Weekly IP Buzz for the Week Ending June 5, 2020

In this week's post, we see how the Internet of Things has found itself even more relevant than before as it provides real-time data for analysis of COVID-19’s impact on economic health and supply chains. 

Plus, a DMCA update may be necessary after 20 plus years since the Act was enacted. The Copyright Office report issued in May 2020 indicates that the balance Congress intended to create under the section 512 provision is lacking.

Internet of Things Provides New Insight During Pandemic

With COVID-19 ravaging economies worldwide, most news has understandably been focused on the destruction and death that COVID-19 has left in its wake.  Yet some industries and technologies have found themselves striving during this crisis, becoming more relevant than ever before with the Internet of Things (“IoT”).  In particular, IoT tracking devices have been able to provide new insight into how the virus is impacting certain industries in real-time. 

For example, industries that rely heavily on container and fleet vehicles to ferry their goods across borders have been able to rely on IoT to track the impact that COVID-19 has had on overall trucking and shipment activity.  By simply attaching IoT tracking devices to the truck or fleet vehicles, data can be collected in real-time.  As such, not only do the IoT devices track the trade activity in specific geographical locations, but they can also track whether or not more fleet vehicles are being used overall.  Vendors are able to adjust their shipments accordingly as they analyze the data sent back by the IoT devices. 

This data can not only help the vendors at a micro-level, but it also allows for more analysis about COVID-19 at a macro-level.  For example, if an area requires more goods than usual but has longer than normal transportation time, IoT tracking data can trigger analysts to look deeper into the affected location and determine whether COVID-19 is particularly active there and adjust the fleet vehicles accordingly.  And at a macro level, data regarding emissions can also be tracked by the same IoT devices, allowing scientists to track and analyze the impact that COVID-19 has had on the reduction in carbon dioxide emissions globally. 

Find the full article here.

Is the DMCA Getting an Update? The Copyright Office Reports on the Notice and Takedown System

After several years of studying data compiled from the public on the DMCA section 512 safe harbor provisions, the Copyright Office found that Online Service Providers (OSPs) and rights holders disagree on whether the notice and takedown system is working in a balanced manner for all.  As such, the Copyright Office issued a report suggesting a DMCA update for the Act to better fit with modern times and technology.

The Copyright Office found that rights holders do not see eye-to-eye with the companies relying on DMCA safe harbor provisions to avoid liability for copyright infringement caused by third party’s using their platforms. In considering a DMCA update to the section 512 provision of the Act, the Copyright Office considered the difference in how OSPs and rights holders view the provision as “working” to combat infringement.  

Read the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending May 29, 2020

In this week's post, we see as organizations continue to collect private data for helping slow the spread of COVID-19 without much guidance and in different manners in accordance with local regulations, the FTC is discussing the need for a comprehensive federal privacy law.

Plus, social tracing has helped to stop the spread of coronavirus in some countries and tech companies are creating apps to make suck tacking easier, as privacy concerns appear disregarded.

FTC Reiterates Need for Comprehensive Federal Privacy Law

As the coronavirus pandemic continues to wreak havoc across the nation, Christine Wilson, a commissioner at the Federal Trade Commission recently stated that it is imperative that Congress work toward passing a comprehensive federal privacy law that would preempt existing state laws. 

As efforts to “flatten the curve” or slow the spread of the virus has increasingly worried privacy experts whom fear that private date collection measures encroach or even erode away an individual’s right to privacy protection. COVID-19’s rapid spread across the nation continues to expose the challenges of federalism and has now revealed how states may respond to crises in very different ways depending on the needs of their constituents, their own supplies and resources, and under the leadership or personality of their respective governors.   

As such, Commissioner Wilson’s call for Congress to move on a federal privacy law bill is especially timely and relevant, particularly as the law would have dictated and governed how the data currently being collected by employers, health officials, and governments would be protected.   

Read the full article here.

The Troubling Trade-Off Between Social Tracing and Privacy

As the global coronavirus pandemic continues to rage across the world, many countries have begun to weigh the trade-off between aggressive contact tracing and individual privacy.  While many health experts credited aggressive social tracing to be the reason for lower death tolls in Germany and China as compared to counterparts like the United Kingdom and the United States, which did not practice social tracing, many wonder at what cost to privacy will new efforts to slow the spread of COVID-19 come.

For months now, technology giants like Apple, Amazon, Microsoft, and Google have all began to provide services that allow users to “screen” themselves for coronavirus symptoms.  For example, Apple teamed up with the Centers for Disease Control and Prevention, the Federal Emergency Management Agency, and the White House to offer a mobile application and website that offered itself as a resource and screening application for COVID-19.  

Find the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending May 22, 2020

In this week's post, we see as hopes of a vaccine for the coronavirus seem to be closer to reality, many health and legal experts have raised concerns about how distribution will occur if the vaccines are patented. 

Plus, an overview of domestic vs. international contracts for the sale of goods.

Fears Arise as Vaccines for COVID-19 May Be Patentable

As most experts in the field know, patenting vaccines is not unusual and is why pharmaceuticals remain one of the most intellectual property heavy fields professionally.  But as the pandemic continues to spread across the globe, health officials have begun to question whether COVID-19 vaccine patents will be troublesome. 

Lawyers around the world have already begun anticipating the potential for an increase in litigation as well as governmental intervention if vaccine makers and distributors cannot come to an agreement of how ownership rights will be protected.  And with the addition of international health authorities, legal experts expect that there can be significant difficulty with widespread distribution of a vaccine without careful planning, infrastructure, and oversight.   

In preparation for the potential for increased patent litigation, some countries are trying to head off the conflict by announcing that they will require that vaccine patent licenses be granted and compulsory once manufactured.  Other countries have also asked the World Health Organization to lead organizational efforts and broker agreements that will require countries to cooperate, share information, and agree to nonexclusive vaccine patent licenses.  Many experts worry, however, that countries that are not a part of the World Health Organization may lose out on access to COVID-19 vaccines or may not be able to share pertinent information relevant to finding a cure or vaccine. 

Read the full article here.

A Look at Domestic Versus International Contracts for the Sale of Goods

In the modern global economy, most U.S. companies are aware of the savings and opportunities available by sourcing or exporting products outside the United States. Of course, these opportunities often involve additional risks, as well. Although companies can take a number of precautions to limit their risks in international transactions, the primary legal tool for such purposes is the sales contract.

In the world of transactional law, unpredictability and ambiguity are dirty words. When a contract fails to clearly address a given situation and a dispute arises, it often takes a judge or jury to determine the correct result. Most companies would prefer to know what their rights and obligations are in a contract, rather than leave such decisions to a judge or jury. As such, transactional lawyers go to great pains to try to eliminate unpredictability and ambiguity — a task made more difficult when the parties to a contract are from different countries.

A good international contract for the sale of goods is, in most respects, quite similar to a good domestic contract. However, because of differences in legal jurisdictions and practical issues related to enforcing contracts across national borders, a number of provisions standard to many domestic sales contracts gain special importance in an international transaction.

Read about the provisions here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending May 15, 2020

In this week's post, we see as the United States slowly allows workers to return to their places of employment, employers must be aware that certain disclosures may trigger the Health Insurance Portability and Accountability Act, which is better known as HIPAA. 

Also, an overview of non-disclosure agreements.

HIPAA Privacy Rights: Triggers and Exceptions Amidst COVID-19 and Return To Work

May 1st marked the reopening of many regions across the United States. While many states stressed that social distancing and proper health safeguards should still be observed, many businesses reopened in the United States, signaling a moderate return to normal in the United States, and potentially triggering HIPAA privacy rights. 

As employees return to their workplaces, many employers may be unaware that their roles as health insurance providers may raise new questions regarding medical record privacy in the face of the coronavirus pandemic. For instance, as it was common practice for many businesses to test and record symptoms of their employees for the sake of flattening the curve, this triggered a host of new policies that employers had to follow regarding safeguarding the privacy of employee medical health records. This was addressed in a previous blog post “Coronavirus and Employee Privacy – What Employers Should be Aware Of.”

And on top of these new practices, employers must also be well versed in the rules under the Health Insurance Portability and Accountability Act, better known as HIPAA, as the coronavirus is still very much prevalent.  Put very broadly, HIPAA privacy rights protect the security and privacy of health records in connection with health care providers and health care plans. As employers are often responsible for providing the crux of health care plans to American citizens, it is important to understand when HIPAA is triggered. 

In the past, the mere providing of health care to employees did not trigger HIPAA privacy rights in itself. As such, employment records, accommodation requests, certain certifications, and workers’ compensation were not governed under HIPAA. With COVID-19 looming over the United States, however, employers must understand that if they act on behalf of the health care plan they provide, this may trigger HIPAA rules, which in turn, would limit when employers may disclose certain information about an employee’s medical history or health conditions.  

Read more here.

Non-Disclosure Agreements

If you’ve been to enough business meetings, chances are someone has shoved a document in front of you and asked you to sign it to protect the confidentiality of their information. Or maybe you were the document-shover, hoping to protect your own proprietary information. This type of agreement is typically called either a confidentiality agreement or a non-disclosure agreement (NDA).

While hesitance to sign a legally binding agreement is understandable, there is nothing inherently onerous or diabolical about an NDA. In fact, every innovative, emerging company should require a signed NDA in advance of any meeting where proprietary information may be shared.

Find the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending May 8, 2020

In this week's post, we take a look at the General Data Protection Regulation, and see how two years later, it fails to impress.  With enforcement of GDPR seemingly lacking, critics point to failure in its current state and many worry that privacy protection has lost its momentum.

Also, what does it cost to get a patent and what’s the process for filing a patent application?

Is GDPR Simply a Myth? Lack of Enforcement Raises Privacy Expert Concerns

It has been almost two years since the European Union (“EU”) passed the General Data Protection Regulation (“GDPR”), an all-encompassing legislation that many lauded as the apex of privacy protection law.  But now, years later, many criticize the lack of punishment and enforcement of GDPR’s sweeping regulations.

While the GDPR has quietly fallen to the wayside in the past few months, its failures to enforce came to the forefront recently as efforts to slow the spread of the cornonavirus raised questions about user privacy once again.  As the coronavirus pandemic unfurled across the globe, many noticed that the invasive measures taken by medical and government officials were not flagged under the GDPR as they should have been, which prompted many to question whether there truly is enforcement of GDPR.  While the EU has refused to acknowledge any problems with the GDPR in its current state, experts in the field point to a lack of funding, limited staff, and an overall unwillingness to enforce the law as just a few of the problems that currently exist with the GDPR.

Back when the GDPR was first passed, the EU promised that it would set strict limits and restrictions on the amount of sensitive data that companies could collect from users with or without consent.  Fines that could total up to four percent of an entire company’s global revenue were applauded as privacy proponents felt that only significant fines could dissuade technology giants from continuing their current practices.  And as the GDPR seemed unwavering in its mission to protect consumers, it was not long before other countries followed suit by passing legislation in their countries that closely mirrored provisions of the GDPR or the GDPR as a whole.

But now, two years later, enforcement of GDPR has seen only one technology giant fined and the fine was considered insignificant by most.  

Click here to read the key takeaways and full article.

Have an Invention -- What Are the Next Steps to Get a Patent?

Thinking about pursuing a patent application for an invention? This article discusses the major decision points in the patenting process as well as typical cost ranges for design patent applications, provisional patent applications, utility patent applications, and patentability searches. 

Find the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending May 1, 2020

In this week's post, we see the use of embedding works directly from user accounts may allow third parties to use copyright works without the consent of copyright owners. This arguably could also lead to the loss of revenue for these same copyright holders.

Also, Artificial Intelligence is increasingly used in developing new technology, seemingly inventing new art. However, the USPTO has found AI inventing doesn’t constitute authorship for patenting purposes. This raises questions as to how inventorship should be viewed and whether laws need to change to accommodate the use of AI in R&D advances.

Can Use of Embedded Images Avoid Copyright Infringement?

The creative community was dealt a significant blow this month when federal courts ruled that the embedded images of a photo from an Instagram account did not constitute copyright infringement even when the account owner had specifically denied requests to use the image in dispute. 

Since 2016, Stephanie Sinclair has been embroiled in a copyright infringement battle with technology website Mashable.  Ironically, the dispute arose when Mashable published an article on their website about Sinclair and nine other female photojournalists in order to laud their work in documenting social justice via the camera lens.

As one of the photojournalists listed, Mashable offered Sinclair fifty dollars to license use of one of her photographs in connection with their piece about her.  When Sinclair rejected Mashable’s offer, Mashable proceeded to use Sinclair’s photograph regardless of her consent, opting to embed the photograph directly from Sinclair’s official account.  Sinclair responded by taking Mashable to court.

Read the full article here.

Can Your Computer Be an Inventor? USPTO Says No

The Artificial intelligence (AI) is being used more and more in development of technology, but what if AI inventing already covered a technology that you want to patent?  This is a question that the US Patent and Trademark Office (USPTO) recently decided in US Patent Application No. 16/524,530 (https://www.uspto.gov/sites/default/files/documents/16524350_22apr2020.pdf). 

The USPTO was asked to consider whether a machine named “DABUS” could be listed as an inventor on a patent application because it recognized the novelty of the invention to be patented.  In its Decision, the USPTO found that the definition of “inventor” in the patent statutes does not cover machines; it only covers persons and individuals.  

Read more on the decision here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending April 24, 2020

In this week's post, we see how the global pandemic has begun to have privacy experts questioning the trade-off between consumer privacy and public health as technology companies announce intentions to utilize existing mobile technology and user devices for social tracing to help stop the spread of the coronavirus.

Also, an overview of employees vs. contractors.

The Troubling Trade-Off Between Social Tracing and Privacy

As the global coronavirus pandemic continues to rage across the world, many countries have begun to weigh the trade-off between aggressive contact tracing and individual privacy.  While many health experts credited aggressive social tracing to be the reason for lower death tolls in Germany and China as compared to counterparts like the United Kingdom and the United States, which did not practice social tracing, many wonder at what cost to privacy will new efforts to slow the spread of COVID-19 come.

For months now, technology giants like Apple, Amazon, Microsoft, and Google have all began to provide services that allow users to “screen” themselves for coronavirus symptoms.  For example, Apple teamed up with the Centers for Disease Control and Prevention, the Federal Emergency Management Agency, and the White House to offer a mobile application and website that offered itself as a resource and screening application for COVID-19.

A recent announcement from Apple and Google touts a new joint effort to utilize Bluetooth technology to help reduce the spread of COVID-19 has many privacy experts raising their eyebrows.  Starting in May, both Apple and Google intend to release APIs that enable interoperability between Android and iOS devices that will help public health authorities track the spread of COVID-19 via social tracing.  Through the use of mobile devices, public health officials hope to be able to trace the contact between infected citizens and others in hopes of stemming the spread of the virus.  

Read the full article here.

Employees vs. Contractors

Recently, major companies and startups have been facing challenges about the status of individuals providing services or goods to consumers using a common brand or platform such as Uber or Airbnb. While many of these challenges come from outside of the United States, a number of them have come from within the U.S. Much of it boils down to a simple but important question: Are they an employee or an independent contractor?

In the evolving gig economy, the distinction between the two may be blurred for many who are accustomed to moving from one project to another. However, the distinction is paramount for both parties. 

Find the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending April 17, 2020

In this week's post, we see how the global pandemic has caused a rapid increase in the use of online schooling via online services and mobile applications.  As such, privacy concerns have arisen regarding the transfer and access to students’ personal data and information.

The Rush for Online Schooling Raises Privacy Concerns

The rapid spread of the coronavirus caught much of society off-guard.  As millions of people were ordered to stay home as the virus spread, educators found themselves facing an entirely new dilemma: how to teach students without access to the traditional classroom setting.  In its stead, educators have looked to the Internet to remotely connect with students for online schooling.  However, this solution has raised digital privacy concerns as it requires students to submit data to be reviewed by educators; often without the proper privacy protocols in place that would protect sensitive data. 

Because the systems used online or the mobile applications rolled out by technology companies were launched so quickly due to the online schooling need, many lack the standard terms and conditions or privacy policies that often accompany them.  Similarly, many educators have not been apprised of the risks and legal ramifications of using such online schooling methods without first securing proper permission from parents or guardians.  

Thus, without conducting the proper vetting or due diligence that normally accompanies such rollouts, many schools, educators, administrators, and technology companies have found themselves on the wrong end of accusations of privacy violations and overstepping as online schooling continues.  

Find the key takeaways and full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending April 10, 2020

In this week's post, we see that the recent passage of the U.S. 2020 CARES Act gives the USPTO much-needed authority to adjust, edit, and modify deadlines, fees, and appearance times as necessary to ameliorate the current difficulties at the USPTO caused by the coronavirus.

Also, as the use of video conferencing has become a must, law firms, especially, need to consider the associated security and privacy issues that come with such technology and take actions to ensure the best precautions are taken with the use of video conferencing. 

U.S. Cares Act Extends USPTO Deadlines

As the global coronavirus pandemic has caused frustrating and worrisome delays at the USPTO, the CARES Act provides much needed relief, as it has granted USPTO Director Andrei Iancu with the necessary power to:

• waive certain fees;

• modify or extend deadlines related to filing, appearances, renewals; and

• continue to use such expanded powers at his discretion for a designated time beyond the end of the crisis period.

The passage of the U.S. Coronavirus Aid, Relief, and Economic Security (CARES) Act, passed earlier this month, grants the Director of the U.S. Patent and Trade Office (USPTO), Director Andrei Iancu, much needed authority to affect change in the USPTO as needed to keep the USPTO operating without unfairly punishing parties adversely impacted by the coronavirus pandemic.

Specifically, the 2020 CARES Act grants the USPTO expanded powers during times of emergency and crisis.  Specifically, the CARES Act allows Director Iancu to affect change previously prohibited by statutory law.  For example, Director Iancu may now extend, modify, toll, and adjust deadlines as necessary to avoid the lapse of rights or unfair prejudice towards applicants, registrants, brand owners, and any party appearing before the USPTO.  In essence, the USPTO may now make significant changes to deadlines and fees and take any reasonable measure needed to keep the USPTO's functioning at its core.  

Read the full article here.

What Lawyers Should Do When Using Video Conferencing

As social distancing has created a surge in need for video conferencing, law firms are utilizing video to continue their practice. Lawyers must take actions to help maintain the integrity of their attorney-client relationships when using any video conferencing service by:

• reviewing the service’s privacy policy; 

• understanding what data is being mined from users, and how that data is used;

• ensure the service offers “end-to-end” encryption and other industry-standard security features; and

• utilize all security features offered by the service to help secure individual 

In the wake of the nationwide “shelter in place” orders, which have forced millions of Americans to work from home, many have looked to video conferencing to connect with clients, colleagues and even teachers.  As businesses that can and must still continue to operate, video conferencing for lawyers has become an important must for daily practice. It requires a heightened need for awareness of any potential security issues related to the use of such services.  

Find the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending April 3, 2020

In this week's post, we see as social distancing throws unprepared businesses into remote work situations, business owners should take measures to help maintain business security as well as safeguarding intellectual property rights.

Also, in addition to having huge impacts on the global workforce and food supply, the coronavirus pandemic is also causing significant delays in patent drug cases that are stuck in the federal court system.

Maintain Business Security in a Remote Work Environment: An IP Checklist

It’s been said that virtual working and remote employees would steadily create the future era for businesses seeking lower overhead and flexibility.  However, in the abrupt change calling for social distancing amid the COVID-19 outbreak, many employers seeking to maintain business as usual have been thrown headfirst into virtual working without having put much thought into the process or the legal implications. For those without a prior plan in place, here is a remote work checklist of important intellectual property issues to consider for business security. 

As the general public focus goes to the unfolding global pandemic with many asking “what’s next?” it’s important for business owners to seek to preserve the integrity of the companies they have built by safeguarding business security and their intellectual property rights. Companies that have taken these measures will be in a better position to persevere through trying times:

1.     Address and Maintain Privacy Policies

2.     Protect Trade Secrets and Other Company Intellectual Property

3.     Implement and Maintain Cyber Security Safeguards

4.     Utilize Employee Agreements and Company Policies

Click here for details on the Intellectual Property (IP) checklist and the full article.

Social Distancing and Quarantine Shut Down Patent Cases

As more and more of the American population becomes subject to mandated quarantines and curfews, the new orders have had an unforeseen effect on patent cases involving generic and patented prescription drugs.  The Hatch-Waxman Act entitles certain drug patent owners a 30-month stay in which the FDA won’t grant final approval of a generic drug after a lawsuit if filed.

Read the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending March 27, 2020

In this week's post, we see how the current global pandemic of coronavirus raises issues surrounding breach of contract as people are forced to make changes affecting social interaction, the economy, and business. As the government imposes regulation to stop the spread of disease, people and businesses are finding themselves in breach of contract situations without guidance outside the four corners of their contracts.

The U.S. Small Business Administration (SBA) is offering loans to small businesses struggling in the current conditions surrounding COVID-19.

Also, the closure of the iconic Four Seasons Restaurant in 2019 has led to the sale of associated brand-related intellectual property and connected social media accounts.  This raises interesting questions about the role of intellectual property and social media in today's Internet-dominated world.

When a Pandemic Leads to Breach of Contract: What Are Your Defenses?

As governments around the globe push out regulations to help stop the spread of illness in unprecedented ways, businesses and people alike feel the effects of the changes in a myriad of ways.  In a chain reaction of unexpected events, breach of contract in a pandemic situation easily becomes a common occurrence with parties attempting to abide by government protocols for immediate action.

Some of the hardest hit companies are in the hospitality industry, as most of the scheduled conferences, proms, weddings, and conventions for several weeks are canceled.  Restaurants have closed and had to lay off staff and refuse deliveries from vendors.  And while hospitality struggles, there are vendors and purchasers in other industries that are having their businesses and supply chains interrupted because of the COVID-19 pandemic. 

In some of the instances mentioned, along with many others, the events and orders canceled constitute a breach of contract for which the terminating customer would be liable for damages. Of course, the terminating party likely believes their breach is excused because of the circumstances caused by the pandemic and must rely on contractual impossibility provisions or legal doctrines justifying nonperformance.  However, for a number of reasons a terminating party faces challenges that make their chances of success uncertain. 

Read the full article here.

Is Your Small Business Suffering? Consider SBA Low Interest and Disaster Loans

While there is unlikely to be any segment of business unaffected by the recent events, it’s possible that our smaller businesses may be hit harder, or have a tougher time weathering the storm.  With that in mind, we wanted to share a short summary of resources.

The U.S. Small Business Administration (SBA) is offering low-interest Economic Injury Disaster Loans up to $2 Million for small businesses and non-profits affected by disaster to help meet working capital needs or normal business operating expenses through the recovery period.  The loans can be used to pay fixed debts, payroll, accounts payable, and some other bills that might be hard to pay because of the disaster.

Read more here.

Closure of the Four Seasons Restaurant Leads to Sale of Intellectual Property

As technology and the Internet continues to dominate today’s interconnected world, the closure of the iconic Four Seasons brand restaurant raises new issues in the legal world of intellectual property.  Because the closure of the Four Seasons Restaurant has now led to the associated sale of its trademark and social media accounts, it raises new issues about the role that social media accounts and brand-related property will play in similar future sales.

Despite its closure, however, the Four Seasons brand name still invokes images of well-to-do patrons and high-end cuisine.  As such, it seems fitting that the owners of the Four Seasons brand now look to sell intellectual property and social media accounts connected to the restaurant.

Find the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending March 20, 2020

In this week's post, we see how the current global pandemic of coronavirus has raised new legal issues about an employee’s right to privacy regarding health issues in the workplace.  As employers attempt to stem the spread of the disease, new questions emerge regarding what questions employers may ask their employees.

Also, Larry E. Klayman and Freedom Watch seek to hold Chinese liable for $20T over Coronavirus pandemic.

Employee Privacy Concerns Arise As Employers Implement Coronavirus Preventive Measures

As countries experience the spread of coronavirus across their respective countries, new employee privacy concerns have arisen regarding the myriad questions that employers have begun to ask employees as they attempt to stem the spread of the new virus.   

The rapid spread of coronavirus has led to many companies and employers instituting new policies and standards in the workplace as an attempt to cull the virus’s reach.  Because the virus is able to survive outside the body for approximately three days, many employers have asked their employees to work remotely.  

But for occupations that require workers to be present, many employers have attempted to screen employees as they arrive in order to determine whether or not it is safe for the employee to proceed into the building.  For example, many companies have opted to have employees’ temperatures taken as they enter into the building because one of the most common symptoms of the coronavirus is having a high temperature.

Read more here.

$20 Trillion Coronavirus Lawsuit?

On March 17, 2020, Plaintiffs Buzz Photo, Freedom Watch, Inc., Larry Klayman, and putative plaintiffs as members of the class and subclasses and all persons and entities similarly situated filed suit against The People’s Public of China, The People’s Liberation Army, The Wuhan Institute of Virology, and Shi Zhengli. 

Like the coronavirus pandemic, it is difficult to predict where this lawsuit will end up. However, a lawsuit seeking $20 Trillion in damages against China will definitely raise eyebrows. 

Read more here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending March 13, 2020

In this week's post, new trademark disagreements have arisen from the alleged unauthorized use of trademarks by well-known third-party delivery services.  With increasingly convenient delivery services now becoming the norm, new questions are raised about how trademarks may be used in conjunction with these services.

Also, top Intellectual Property traps to avoid in contracts.

Restaurants Battle Food Delivery Service Companies for Unauthorized Use of Trademarks

As technology continues to improve and innovate, the general public has now seen the rise of third-party mobile applications that allow for the delivery of meals to consumers’ doors even if that restaurant does not traditionally offer food delivery services.  Using their own delivery drivers, companies such as DoorDash, Grubhub, and Uber Eats have become the delivery middleman between consumers and restaurants.

At first blush, these services appear to benefit both restaurants and consumers.  Consumers now get to enjoy a wider variety of food options while staying at home, and restaurants benefit from having access to a wider variety of customers without having to employ their own drivers.  Yet a recent lawsuit filed by a New Hampshire restaurant conglomerate raises new issues about the interaction between these companies and restaurants.  

Great NH Restaurants, a restaurant conglomerate that owns a variety of New Hampshire chains, filed a recent lawsuit against food delivery services companies DoorDash and Grubhub.  Alleging unauthorized use of their logos and menus, Great NH Restaurants is seeking a permanent injunction in addition to damages that would include profits that DoorDash and Grubhub made off of their restaurants.

Read the full article here.

Top Intellectual Property (IP) Traps to Avoid in Contracts

Each Intellectual Property (IP) traps can occur in contracts even when a contract does not specifically deal with the technology sector or the exchange of IP.  For example, most employment agreements at least make mention of IP and may commit the employer as well as the employee to take certain actions, such as not disclosing confidential information.  Accordingly, it is important to be aware of these potential IP traps to be better prepared whether preparing, negotiating, or reviewing a contract.

Find the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending March 6, 2020

In this week's post, we see that the United States Patent and Trademark Office has appealed to the Supreme Court over whether companies may register generic terms combined with .com.  Federal appeals court have sided with the applicant Booking.com. 

Also, an overview of eCommerce and Internet Business law.

Courts Divided Over .Com Trademark Registrations

The United States Patent and Trademark Office has appealed to the Supreme Court after its ruling that Booking.com could not register a trademark for BOOKING.COM.  The U.S. Patent and Trademark Office has rejected Booking.com’s application for a trademark based on grounds that the registration was attempting to register generic words, “booking” and “.com”. 

In response to the U.S. Patent and Trademark Office’s refusal to allow the registration, Booking.com argued that its brand is recognizable enough to warrant trademark protection.  As trademarks have historically been awarded to protect consumers from brand confusion, Booking.com has also argued that approval of its application for booking.com would be in the public’s best interest as it would prevent others from palming off the goodwill established by its brand. 

Other well-known brands such as Salesforce and Home Depot have also filed friends-of-the-court briefs in support of Booking.com.  The companies argue that the U.S. Patent and Trademark Office’s stance is too strict and could result in the cancellation or rejection of several worthy trademarks.  As such, the companies argue that the trademark applications should be reviewed on a case-by-case basis.   

Read the full article here.

Overview of eCommerce and Internet Business Law

Each year a larger percentage of business is conducted over the web, and today’s online companies face a multitude of legal issues related to their online presence, and as they conduct business over the Internet.  These unique and novel issues have given rise to the emerging legal field of eCommerce and Internet Business law.

Internet Business law relates to those unique legal issues and challenges presented by all companies with any sort of web presence, including issues relating to their company website, blogs, social media, and related agreements with designers, web and software developers, web hosts and advertisers.

While all companies with any sort of web presence should address Internet business legal issues, eCommerce companies have additional legal issues to identify and address. eCommerce companies are those companies who not only have a web presence, but also buy and sell products or services over the web.  The added elements of commercial transactions, such as payment and delivery terms, warranties, etc., are in addition to the Internet Business law issues described above.

Read more here. 

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending February 28, 2020

In this week's post, we see differing outcomes in trademark infringement cases that deal with the disgorgement of a defendant’s profits before and after the adoption of the Lanham Act because the Lanham Act arguably requires a showing of willfulness on the part of the defendant. 

Also, an overview of Trademark Assignment.

Supreme Court to Decide on Willfulness Requirement for Disgorgement of Profits in Romag v Fossil

The Supreme Court is scheduled to hear arguments regarding disgorgement of profits in trademark infringement cases next week and whether a showing of willful conduct is required before such awards can be awarded.  

Next week the Supreme Court will hear arguments regarding remedies under the Lanham Act in relation to trademark infringement claims under 15. U.S.C. § 1125(a).  This section specifically deals with the illegal use of a mark, but arguably requires that the plaintiff prove that the defendant acted willfully in order for the court to award the plaintiff a portion of the defendant’s profits as opposed to winning a jury’s determination of damages instead.

In the case at hand, Fossil, Inc. (“Fossil”) had licensed from Romag Fasteners, Inc. (“Romag”) the right to use Romag’s patented magnetic fasteners on some of its handbags.  At the heart of the case is a contract, which Fossil and Romag entered into, that allegedly required Fossil’s manufacturer in China to purchase the Romag magnetic fasteners from Romag’s Chinese licensee.  The claim of trademark infringement arose, however, when Romag noticed that there were Fossil bags, using counterfeit magnetic fasteners, being sold at Macy’s.  After some investigation, Romag determined that Fossil’s Chinese manufacturer was instead using counterfeit fasteners from an unauthorized source to cut costs.

Read the full article here.

Trademark Assignment

A trademark assignment is a document used to transfer rights in a trademark (i.e. logo, name, or symbol) to new owner, a creditor, or even as part of settlement of some other contractual negotiation. An assignment can either carry all the rights associated with a trademark or may be limited in some form or another. 

There are two steps required in order to have an effective trademark assignment. First, you must have a signed trademark transfer agreement, which must include terms of the agreement, payment terms, the rights being assigned, the registration and/or application number of the trademark and any warranties or representations of the parties. The parties should ensure that there are no current or pending claims against the federal trademark, which would be included in the Seller’s representations.

The second step is to file the transfer agreement with the United States Patent and Trademark Office (USPTO). The USPTO has their own filing system where the assignment may be recorded. The UPSTO has their internal assignment system that makes the filing process even easier, which also includes forms for the transfer. The last part of the USPTO filing is to submit a $40 filing fee with the USPTO. 

Read more here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending February 21, 2020

In this week's post, we look at how claims of defamation can be incredibly difficult to win, but a recent ruling by the New York Supreme Court demonstrates that victims can still win even if they are well-known in their industry.

Also, 5 tips in drafting a Managed Services Provider ("MSP") Agreement.

Judge Rules Against Kesha, Finds Kesha Liable for Defamation

Involving huge names like Lady Gaga and Kesha, the New York Supreme Court was under a microscope when deciding another chapter in the long legal battle between pop artist Kesha and music producer Lukasz Gottwald, also known as “Dr. Luke.”  

The long legal battle between Kesha and Dr. Luke began in 2014 when Dr. Luke sued Kesha after Kesha made public remarks that Dr. Luke, her music producer, had been sexual assaulting her for years.  While Dr. Luke sued Kesha for defamation, Kesha counter-sued, asking courts to void her business contracts with Dr. Luke.  Although the courts eventually ruled against Kesha on her business contracts suit, Kesha has already announced her plans to appeal.

While many critics were already doubtful that Kesha would be able to successfully extract herself from the business contracts with Dr. Luke, many were actually surprised that Dr. Luke won on his claims of defamation.  Claims of defamation have always been notoriously difficult to win, especially when celebrities are involved.  Because there are typically many defenses available to a defendant, Dr. Luke’s victory against Kesha was surprising to many.

Find the full article here.

5 Tips in Drafting an MSP Agreement

A Managed Services Provider Agreement (“MSP Agreement”) represents the understanding relating to a IT service provider’s work for a client. A clear and comprehensive MSP Agreement can prevent disputes between clients and service providers caused by misunderstandings or differing expectations.

Although every professional services transaction has unique nuances and challenges that must be adequately addressed in the MSP Agreement, some key areas of an MSP Agreement include: choice of law and forum; scope of work; confidentiality; independent contractor relationship; and ownership of intellectual property.

Read about the 5 tips here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending February 14, 2020

In this week's post, we look at the trademark dispute that erupted from a family feud over corny dogs, which demonstrates the importance of securing preliminary injunctions as soon as possible.  As the Fletcher feud demonstrates that the new brand may secure lucrative deals that may have been available to the original brand, the use of a preliminary injunction is an extremely powerful tool for original brand owners.

Also, an overview of protecting IP and trademarks.

A Corny Dog Battle: The Fletcher’s Family Feud Ends in Litigation

The Fletcher family, famous for its brand Fletcher’s Original Corny Dog (“Fletcher’s”), found itself embroiled in a trademark dispute that came from within.  The Fletcher’s family feud came at the worst time for the Fletcher family as they had been in the middle of reinvigorating the brand for the first time in its eighty-year plus history.  

The Fletcher family was blindsided by the arrival of Fletch, a new company that boasted that they were “purveyors of fine stick food.” Surprisingly, Fletch has been created by the granddaughters of Neil Fletcher, the man who built Fletcher’s Original Corny Dog, introducing the corn dog to Texas decades ago.

While Fletcher’s Original Corny Dog, run by Amber Fletch (daughter of Neil Fletcher), is most well-known for selling its corndogs through the state fair, Fletch, is run by Amber’s niece, Jace Fletcher Christensen.  And while most of the public had assumed that Fletch had the Fletcher family’s blessing, it quickly came to light that this was not so.  

Read the full article here.

Protecting IP: Trademarks

If you sell products or provide services to others, then you likely have some level of intellectual property that requires protection.

Your business name, logo, slogan, or even that unique product design act as trademarks for your products or services, which signify and separate your business from your competitors or cheap knock-offs.

Most businesses never think to protect these integral parts of their business, which can be an expensive mistake. While the Federal trademark application process may seem intimidating or outrageously expensive, it pales in comparison to the issues you may face if you do not learn of potential infringement or even have another company register your trademark first. This article will cover the importance of trademark protection and some of the most pertinent considerations when starting your new business.

Find the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending February 7, 2020

In this week's post, we see Oracle’s copyright infringement suit against Google is to be heard by the Supreme Court.  If the Supreme Court decides in Oracle’s favor, it would have significant impact on how reimplantation and interaction with APIs occur.

Also, singer Michael Lee Aday known as “Meat Loaf” sues Dallas hotel over injuries suffered at the 2019 Texas Frightmare Weekend.

APIs and Copyright Law: Supreme Court to Decide Whether APIs Are Copyright Protectible

The Supreme Court is scheduled to hear an incredibly important case between Oracle and Google regarding whether or not APIs can be protected under copyright law.  

In the case at hand, Oracle has accused Google of copying the API of Oracle’s Java programming language.  For those unfamiliar with the terminology, an API or “application programming interface” is basically the coding language that a computer relies on to execute tasks.  In other words, an API is the language that a computer relies on to know what to do.  Each API houses its own defined terms and vocabulary that includes named commands organized by grammatical structures that designate how the commands will be executed. 

In this case, to execute or perform specific tasks using Java, a programmer must know “how to code in Java.” In other words, the programmer must know the predefined terms, commands, and specific grammatical structures unique to Java.   

Oracle claims that the alleged copyright infringement occurred when Google copied the Java API commands wholesale in order to encourage programmers fluent in Java to program on Google’s Android operating system.  Oracle claims that Google knowingly reimplemented Java in order to entice programmers that were well-versed in Java into bringing their software and expertise to Google.  

Read the full article here.

Three Out of Three is Real Bad: Singer Meat Loaf Sues Dallas Hotel After Fall, Suffering Three Injuries

Famous for the Meat Loaf songs “Bat Out of Hell,” “I’d Do Anything For Love (But I Won’t Do That),” and “Two Out of Three Ain’t Bad,” singer Michael Lee Aday known as “Meat Loaf” sues Dallas hotel over injuries suffered at the 2019 Texas Frightmare Weekend.

According to the Petition, Meat Loaf was injured when he accidentally fell off of the stage, suffering injuries to three areas and requiring approximately 6 weeks of hospital care.

Read more here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending January 31, 2020

In this week's post, we see social media playing a big part in how, and how far, an artist may go with protecting rights after copyright infringement occurs online. However, artists should be aware of how to legally protect their rights and the options available to make their best informed decision on copyright protection.

Also, a discussion of defamation cases involving public figures.

How the Artist Community Can Go Beyond Social Media for Copyright Policing & Enforcement

Artist Jonas Jödicke recently found himself in a social media firestorm after confronting musical artist Aaron Carter on Twitter over Carter’s alleged unauthorized use of his artwork.

In this blog we have written at length about the struggles between artists and copyright infringement, such as an artist’s struggle against copyright infringers that recreated her work in other mediums. [View “Cease-and-Desist Letters are Important Tools in an Artist’s Arsenal”.]  This post will discuss the part social media plays, why inaction can be detrimental, and the legal options artists have against copyright infringement of their works. 

What we see between Jödicke and Carter is a common scenario: lesser known artist takes on more well-known celebrity over alleged copyright infringement.  But because the more famous artist has (arguably) more clout, the alleged infringement is dismissed by the more famous artist.  In this case, Aaron Carter has 626,000+ followers and the enviable “verified” checkmark by his name while Jödicke has 34,000+ followers without the checkmark.

In these cases, the Internet and social media play an important part, affecting the artists both positively and negatively.  

Read the full article here.

Tulsi Gabbard Sues Hillary Clinton Over "Russian Asset" Remark. Defamation or Politics as Usual?

On January 22, 2020, Tulsi Gabbard and Tulsi Now, Inc. filed a federal lawsuit in the United States District Court in the Southern District of New York. The opening paragraph of the complaint sets the tone of the dispute:

Plaintiffs Tulsi Gabbard and Tulsi Now, Inc. (collectively, “Tulsi”) bring this lawsuit against Defendant Hillary Rodham Clinton (“Clinton”) for defamation. Tulsi Gabbard is running for President of the United States, a position Clinton has long coveted, but has not been able to attain. In October 2019—whether out of personal animus, political enmity, or fear of real change within a political party Clinton and her allies have long dominated—Clinton lied about her perceived rival Tulsi Gabbard. She did so publicly, unambiguously, and with obvious malicious intent. Tulsi has been harmed by Clinton’s lies—and American democracy has suffered as well. With this action, Tulsi seeks to hold Clinton, and the political elites who enable her, accountable for distorting the truth in the middle of a critical Presidential election.

Gabbard seeks an award of compensatory, special, and punitive damages as well as injunctive relief prohibiting the publication and republication of certain alleged defamatory statements and an award of Gabbard’s costs associated with the lawsuit. 

In the famous case New York Times v. Sullivan, the U.S. Supreme Court set the standard for defamation claims involving public figures and adopted the term “actual malice” giving it constitutional significance to balance the interests of the First Amendment and the law of defamation. The Court held that a public official suing for defamation must prove that the statement in question was made with actual malice. 

Read the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.

Weekly IP Buzz for the Week Ending January 24, 2020

In this week's post, we see the federal government has bolstered privacy protection for the general public by passing TRACED, a new federal law aimed at curtailing robocalls and texts.  TRACED provides a model for future privacy legislation that may change depending on the technology involved.

Also, an overview of joint ventures.

TRACED – The Newest Law Aimed at Curtailing Robocall Abuse

Congress recently passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED”) with overwhelming support.  The TRACED privacy act is new federal legislation that is directed at decreasing unwanted robocalls. 

The new federal law extends the Federal Communications Commissions’ (“FCC”) statute of limitations on robocall offenses and similarly increases the potential fine amount.  It also calls for the FCC to make more rules that help protect consumers from robocalls and texts.  The TRACED privacy act also calls for an FCC report on enforcement and requires adoption of a timeline for preventing call spoofing.

Privacy experts hope that TRACED, coupled with the overwhelming support for the California Consumer Privacy Act, will encourage Congress to pass more legislation focused on privacy.  As American companies have already acclimated to the stricter standards of the European Union’s General Data Protection Regulation, many privacy experts note that the success of TRACED, which is yet to be seen, may convince Congress that stricter privacy laws are achievable if TRACED is successful.

Read the full article here.

Joint Ventures: An Overview

We have all heard of joint ventures, but what exactly are they? Is it another name for a partnership, or a just temporary collaboration on a project? Joint ventures, as with partnerships, are the simplest form of collaboration between individuals or businesses.

Read more here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.