Weekly IP Buzz for the week ending March 1, 2019

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending March 1, 2019.

Will Congress Follow California’s Data Privacy Legislation Lead?

Beginning in 2020, California consumers will have more control and say over how Internet companies share, sell, and use their data. Under Governor Jerry Brown, a new law slated to begin in 2020 promises that web users can demand that businesses disclose whatever personal information is collected about them and how that data is being used. Under the new data privacy legislation, California consumers will also have the option to tell the same companies to delete that personal data.

California’s Data Privacy Legislation

The California law also seeks to strengthen privacy protection for young children online. Parents and guardians will be required to give consent before any website, online service, or mobile application may begin selling children’s user data. Moreover, if consumers are able to demonstrate that companies failed to properly safeguard the sensitive, personal data of users, the law has provisions that allows consumers to use in case of such data breaches.

While California has been lauded for passing stricter data privacy legislation, many experts fear that the California law, as currently drafted, is too vague to be considered a good model for a national standard. While the federal government has stated that data privacy remains one of its top priorities, very little legislation and action has been taken on the Congress floor.

State Legislation on Data Privacy

To fill the void, many states have passed their own respective privacy laws, which has made the idea of drafting a federal law that accommodates the different patchwork of state laws an even more daunting task. Because states vary on how stringent their data privacy protection laws are, Congress must decide whether federal law will be more stringent than the strictest of state laws or more lenient in order to accommodate other state laws.

And as if this were not perplexing enough, many companies fear that, with also having to comply with the European Union’s passage of the General Data Protection Regulation (“GDPR”), having to accommodate, state, federal, and foreign law will end up bankrupting business.

Read more here.

EU Data Privacy Rules: Google Fined Millions as First Major GDPR Casualty

In February, France’s data protection agency, known as CNIL, fined Alphabet’s Google 50 million euros ($57 million) for breaching the European Union’s new online data privacy rules – the biggest such penalty levied against a U.S. tech company so far.

The penalty against Google was issued for alleged violations of the EU’s General Data Protection Regulation (GDPR), which went into force in May 2018. It allows users to better control their personal data and gives regulators the power to impose fines of up to 4 percent of global revenue for violations.

“GDPR represents a seismic shift in data privacy rules, requiring tech companies to be more transparent about data use, and giving individuals much more power over the collection and use of their data,” says Jim Chester, a global business and technology attorney and partner in Dallas-based technology boutique Klemchuk LLP.

“Although the industry has been aware of GDPR, it is such a fundamental and comprehensive change in how companies need to think about data privacy that many companies have struggled to adapt their policies – there is no clear ‘best practices’ blueprint for compliance,” Chester adds.

Find the full article here.

Click to read the previous Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending February 22, 2019

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending February 22, 2019.

Copyright Infringement of Dance Moves in Video Games

Last year’s video game market was dominated by Epic Games’s battle-royale sensation, Fortnite.  The game combines elements of building defensive fortifications with third-person shooter elements to create an environment where players basically compete in a cartoonish free-for-all that ends with only one player declared to have achieved “Victory Royale.” However, the game’s dance moves have brought up the question of copyright infringement.

Fortnite Breaks Ground in Copyright Litigation with Dance Moves

While Fortnite has achieved considerable success and broken many video game records, it also has broken new ground in intellectual property litigation, specifically in copyright litigation.  While Fortnite is a free-to-play game, it does offer a number of “premium” options for which players can pay real money.  Among some of these premium or cosmetic options is the ability to buy specific dances for the player’s character or avatar. When choosing which dances to incorporate into Fortnite, Epic Games decided to include dances that would appeal to the player base, and as such, programmed in dances that were taken from mainstream, popular culture.

Because these dances, however, have come to be largely associated with the specific characters or celebrities that perform them, Epic Games has found itself in the middle of a flurry of new litigation.  While the choreography and public performance of dances have long been recognizable as copyrightable, whether the dances depicted in Fortnite are subject to copyright is hotly contested by both sides.

Fortnite Defends Dance Moves as Repetitive Animations

Among its many defenses includes an interesting stance that the video game characters are only performing repetitive animations of the “dance moves,” which may be considered part of a process instead of an actual performance.  As such, then for litigation’s sake, the main issue becomes when does a “move” become a dance, and if it is not a dance, can a party still sue simply because that “move” has become associated enough with a particular celebrity or performer?

Read the full article here.

Universal Music Group and Other Music Labels Sue Poker Podcast for Copyright Infringement

On November 16, 2018, Universal Music Group (UMG) and several other prominent music labels filed suit against iBus Media, the parent group for PokerNews and the PokerNews app, for alleged copyright infringement in a federal district court in California. The complaint alleges that iBus Media, through the PokerNews website and mobile application, committed various instances of copyright infringement by illegally playing music content on podcasts hosted through each service. UMG claims that the potential infringement occurred willfully and with knowledge of the illegal conduct. UMG claims to have brought this issue to the attention of iBus Media as early as December 2015 via a cease and desist letter. 

Read more here.

Click to read the previous Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for week ending February 15, 2019

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending February 15, 2019.

EU Data Privacy Rules: Google Fined Millions as First Major GDPR Casualty

Earlier this week, France’s data protection agency, known as CNIL, fined Alphabet’s Google 50 million euros ($57 million) for breaching the European Union’s new online data privacy rules – the biggest such penalty levied against a U.S. tech company so far.

Enforcement of New EU Data Privacy Rules

The penalty against Google was issued for alleged violations of the EU’s General Data Protection Regulation (GDPR), which went into force in May 2018. It allows users to better control their personal data and gives regulators the power to impose fines of up to 4 percent of global revenue for violations.

“GDPR represents a seismic shift in data privacy rules, requiring tech companies to be more transparent about data use, and giving individuals much more power over the collection and use of their data,” says Jim Chester, a global business and technology attorney and partner in Dallas-based technology boutique Klemchuk LLP. 

“Although the industry has been aware of GDPR, it is such a fundamental and comprehensive change in how companies need to think about data privacy that many companies have struggled to adapt their policies – there is no clear ‘best practices’ blueprint for compliance,” Chester adds.

EU Data Privacy Rules Extend to US Companies

U.S. companies have also been uncertain regarding the extent to which they’d be subject to the EU data privacy rules. According to Chester, as penalties and enforcement actions start to happen, a clearer picture of what’s expected will begin to develop.

In this case, the French regulator claimed Google lacked transparency and clarity in the way it informs users about its handling of personal data and failed to properly obtain their consent for personalized ads. In a statement, CNIL said “The amount decided, and the publicity of the fine, are justified by the severity of the infringements observed regarding the essential principles of the GDPR: transparency, information and consent.”

The penalty will likely be the first of many enforcement actions under the new EU data privacy rules, and U.S. Internet companies are scrambling to comply.

Read the full article here.

ICANN is Complying with the GDPR

European Privacy Regulation Results in Changes to ICANN Policies 

The 2018 passage of the General Data Protection Regulation (“GDPR”) created stricter regulations for companies to meet when handling the personal and sensitive data of consumers and users. As such, the GDPR has created lasting impact in areas of regulation that were previously not affected by domestic laws. This changed, however, when the European Union passed the GDPR, forcing the Internet Corporation for Assigned Names and Numbers (“ICANN”) to create new policies to respond to the heightened security standards.

ICANN is a nonprofit organization that oversees and manages the Internet’s global domain name system (“DNS”). ICANN’s responsibilities include the management of root name servers, introduction of any new generic top-level domains (“gTLDs”), and the creation of new policies that govern and manage the DNS system. ICANN’s policies are recognized internationally, and countries look to ICANN to arbitrate disputes regarding the DNS system as well as to maintain the overall stability of the Internet as it pertains to DNS systems, Internet protocol address spaces, and regional Internet registries.

Read more here.

Click to read the previous Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer

Weekly IP Buzz for the week ending February 1, 2019

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending February 1, 2019.

Can One Obtain Registration of Scandalous Marks? The Supreme Court to Decide, Again

In January, the U.S. Supreme Court agreed to preside over a trademark case challenging the initial rejection of the mark “FUCT” for use in connection with the sale of clothing based on the mark being considered “scandalous.” In its original rejection of the mark, the U.S. Trademark Office reasoned that the mark was intended to be a homonym for vulgarity, and as such, violates U.S. trademark law, which prohibits the registration of scandalous marks.

Upon receiving his initial rejection, designer Erik Brunetti appealed the rejection and actually won on appeal. In an unusual move, however, both Brunetti and the court agreed to ask the Supreme Court to rule on the matter as the Supreme Court has made significant changes to U.S. trademark law with its last few rulings.

Many experts in the field expect the Supreme Court to rule similar to a previous ruling last year and find that the “FUCT” marks are protected free speech. However, experts note that the Supreme Court may specifically want to decide the case to provide guidance regarding the petitioner’s use and intent behind the mark.

It will be interesting to see how the Supreme Court handles the balancing of free speech and the registration of scandalous marks that are intended to be vulgar.

Read the full article here.

Trademarks: The Washington Redskins and an Asian-American Rock Band

Most people are familiar with the decades-long controversy surrounding the Washington Redskins’ name and the cancellation of its trademark registrations on the ground that the term REDSKINS is disparaging. One of the issues in that case questions the constitutionality of the prohibition against registration against disparaging terms. Although the Washington Redskins case has most famously addressed this issue, a recent decision involving a fairly unknown Asian-American rock band, THE SLANTS, may prove to be the game changer.

A federal trademark application for “THE SLANTS” was refused registration on the ground that the mark is disparaging. The Trademark Trial & Appeal Board (“TTAB”) affirmed the refusal to register and the Federal Circuit affirmed the TTAB’s decision on appeal. Merely a week later, however, the full Federal Circuit- acting on its own motion- vacated the panel decision and has set the matter for an en banc hearing on one question: Does the bar on registration on disparaging terms violate the First Amendment?

Read more here.

Click to read the previous Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer

Weekly IP Buzz for the week ending January 18, 2019

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending January 18, 2019.

Supreme Court to Decide: Copyright Litigation Registration Requirement

Later this month, the Supreme Court is scheduled to hear arguments regarding whether or not copyright owners must complete the registration process for their copyrights before filing a copyright infringement suit.

In Fourth Estate Public Benefit Corp v. Wall-Street.com, the Supreme Court will decide whether an official copyright registration must be in place before a plaintiff can proceed with filing any type of copyright infringement litigation. Currently, under Section 411(a) of the U.S. Copyright Act, civil actions cannot be filed until “preregistration” or “registration” of the copyright has been properly recorded.

Now, in the case at hand, the Supreme Court must decipher whether the Copyright Act should read the language to mean that “registration” has been met when an application is submitted, also known as the “application approach,” or only once the Copyright Office has actually initiated proceedings on the application, which is referred to as the “registration approach.”

Read the full article here.

Click to read the previous Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending January 11, 2019

Here’s a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending January 11, 2019.

Privacy Breach: Millions of Facebook User Private Photos Compromised

Facebook disclosed earlier this month that it had to correct an unintended coding error that led to the access of private photos of some of its users. Although the bug did not affect all user accounts, Facebook estimates that almost seven million consumers accounts were compromised because an unintended loophole allowed some third-party applications to access Facebook user private photos, namely, photos specifically designated as “private” in user accounts.

The embattled social network technology giant has already had a difficult year with protecting the privacy of its users despite pledging that it had made improvements to its platform. Earlier this year in March, a third-party firm, Cambridge Analytica, was able to data-mine the usage data of Facebook users without express consent or knowledge. Later, in September, hackers breached Facebook’s security protocols and were able to gain full access to the entire directory of Facebook users, which numbers in the tens of millions.

Due to this latest incident, approximately 1,500 third-party applications were able to access seven million user accounts during a twelve-day period before Facebook discovered the flaw. That is a lot of time for unauthorized access to Facebook user private photos without consent or even knowledge. This glitch can become an extremely costly lesson to Facebook, in many ways.

Read the full article here.

Biometric Data Laws Come Into Play

In today’s age of mobile devices and ever-present Internet connectivity, consumers have witnessed the rise of the use of biometric data in lieu of passwords and other means of identification. As technology continues to rapidly evolve, it has now become common practice for mobile devices to use fingerprints, iris scans, or even full-face recognition as a means of “unlocking” secured devices.

In the past, such use of biometric data was limited to entry into secured grounds or facilities such as high-tech laboratories or classified government buildings. Today, however, a myriad of gadgets use such data, including, but not limited to, cellular phones, mobile tablets, and laptop computers.

As these devices have seamlessly integrated such use of biometric data into consumers’ daily lives by using them as data security “protection measures,” such use has often failed to be scrutinized closely by consumers or federal agencies alike. As such, the law lags severely behind in regulating the use, collection, sharing, and storage of such sensitive biometric data.

Biometric data such as fingerprints and iris scans are unique to the user and can easily become a means of identifying or tagging users without their consent. Similarly, the theft or misuse of such data can qualify as identify theft and wreak similar consequences on consumers’ creditworthiness, social security benefits, etc.

Despite this, however, the United States still lacks overarching guidance regarding the use of such data. This may change, however, with a recent lawsuit that is currently being argued in front of the Illinois Supreme Court.

Read more here.

Click to read the previous Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending January 4, 2019

Here’s a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending January 4, 2019.

Mastercard Files Patent for Privacy Coins

A patent filed by credit card company, Mastercard, is aimed at protecting a method for anonymization of electronic transactions via blockchain. This type of patent basically is filed to protect a newer type of cryptocurrency known as a “privacy coin.” Privacy coins are basically another form of cryptocurrency that are designed and intended to make the operation and transaction between and within the blockchains as private as possible.

The basic premise behind the Mastercard patent is that it relies on a new type of request known as an “anonymization request.” Such a request requires the production of a signature to prove that the transaction is legitimate and should be delivered to the destination account. It also ensures privacy and obfuscation of any data, public or private, related to the transaction.

While other privacy coins already exist, this would be the first one patented by a major credit card giant. Previous coins such as Monero, Zcash, and Zcoin, have all preceded Mastercard’s filing, but have had less media focus. And because many users may be uncomfortable with the idea of having so much private data available in electronic form, whether it’s on credit cards, RFID chips, or any newer technology; the aim of privacy coins is to make sure that such sensitive information is protected. It basically promises an anonymization of the wallet and the user’s information as it is related to the blockchain.

Read the full article here.

Patents In Blockchain Based Technology: JPMorgan Chase Files Patent to Cover Payment System

In general, blockchain technology refers to the use of a specialized, digital ledger that is used to record cryptocurrency transactions. These transactions are recorded chronologically and verified by the community that trades and mines that cryptocurrency. Cryptocurrency refers to currency that is virtual and digital and relies on encryption techniques to regulate and validate the generation of more units of that particular cryptocurrency. Together, this technology can be used to transfer funds and self-validate and verify that transfer of funds. In essence, cryptocurrency exchanges allow for currency transactions to operate independently and outside of the traditional banking system. Therefore, an owner of patents in blockchain based technology systems and methods would obtain an upper hand in the blockchain market.

While cryptocurrency and blockchain technology has existed for over a decade now, there have been very few attempts to file for patents or similar forms of intellectual property protection to cover the growing technology. In October of 2017, JPMorgan Chase (“Chase”) filed a patent application that seeks to cover a system that would be used to protect distributed ledgers and blockchain-technology based systems that facilitate their virtual financial transactions.

Read more here.

Click to read the previous Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending December 21, 2018

Here’s a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending December 21, 2018.

How ICANN is Complying with the GDPR

The 2018 passage of the General Data Protection Regulation (“GDPR”) created stricter regulations for companies to meet when handling the personal and sensitive data of consumers and users. As such, the GDPR has created lasting impact in areas of regulation that were previously not affected by domestic laws. This changed, however, when the European Union passed the GDPR, forcing the Internet Corporation for Assigned Names and Numbers (“ICANN”) to create new policies to respond to the heightened security standards.

ICANN is a nonprofit organization that oversees and manages the Internet’s global domain name system (“DNS”). ICANN’s responsibilities include the management of root name servers, introduction of any new generic top-level domains (“gTLDs”), and the creation of new policies that govern and manage the DNS system. ICANN’s policies are recognized internationally, and countries look to ICANN to arbitrate disputes regarding the DNS system as well as to maintain the overall stability of the Internet as it pertains to DNS systems, Internet protocol address spaces, and regional Internet registries.

Since the 2018 introduction of the GDPR by the European Union, ICANN has now found itself tasked with the difficult challenge of reconciling the GDPR’s strict guidelines with the ever-present need for information transparency via the WHOIS database. 

Read the full article here.

What Do You Need to Know About the GDPR?

A European Union Law, the General Data Protection Regulation (GDPR), came into effect May 25, 2018.

The GDPR is the European Union’s new, overarching privacy law and is aimed at giving consumers more control over their personal data in an effort to force companies to provide more transparency over what information they collect as well as to ensure that the personal data collected is well cared-for and adequately protected.

The GDPR affects any organization that collects data on users within the European Union (“EU”), regardless of where the actual service provider is located. As such, as long as a Silicon Valley company is collecting any sort of personal data from users in the EU, that company becomes subject to the GDPR.

The most significant change that the GDPR brings about is that many companies are now asking for your consent to store your personal data.  

Read more here.

Click to read last week's Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending December 14, 2018

Here’s a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending December 14, 2018.

Etsy Lawsuit Involving Beer Eye Chart

Website portals such as Etsy and DeviantArt have allowed consumers to commission and purchase products that are often considered “fan art” such as the “Beer Eye Chart” because the works of art are inspired by the artists’ favorite television series, comics, or book series.

While this practice, like fan-fiction, has generally been allowed because the costs of pursuing litigation is either too costly or would paint the companies in a negative light among their target audiences, the tides seem to be changing. Fan-fiction is where fans of a certain book series, television series, etc., may take the same characters from the series but spin different tales about them. Previously, most brands would not pursue action against authors of fan-fiction because the fan-fiction would often increase brand awareness, promote positive views of the brand, and were often limited in the audience that they reached. Fan-fiction was also often distributed free-of-charge among online fan groups or email lists.

Now, however, fan-created merchandise has created more complex issues. A quick search among websites such as Etsy will return several results of goods for sale that are based upon or inspired by entertainment series. The distinct difference between such merchandise and fan-fiction is that such merchandise is offered for sale and for mass distribution. For example, it is common to see crocheted products, coasters, stickers, etc., that include the likeness of reality television stars. And it was only a matter of time before copyright infringement became an issue among such markets.

Read the full article here.

Music Industry Battles Internet Service Provider (ISP) Over Copyright Infringement

A Texas internet service provider (“ISP”) has taken to federal court to complain about the increased pressure from the music industry to monitor copyright infringement. In a federal filing, Texas ISP Grande Communications (“Grande”) has complained to federal court that record companies from the music industry have attempted to increasingly shift the burden of policing copyright infringement of their copyrighted works by abusing the use of legal takedown notices under the Digital Millennium Copyright Act (“DMCA”).

Read more here.

Click to read last week's Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending December 7, 2018

Here’s a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending December 7, 2018.

Biometric Data Laws Come into Play

In today’s age of mobile devices and ever-present Internet connectivity, consumers have witnessed the rise of the use of biometric data in lieu of passwords and other means of identification. As technology continues to rapidly evolve, it has now become common practice for mobile devices to use fingerprints, iris scans, or even full-face recognition as a means of “unlocking” secured devices.

In the past, such use of biometric data was limited to entry into secured grounds or facilities such as high-tech laboratories or classified government buildings. Today, however, a myriad of gadgets use such data, including, but not limited to, cellular phones, mobile tablets, and laptop computers.

As these devices have seamlessly integrated such use of biometric data into consumers’ daily lives by using them as data security “protection measures,” such use has often failed to be scrutinized closely by consumers or federal agencies alike. As such, the law lags severely behind in regulating the use, collection, sharing, and storage of such sensitive biometric data.

Read more here.

Biometric Data Privacy Laws on the Rise

Innovations in smart devices have introduced the use of biometric data into consumers’ everyday lives. The term “biometric data” refers to digital data used during a biometric identification process such as fingerprint recognition. A biometric process is defined as verification of a person’s identity through the use of that person’s biological traits (e.g., fingerprints, eye retinas or irises, voice patterns, DNA, etc.).

In the past, the use of biometric data as identification was often only seen in spy movies, but today the use of biometric process has become prevalent and widespread thanks to its integration into smartphones. Today, millions of smartphone users utilize biometric processes to unlock their phones and sometimes even to purchase goods or services.

Despite this widespread integration of biometric process, however, few laws in the United States govern the privacy of how this data is stored, used, and protected. Currently, only three states in the United States (Illinois, Washington, Texas), have any laws regarding the use of biometric data, and only four other states (Alaska, Connecticut, Montana, New Hampshire) have legislation pending.

Read more here.

Click to read last week's Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending November 30, 2018

Here’s a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending November 30, 2018.

Music Publishers Target PokerNews Podcast For Copyright Infringement

Even as Congress works to pass new legislation that would address digital music licensing and streaming, record labels and music publishers are still filing mass amounts of copyright infringement lawsuits and takedown requests with the latest target being podcasts. The PokerNews podcast is currently one of the more high-profile copyright infringement cases involving a poker podcast allegedly using unlicensed music recordings.

In the latest lawsuit, the music companies and publishing labels have sued the PokerNews podcast over the broadcast of several unlicensed recordings, requesting damages in the millions of dollars range. While music companies generally argue that content creators, podcasts, streamers, etc., simply need to pay licensing fees to use popular music in their broadcasts, new content creators often fail to secure the proper licensing agreements either out of ignorance or a lack of funds.

Read the full article here.

Music Industry Battles Internet Service Provider (ISP) Over Copyright Infringement

A Texas internet service provider (“ISP”) has taken to federal court to complain about the increased pressure from the music industry to monitor copyright infringement. In a federal filing, Texas ISP Grande Communications (“Grande”) has complained to federal court that record companies from the music industry have attempted to increasingly shift the burden of policing copyright infringement of their copyrighted works by abusing the use of legal takedown notices under the Digital Millennium Copyright Act (“DMCA”).

Grande, a high-speed Internet provider, has claimed that, as the main provider of internet to several university campuses in Texas, it has come increasingly under fire and pressure from at least eighteen different music companies since April 2017. Litigants against Grande include, among others, Universal, Capitol, Warner, and Song; who have all accused Grande of allowing users to “engage in more than one million infringements of copyrighted works” due to alleged abuse by students through the use of bit-torrent services.

Read more here.

Click to read last week's Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending November 23, 2018

Here’s a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending November 23, 2018.

Chilling Adventures of Sabrina Series Leads to Netflix Suit for Trademark and Copyright Infringement

Netflix made waves in the intellectual property news this month but not its usual reasons. Instead of more news about Netflix’s recent licensing deals or television show wrangling, headlines broke about a recent lawsuit against Netflix regarding one of its original series, Chilling Adventures of Sabrina.

In a recent lawsuit filed by the Satanic Temple, Netflix was sued for both trademark and copyright violations. The Satanic Temple is a New York City-based religions organization that prides itself on protecting any blurring of the separation between church and state in the United States. In other words, they are often a protest group that will protest any type of gesture made by federal or local governments that seem to promote religion.

At the heart of the lawsuit is a statue commissioned by the Satanic Temple that cost about $30,000 and was completed in 2014. Although the group unsuccessfully tried to donate it to a state government, the statue ultimately ended becoming a sort of protest symbol that the group would use in other targeted campaigns.

Netflix inadvertently became involved in the situation when it allegedly copied the statue, full scale, for incorporation into its original series. Having not been contacted for use or licensing rights, the Satanic Temple suspects that a production member of the Chilling Adventures of Sabrina may have simply instigated an Internet search for satanic statutes and ended up having the design department copy the statute wholesale, assuming, wrongly, that its likeness or rights were already in the public domain.

A costly lesson could be learned with the use of the statue in the Chilling Adventures of Sabrina. Creative artists should be aware of the importance of attribution, licensing, and distinction from fair use.

Read more here.

Sensory Marks: Hasbro Trademarks Signature Play-Doh Scent

While the U.S. Trademark Office has long allowed the trademarking of scents and smells as sensory marks, few companies apply to have scents trademarked because the application can be difficult to complete and because few companies find it necessary to enforce such trademarks.

This year, Hasbro made news by filing a trademark application to protect the scent of Play-Doh. Although Play-Doh has been around for over two decades, Hasbro only recently decided to file for federal protection of the product.

Because the trademarking of scents is rare, discussion about the process should be examined. Like all trademarks, the applicant must successfully describe the trademark in protectible terms to the trademark examiner. Basically, Hasbro had to describe the scent in a way that was protectible. In this case, Hasbro described the scent as “a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough.”

Like applications to protect sounds, applications for scents fall under the category of sensory marks. The U.S. Trademark Office (USPTO) defines sensory marks as goods that are not physical, but instead, are a sound, feel, or scent that the applicant wishes to protect. Generally, applicants will protect sensory marks in order to ensure that all aspects of particular intellectual property is protected.

Find the full article here.

Click to read last week's Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending November 16, 2018

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending November 16, 2018.

Proposed Australian Privacy Bill Raises Privacy Concerns

While the United States continues to struggle to pass any type of overarching and complete data privacy regulation or legislation, U.S. companies have often had to rely on, or conform to, foreign regulations regarding data security. The most famous example of this comes from the European Union’s passage of the General Data Protection Regulation (“GDPR”). Most privacy experts, domestic and abroad, have lauded the European Union’s creation of the GDPR because it provides strict privacy protection and promises hefty fines for technology companies that fail to safeguard consumer data. Technology giants like Facebook have already faced heavy scrutiny under the GDPR with its recent breach potentially costing it billions in fines. 

Australia’s recent foray into data security legislation, however, has raised concern among privacy experts because it effectively requires technology companies to incorporate backdoor access into their products and applications in order to allow government agencies and services to quickly access and search through consumer data. In its current form, the bill does not require companies who include the requisite backdoor access to notify consumers of the existence of such government accessibility.

Find the full article here.

Congressman Pens Privacy Bill of Rights

Representative Ro Khanna from California has penned a list of ten guiding principles that he hopes to serve as an Internet Privacy Bill of Rights aimed at protecting the privacy of consumers online.

The proposed bill calls for Internet neutrality, the consumers’ right to choose Internet service providers, an overhaul and greater transparency in the policies of how data is collected by technology companies, requirements to opt-in and provide consent for data collection, and timely notification by companies if security breaches occur. Many consumers and lawmakers alike agree that a federal law overseeing how companies handle consumers’ privacy and data rights is long overdue in the United States.

Read more here. 

Click to read last week's Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending November 9, 2018

Here is a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending November 9, 2018.

Trademarking Fruit? About Apple Trademarks

McIntosh, Granny Smith, and Pink Lady are all apple trademarks. Consumers have long been supporting apple trademarks and clubs without even noticing that apples are often sold under their specific trademarks, unlike most other produce. In the past few years, the rise of apple trademarks and apple clubs have resulted in an increase in the variety of apples available at supermarkets. Most of the substantial differences are related to intellectual property rights, however, and not due to significant differences in the look, flavor, or genetic history of the apples.

Unlike most produce, apples are one of the few produce items that are sold and distinguished by cultivar name, which means that consumers will actually pay more for varieties based on their apple trademark name, because of a belief that specific varieties offer unique qualities in taste, color, and flavor. The concept of owning intellectual property rights in produce has existed since the mid-20th century when, for example, apple tree growers began to spend money in growing specific varieties to better profit or sustain easier crop growth.

Find the full article on apple trademarks here.

Nestlé Disputes Potentially Infringing Third Party Trademark Use

Food giant Nestlé has filed a complaint in federal court against a competitor for allegedly infringing upon its LEAN POCKETS® and HOT POCKETS® trademarks. According to the complaint, a New York company operated by Gigi Anthony (“Anthony”) has been selling and promoting food products under the name “Pizza Pocket,” “Pizza Pockets,” and “Russo’s Gluten Free Pizza Pockets.”

Anthony’s food products, which consist of filled-sandwich products, are allegedly infringing upon Nestlé’s HOT POCKETS® and LEAN POCKETS® products and trademarks because Nestlé has long offered a pizza-filled sandwich product under both the LEAN POCKETS® and HOT POCKETS® trademarks. 

Read more here. 

Click to read last week's Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending November 2, 2018

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending November 2, 2018.

Trademark Strategies for Smaller Businesses

When small companies and brands begin to open their doors, they often overlook the importance of trademark registration and enforcement due to either unawareness or an unwillingness to budget for intellectual property protection. However, having trademark strategies at the forefront can help save a business money and help prevent potential conflicts in the future. While most small companies may not have patents to worry about protecting, almost all companies should look into trademarking, at the very least, their company name or brand.

What follows are three core trademark strategies that every small business owner should consider regarding trademark protection.

First: Before any goods or services are ever sold, the brand owner or company should consider engaging counsel to conduct a trademark clearance search.

Second: If a cease-and-desist is received, business owners should be aware of the best strategies to employ to reach advantageous settlements.

Third: Small businesses should seek trademark registration protection of their best brands and products.

Read full article on trademark strategies here for smaller businesses.

Whataburger Versus Wonder Woman

With the reemergence of Wonder Woman in popular media, Texas hamburger chain Whataburger has found itself embroiled in a potential trademark dispute with DC Comics over the ubiquitous “W” logo.

With the resurgence in Wonder Woman’s marketability and popularity, DC Comics has now filed for a number of new uses for the Wonder Woman logo. The new applications now cover a new range of goods that vary from bubble gum to sports drinks. With this recent foray into food and beverages, Whataburger states that they have contacted DC Comics to discuss their respective intellectual property rights and marketing channels.

Read more here.

Click to read last week's Weekly IP Buzz. Read on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending October 26, 2018

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending October 26, 2018.

Amazon Files New Patent to Detect Emotions   

Amazon has filed a new patent entitled “Voice-based determination of physical and emotional characteristics of users” to cover technology that works on the premise that “a current physical and/or emotional condition of the user may facilitate the ability to provide highly targeted audio content, such as audio advertisements or prompts, to the user.” Essentially, the invention would allow virtual assistants like Alexa to detect emotions of its users.

Amazon says that the technology covered by the patent is designed to not only detect emotions of users, but will be able to adapt to learn users’ emotions. Amazon believes that this technology and patent will also cover Alexa’s ability to recognize accents, which will allow the virtual assistant to predict if a specific user may want to access information or products from abroad. 

As technology advances, technology and data counsel should monitor patent filings, such as the aforementioned invention geared to detect emotions, to stay abreast of new technology that will require companies to take additional measures for handling private information when they collect such sensitive data.

Find the full article here.

How Much Does Your Virtual Assistant Know About You?

Amazon recently had to answer to the U.S. Senate after it was confirmed that a product in their virtual assistant line, the Amazon Echo, recorded and then forwarded a private, household conversation to a third party.

While there are technical disagreements between the household and Amazon over whether the recording and forwarding of the conversation was unauthorized, Amazon has now had to answer to Congress regarding privacy concerns that have arisen over the incident.

“Alexa” is not the only assistant accused of spying on us. In 2017, a reporter caught a Google Home Mini virtual assistant not only recording happenings in his household but sending that information back to Google. Google, in response, issued a firmware update to their virtual assistant devices to address the issue.

Read more here.

Click to read last week's Weekly IP Buzz. Read on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk’s law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending October 19, 2018

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending October 19, 2018.

Congressman Pens Internet Privacy Bill of Rights   

Representative Ro Khanna from California has penned a list of ten guiding principles that he hopes to serve as an Internet Privacy Bill of Rights aimed at protecting the privacy of consumers online.

The proposed bill calls for Internet neutrality, the consumers’ right to choose Internet service providers, an overhaul and greater transparency in the policies of how data is collected by technology companies, requirements to opt-in and provide consent for data collection, and timely notification by companies if security breaches occur.

Many consumers and lawmakers alike agree that a federal law overseeing how companies handle consumers’ privacy and data rights is long overdue in the United States.

Read the ten drafted items of the Privacy Bill of Rights and article here.

California Consumer Privacy Act Takes Effect in 2020

California made history recently by passing the California Consumer Privacy Act after unanimous agreement between the California State Assembly and State Senate. While the new 2018 law will not take effect until 2020, both consumers and technology companies in California are deeply concerned about what the new law entails.

With the passage of the California Consumer Privacy Act, California now boasts the most stringent data privacy protection laws in the United States. As such, the state government chose to specifically postpone full enactment of the law until 2020 in order to give both consumers and companies significant time to understand the new rights, expectations, and responsibilities for both communities. California legislators state that their intention in passing the law was to give consumers much more significant control over the dissemination, collection, and sale of their personal data online.

Read more here.

Click to read last week's Weekly IP Buzz. Read on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk’s law practice as an intellectual property lawyer.

Weekly IP Buzz for the week ending October 12, 2018

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending October 12, 2018.

Facebook Hacking Incident Reignites Privacy Debate

Recently Facebook reported that over 50 million accounts were improperly accessed and victims of outside security breaches. The Facebook hacking incident was explained to be caused by a security breach that took advantage of Facebook’s “View As” feature, which allows users to see what their profiles would appear as when viewed as a different user.

While Facebook has since shored up the breach, the Facebook hacking incident had to be made public and has again raised questions of whether or not technology giants are truly doing enough to safehouse users’ personal data.

The United States has still not passed significant sweeping regulation that covers or provides guidance to companies regarding how personal data should be protected. However, the General Data Protection Regulation (“GDPR”) recently passed by the European Union could end up costing Facebook as much as $1.63 billion dollars if Facebook is found to be in violation of its terms. Though this regulation is European Union law, any company doing business with its citizens must comply with the regulation. Read more details here.

The Bill is Now a Law: “Music Modernization Act” Proposed to Help Songwriters

Update: The bill was signed into law on Oct. 11, 2018. In today’s day and age, it has often been difficult for the law to keep up with the ever-changing landscape of the Internet and new technological innovations. The music industry especially has been critical of the way copyrights are enforced and policed, often having to rely on suing universities or internet service providers on theories of contributory or secondary liability to enforce their copyrights or block piracy. The Music Modernization Act would mark the first revolution in copyright law, being the first to truly address technological innovation since digital music has become available. At its core, the law would rewrite how songwriters are paid when their music is licensed or even played. Read more details here.

Cybersecurity Concerns Rise Again With Vulnerable Smart Devices

As a year has passed since lawmakers first discussed the passage of sweeping litigation that would raise data-security standards across the nation, security experts have lamented the lack of recent movement and action on actually passing any relevant laws. Meanwhile, the use of vulnerable smart devices as a routine part of daily life continues to grow.

As the Internet of Things “IoT” becomes more pervasive and expands its access to more and more household devices such as thermostats, pacemakers, and shower heads, the software that these devices use to access the Internet still remains woefully inadequate in terms of data encryption and consumer privacy. Read more about the story.

Click to read last week's Weekly IP Buzz. Read on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

Patent to Treat Addiction Awarded to Opioid Manufacturer

The maker of the highly addictive OxyContin opioid painkiller has been granted a patent designed to treat opioid addiction. The patent includes a version of buprenorphine, which helps curb cravings in people addicted to opioid painkillers and/or heroin.

Purdue Pharma is the maker of Oxycotin and the Sackler family controls the company. Both parties have been the subject of much controversy as well as lawsuits due to their aggressive marketing. Critics claim the prescription drug’s popularity led to the current OxyContin opioid addiction epidemic. Earlier this year, Massachusetts filed a lawsuit against the company, directors, and Sackler family. The lawsuit is a first attempt to hold individuals responsible for the company’s marketing strategy.

Read more about patent to fight opioid addiction.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.

“Music Modernization Act” to Help Songwriters

In today’s day and age, it has often been difficult for the law to keep up with the ever-changing landscape of the Internet and new technological innovations.  The music industry especially has been critical of the way copyrights are enforced and policed, often having to rely on suing universities or internet service providers on theories of contributory or secondary liability to enforce their copyrights or block piracy. This all may finally be changing, however, as Senate overwhelmingly passed the Music Modernization Act with a unanimous vote earlier this month.

Read more about the Music Modernization Act.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.