libel. You don't really have that same kind of harm here."

Tam also weighed in on the government speech doctrine during briefing, saying a registration was decidedly different than a license plate.

"Unlike license plates, trademarks are not a form of government ID the public thinks of as government speech," Tam wrote. "Unlike license plates, the government does not control the design or the content of trademarks."


The case is Lee v. Tam, case number 15-1293, in the Supreme Court of the United States.

--Editing by Christine Chun and Catherine Sum.


For more, click here.

Jiminian Law PLLC is devoted to helping clients manage, protect, register, license, sell, grant and use their trademark(s) or defend it or themselves in matters of trademark infringement.  Regarding trademark management, it is always best to be pre-emptive with your business and implement a trademark strategy.  That is where I can come in. Providing knowledgeable and effective representation are the keys to my success.  I am available for a free consultation if you call me at 917.388.3574 or 929.322.3546 or email me at danny@djimlaw.com.

1.18.2017

How a Simplified Tax System Under Trump Could Hurt Nonprofits

If Drumpf commits to overhauling the tax code then nonprofits will be affected, according to Marc M. Stern, an estate planning partner at Greenberg Glusker: 
Nonprofit organizations might see their end-of-the-year influx of donations dry up in years to come if Trump makes good on his proposal to cap itemized deductions for individuals at $200,000. Current rules allow deductions of up to 50 percent of adjusted gross income with the ability to carry over the unused portion of that deduction for five years.
For more on the potential for a tax system under Trump in which exotic accounting methods to reduce tax burdens will not be needed, click here.

Jiminian Law PLLC is devoted to helping clients form and manage their nonprofits and address issues that arise with them.  With nonprofits matters, it is always best to be pre-emptive by crafting and implementing a great nonprofit business plan.  That is where I can come in, helping your nonprofit get on the right path from the get-go. Providing knowledgeable and effective consultation and representation are the keys to my success. Danny Jiminian, Esq. is available for a free consultation if you call him at 917.388.3574 or 929.322.3546 or email him at danny@djimlaw.com.

1.17.2017

Copyright Client Alert: Action Needed by Organizations whose Websites allow User Postings

originally published 1/16/2017 by Daniel Carosa, Anne Downey, Jordan L. Walbesser
Businesses and nonprofits that operate a website or other online presence (mobile app, blog, portal, game, etc.) where users may post content (for example, in a user forum) will need to take action in 2017 in order to obtain or preserve their protection under the Digital Millennium Copyright Act (DMCA) safe harbor from copyright infringement liability.
Since its inception in 1998, the DMCA safe harbor, 17 U.S.C. 512(c), has offered a liability shield for an organization in connection with copyright infringing materials posted by website visitors, provided that the organization takes the necessary steps under the safe harbor rules. In the past, those steps included three things. First, the organization needed to publish contact information (typically in a website’s Terms of Use) so that copyright owners knew whom to contact when requesting a takedown of infringing material posted by a user. Second, the organization was required to mail or otherwise transmit to the U.S. Copyright Office an Agent Designation form listing the contact person to receive takedown requests for specified websites. Third, when a designated agent received a valid takedown request, the agent needed to act promptly in taking down the infringing materials, following the steps set forth in the DMCA rules.
Starting December 1, 2016, the second requirement has changed. The Agent Designation system now requires an online submission via the Copyright Office website. Moreover, any organization that previously designated an agent must resubmit the Agent Designation through the new online registration system by December 31, 2017. Failure to resubmit a designation will cause the previous designation to expire, resulting in a loss of the safe harbor protection.
For more information and compliance requirements, click here.

Jiminian Law PLLC is devoted to helping clients manage, protect, register, license, sell, grant and use their copyright(s) or defend it or themselves in matters of copyright infringement.  Regarding copyright management, it is always best to be pre-emptive with your business and implement a copyright strategy.  That is where I can come in.  Providing knowledgeable and effective representation are the keys to my success.  I am available for a free consultation if you call me at 917.388.3574 or 929.322.3546 or email me at danny@djimlaw.com.

1.13.2017

Sports / Entertainment Law Case of the Day: NCAA Student Athletes Seeking Employee Status

Here are two helpful analyses on the ongoing legal saga regarding NCAA student-athletes:

Game Over for NCAA Student Athletes Seeking Employee Status? 7th Circuit Affirms Dismissal of U. Penn Athletes’ FLSA Complaint
On December 5, 2016, the Seventh Circuit affirmed dismissal of a complaint filed by two University of Pennsylvania track and field athletes against the National Collegiate Athletic Association, the university, and more than 120 other NCAA Division I universities and colleges alleging that student athletes are entitled to minimum wage under the Fair Labor Standards Act (“FLSA”). In Berger v. NCAA, the court held that student athletes are not “employees” within the meaning of the FLSA and thus, are not entitled to a minimum wage for their athletic activities. To read more, click here.

NCAA Athletes Aren’t Employees — Or Are They?
Several recent legal efforts have attempted to provide student-athletes with a piece of the financial pie resulting from events like Monday’s national championship game, which reportedly netted the NCAA around $470 million in television rights. On Jan. 4, 2017, the 7th U.S. Circuit Court of Appeals denied en banc rehearing of one such case, Berger v. National Collegiate Athletic Association. In Berger, two former University of Pennsylvania (Penn) women’s track and field athletes sued Penn, the NCAA and 120 other member institutions, alleging they had violated the Fair Labor Standards Act (FLSA) by not paying minimum wage for their athletic endeavors. Although the 7th Circuit panel opinion held that the plaintiffs were not employees under the FLSA, much less attention has been paid to the concurring opinion, which questions whether the same result would apply to scholarship athletes from revenue-generating sports, like those who played in the National Championship Game. To read more, click here.

Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success.  I am available for a free consultation if you call me at 917.388.3574 or 929.322.3546 or email me at danny@djimlaw.com.

1.10.2017

The Top 10 Trademark Rulings Of 2016


At the end of each year, Law 360 tallies up the top 10 copyright rulings of the year. It's always great taking a glimpse back at important decisions that affect trademark law, litigants and business and will have an impact in the future.

The Top 10 Trademark Rulings Of 2016

originally December 20, 2016
Author: Bill Donahue

Summary

From cannabis to Costco to Coca-Cola to Converse, 2016 was another year chock-full of exciting trademark rulings. To get you up to speed for the start of the new year, here are the top 10 trademark decisions from the year that was.



From cannabis to Costco to Coca-Cola to Converse, 2016 was another year chock-full of exciting trademark rulings. To get you up to speed for the start of the new year, here are the top 10 trademark decisions from the year that was.

10. In re JuJu Joints

The Trademark Trial and Appeal Board’s October ruling doubled down on the board’s refusal to register cannabis-related trademarks, rejecting a novel argument that the hands-off approach used by federal prosecutors in pot-friendly states effectively made the drug “lawful” under the Lanham Act.

The ruling against a Washington company called JuJu Joints came a few months after the TTAB rejected another cannabis-related trademark even though the applicant never mentioned the drug in the application.

Taken together, the board's two precedential cannabis rulings in 2016 made one thing clear: Even as voters continue to authorize use of the drug in state after state, federal trademark registrations for marijuana aren’t coming any time soon.

The case is In re JJ206, LLC, dba JuJu Joints, case numbers 86474701 and 86236122, before the Trademark Trial and Appeal Board.

9. Florida International University Board of Trustees v. Florida National University Inc.

The Eleventh Circuit’s July ruling nixing Florida International University’s trademark lawsuit against for-profit Florida National University was rooted in a simple idea: Prospective college students wouldn’t accidentally spend tens of thousands of dollars and attend the wrong school because of a similar-sounding name.

The ruling is particularly notable because it came among several similar disputes. In November, a Texas federal judge went the other way, ordering the Houston College of Law to change its name over similarities to University of Houston Law Center. A few weeks later, American InterContinental University filed a preemptive lawsuit after it was threatened with trademark litigation by American University.

The case is Florida International University Board of Trustees v. Florida National University Inc., case number 15-11509, in the U.S. Court of Appeals for the Eleventh Circuit.

8. Tiffany & Co. v. Costco Wholesale Corp.

A Manhattan jury’s September and October verdicts — which came after a bench ruling last year that Costco infringed Tiffany’s trademark rights by using the jeweler’s name on diamond engagement rings — hit the big box chain with $5.5 million in damages for unlawful profits and $8.25 million in punitive damages.

The verdicts capped more than three years of often-bitter litigation — Costco has called the case a publicity stunt and Tiffany has called the retailer a counterfeiter — and paved the way for a Second Circuit appeal of the earlier liability ruling.

The case is Tiffany & Co. v. Costco Wholesale Corp., case number 1:13-cv-01041, in the U.S. District Court for the Southern District of New York.

7. Variety Stores Inc. v. Wal-Mart Stores Inc.

A North Carolina federal judge’s November ruling ordered Wal-Mart to pay a whopping $32.5 million for selling a line of “Backyard BBQ” products that infringed the “Backyard” trademark rights of a small Southern discount chain, an unusually large sum for a trademark case.

The ruling for Variety Stores Inc., which operates 300 discount stores, didn’t mince words, blasting Wal-Mart for making a “deliberate choice” to infringe the trademark rights of a smaller company despite repeated warnings from its attorneys.

The case is Variety Stores Inc. v. Wal-Mart Stores Inc., case number 5:14-cv-00217, in the U.S. District Court for the Eastern District of North Carolina.

6. International Information Systems Security Certification Consortium Inc. v. Security University LLC

The Second Circuit's May decision was the court’s first on trademark law’s nominative fair use doctrine, offering a brand-new approach to a doctrine the Ninth Circuit created two decades earlier.

In the 1992 ruling laying out nominative fair use, the Ninth Circuit ruled that a company that needs to use another company’s trademark — think of an auto body shop advertising that it repairs Volkswagens — can do so if it uses no more of it than necessary and does nothing to suggest sponsorship or endorsement.

In its ruling, the Second Circuit embraced the doctrine in principle, but rather than make it a stand-alone defense, decided to incorporate the doctrine into its broader, eight-factor "Polaroid" test for deciding likelihood of confusion.

The company that lost the case has already appealed it to the U.S. Supreme Court, arguing that it directly contrasts with the Ninth Circuit’s approach and threatens to limit the doctrine’s scope.

The case is International Information Systems Security Certification Consortium Inc. v. Security University LLC, case number 14‐3456, in the U.S. Court of Appeals for the Second Circuit.

5. Royal Crown Co. Inc. et al. v. The Coca-Cola Co.

The Trademark Trial and Appeal Board’s May ruling gave Coca-Cola Co. a victory in its long-running effort to secure trademark control over “Zero,” shooting down concerns from beverage rivals that the soda king was trying monopolize a generic word.

The decision, coming 13 years after Coke first tried to register the name, rejected arguments from the Dr Pepper Snapple Group Inc. that “Zero” was a generic, unregistrable term for zero-calorie soft drinks. The board also said Coke had built enough “acquired distinctiveness” for the term "Zero" for it to function as a trademark.

Dr Pepper Snapple is currently appealing the ruling to the Federal Circuit, urging the court to rethink how the TTAB approaches issues of genericness and pressing the appeals court to keep the “widely used” term “free for use.”

The case is Royal Crown Co. Inc. et al. v. The Coca-Cola Co., case number 91178927, before the Trademark Trial and Appeal Board.

4. SunEarth Inc. et al. v. Sun Earth Solar Power Co.

The Ninth Circuit’s October ruling largely ended any lingering uncertainty over whether the U.S. Supreme Court's Octane Fitness ruling — which made it easier for prevailing patent litigants to win attorneys’ fees — would apply equally to trademark law.

Courts had been gradually applying the Octane ruling to the Lanham Act, but a Ninth Circuit panel ruled in May that it was bound by the circuit's more restrictive pre-Octane standard, which only allows fee awards for "malicious, fraudulent, deliberate or willful" cases.

The October ruling, by the en banc court, overturned that standard, saying the court agreed with "the majority of our sister circuits" that Octane had "altered the analysis of fee applications under the Lanham Act."

The case is SunEarth Inc. et al. v. Sun Earth Solar Power Co. et al., case number 13-17622, in the U.S. Court of Appeals for the Ninth Circuit.

3. Trader Joe’s Co. v. Michael Hallatt

The Ninth Circuit’s August ruling against a knockoff Trader Joe’s store in Vancouver said consumer confusion across the border could easily have enough effect on American commerce to justify extraterritorial application of the Lanham Act.

Citing the fact that “incidents of foodborne illness regularly make international news,” the court said contaminated food sold at the Canadian “Pirate Joe’s” could clearly hurt Trader Joe’s reputation in the States.

The case is Trader Joe’s Co. v. Michael Hallatt, case number 14-35035, in the U.S. Court of Appeals for the Ninth Circuit.

2. Belmora LLC v. Bayer Consumer Care AG

The Fourth Circuit’s March decision expanded the global reach of U.S. trademark law with the holding that Bayer AG could sue a small drugmaker in U.S. court for using the foreign brand name Flanax despite the fact that the pharmaceutical giant had never used or registered the mark in the U.S.

Belmora LLC — sued by Bayer for using “Flanax,” its Mexican brand name for Aleve — said Bayer lacked legal standing to do so, but the Fourth Circuit was swayed by the drugmaker’s arguments this would create a “loophole” that would allow for the “blatant deception of Mexican-American immigrants.” The court said there was no "unstated requirement " that a trademark must be used or registered to sue under the Lanham Act's broad unfair competition provision.

Belmora is currently petitioning for review by the U.S. Supreme Court, a bid that has received support from the International TrademarkAssociation.

The case is Belmora LLC v. Bayer Consumer Care AG, case number 15-1335, in the U.S. Court of Appeals for the Fourth Circuit.

1. In the Matter of: Certain Footwear Products

The U.S. International Trade Commission’s June ruling marked a big setback for Converse’s aggressive campaign to protect its Chuck Taylor sneaker — and a major victory for rival shoe companies and retailers who said the company was trying to use trademark law to monopolize common sneaker designs.

The commission ruled that Converse lacked enforceable trade dress rights over the core design elements of its Chuck Taylor sneaker, saying later that it was swayed by more than 80 years of widespread use of similar designs by competitors.

Converse has appealed the ruling to the Federal Circuit, a proceeding that will likely lead to one of the top trademark rulings of 2017.

The case is In the Matter of: Certain Footwear Products, investigation number 337-TA-936, before the U.S. International Trade Commission.

--Editing by Mark Lebetkin and Kelly Duncan.

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