Archive for 2010

Online Copyright Rules Are Now More Stringent Says Los Angeles Business Attorney

Wednesday, December 8th, 2010

The writing is on the wall when it comes to new Internet copyright rules. For online writers, this could mean big changes.

“If you write articles that ultimately wind up on the Internet, you need to be aware of the new Internet copyright rules coming down the pike. Over the years, the once familiar ‘fair use’ rules were so badly abused that it was time for a change. The coming change will likely mean even more enhanced scrutiny, something the online article directories will really need to keep an eye on,” said David Alden Erikson, a Los Angeles business litigation attorney. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

There has been quite a bit of interest in developing new guidelines for copyright infringement online over the past few years that has involved the FTC, Congress and news media lobbyists.

“Their major complaint is they want to stomp on content stealing from their sites. Online article writers mostly don’t engage in swiping others material, also referred to as plagiarism, because they tend to know better and it’s an ethical issue. But people being people, you can count on there being someone who has done it now and then and others who do it regularly,” Erikson said.

Perhaps the most frustrating thing about someone stealing another’s online copy content is that there is often no way to track them down. “It’s one thing to have it happen within your own borders – say within the U.S. – but, since the Internet spans the globe, your copy can be stolen by anyone, anywhere, anytime by people in countries that do have copyright rules. Think about this for a minute and you’ll realize that with at least 1.73 billion users globally (and growing daily), having your copy stolen is a real possibility,” Erikson said.

What will happen to article directory sites? If the sites have very strong and ethical editorial guidelines, chances are they will be fine. They have the situation already cased, are on the ball, use expert authors, have a laser-like focus and precise editorial posting rules. For the independent online writer, the touted new rules may be more of a problem.

What are the new rules? For the moment, those in the know are being cagey and not saying too much, but from gleaning information online and from other writers, it appears there will be different methods of enforcement and tracking. “Likely, that’s the biggest issue to resolve, the enforcement and tracking, as there are millions of websites in the world. In fact, if you’re counting, there were 234 million websites in December 2009 and another 47 million were added to that total over 2009. How would one monitor that?” Erikson asked.

Certainly, it’s a brave new world out there online with billions of people linked together, billions of pieces of copy floating around and billions of opportunities to cut and paste. Good thing there is Copyscape to attempt to keep the playing field level.

“But there is more that you need to know, some whoppers about copyright myth,” Erikson said. “For instance, the one that goes if it doesn’t have a copyright notice, it’s not copyrighted. Yes, that was true in the past. It no longer is. Now, in the U.S., just about everything created privately and originally after April 1, 1989 is copyrighted and protected whether it has a notice or not. If you want to be safe, then you need to assume other people’s works ‘are’ copyrighted and you can’t use it. Really, why take the risk?”

There are many other myths that online writers might want to brush up on to stay out of hot water over copyright violations. “If you need information, think you have been ripped off and want to know what to do about it or don’t understand how copyright works, just call my office. I’d be happy to fill you in,” Erikson said.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

Open Source Is An Interesting Conundrum When It Comes To Trademark Issues

Wednesday, December 8th, 2010

Is open source technology subject to trademark issues? This is a question that has two sides to it.

Currently, a large portion of the open source community, referred to as OpenStack, is working on a set of rules that actually let anyone take the software from their open source project and do whatever they want with it. Yes, including sending it all over the place and reselling it, if that’s what the person taking it wants to do with it.

In any other company or group on the planet that was developing software, one of the first issues they’d want to deal with is trademark protection, patent protection, patent infringement, etc., provided they weren’t working on other open source technology, such as Open Office.

OpenStack is a compilation of open source products that offer secure, scalable, standard-based cloud computing software solutions. They are in the midst of tweaking OpenStack Compute and OpenStack Object Storage. Who uses this software? Anyone who needs it can use it, ranging from service providers to corporations and from researchers to global data centers. All of the code is available to anyone, because they believe in the open development model.

Other open source projects do have trademark policies, but the mostly focus on who cannot and who can use the trademark. This is what people find amazing. You’d expect that the policies would deal with who could and could not use the software, so it comes as a bit of a surprise to find out that if you’re dealing with open source technology, all you can protect is the trademark itself and not the product.

Here’s how open source trademarking is protected. The rules are usually written that anyone may use the trademark for general community promotion and that anyone may use the mark if they are shipping a product that is based on the open source technology. So far, so good. But there is a bit of a glitch and that has to do with each particular open source community, meaning, each community has their own set of rules that outlines what they feel is a product that people may take and use open source technology in.

It’s the “what is a product” part of the equation that makes it very difficult to figure out what is trademarked and what is not. This is largely due to the fact that the whole reason for being for the open source community is for others to take what you may have worked on as a solution, tweak it, perhaps modify it, improve it and then pass it on to someone else, without any restrictions.

While it may sound like all the community needs to do is just figure out who gets what, when and why, the needs and reality of the open source community has to be in balance with customers outside the open source community. For instance, in OpenStack’s case, they offer two endeavors that can either go together or remain separate. It’s up to the end user as to how they want to use the technology. This has the potential to create interesting problems legally.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law

Motorcycle Fashion Just Took a Turn for a Lawsuit Says Los Angeles Fashion Attorney Erikson

Friday, December 3rd, 2010

In a page right out of a comic book, the Hell’s Angels are suing design house Alexander McQueen.

“This is a lawsuit one would normally expect to see on the dockets, but there it is,” said David Alden Erikson, a Los Angeles business litigation attorney. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

“This lawsuit involves the Hell’s Angels bikers suing Alexander McQueen’s fashion design house and Saks for trademark infringement. What could the design house possibly be infringing on? Would you believe the bikers death-head design? It seems the death-head is appearing on clothing, handbags and jewelry, and the Hell’s Angels are not amused,” Erikson said.

The complaint alleges that McQueen’s company, Saks and Zappos have been selling death-head goods in stores in California and online. The Angels insist they have been using that mark since 1948 and the skull with wings is now starting to appear in things and on things it should not, including entertainment and promotional services.

“What are they selling? Evidently, the three named defendants have been selling a Hells Angels Jacquard Box dress and a Hells Angels Pashmina that feature the trademark. The jacquard dress sells on McQueen’s website for $1,595 and the pashmina scarf commands $560. There is also a handbag dubbed the Hell’s Knuckle Duster on Zappo’s website with a price tag of $2,329.00” Erikson said.

The named defendants are speechless by choice and refuse to comment on the validity of the lawsuit, preferring instead to perhaps have their day in court. “This is such an interesting case, you might want to find out if indeed the skull with wings is a Hell’s Angels trademark and if that mark is being infringed upon. The case is Hells Angels Motorcycle Corp. v. Alexander McQueen Trading Ltd., 10-08029, U.S. District Court, Central District of California (Los Angeles),” Erikson said.

Questions to ponder may include is it possible that this motorcycle club did register their trademark in 1948? Is it possible that their skull with wings is so closely associated with the bikers that the clothing with the skull on it would confuse consumers?

“Fashion law has a way of sometimes turning out in a way you would least expect it to end. This may be one of those cases,” Erikson said.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

This Trademark Infringement Case May Be A Difference Without A Distinction

Wednesday, December 1st, 2010

Once again things are hitting the fan over trademark infringement. But, is it truly trademark infringement?

In the news lately is the story that Apple, who always seems to be walking a bit on the wild and woolly side, is being accused of trademark infringement over its use of the iPad name. While the lawsuit is being brought by a smaller company, they are serious in pursuing what they feel is a valid case.

Proview Technology, also known as Shenzhen Co., indicated to the media that they have plans to file a lawsuit against Apple for using their registered trademark – iPad – on the Chinese mainland. This is a big step for this small company, as they are in financial hot water, allegedly as a result of Apple selling the iPad on the Chinese mainland and using the same name. While it seems the two companies have met over this issue, there was no resolution of the dispute and no agreement relating to compensation.

Apple isn’t saying much. In fact, they aren’t saying anything in light of the threatened lawsuit. Proview, on the other hand, is quite vocal about taking the giant to court. The date of the lawsuit is not yet clear, but Proview’s spokesperson did indicate they would seek compensation that would include what they consider to be significant financial losses from the dismal sales of Proview’s desktop computers, or iPads, when they were released on the Chinese mainland.

This lawsuit is important for another reason. Proview is struggling to restructure a $200 million debt with creditors and should the win this trademark infringement suit, they may find their way back to financial stability sooner rather than later. Of note is that Proview owns Proview Electronics, considered to be one of five of the largest computer monitor manufacturers globally.

The rest of the story goes that Proview Electronics registered the iPad trademark in Europe and other parts of the world. In 2001, Proview Technology (Shenzhen) registered the trademarks for iPad on the Chinese mainland. Here is where things take a turn for the questionable. Apple bought the trademark for Proview International’s subsidiary in Taiwan in 2006 for $55,000, but, did not get the Shenzhen branch’s trademark rights. Therein lies the problem and the foundation for the lawsuit.

Will they be successful? Will the courts find that Apple is indeed infringing on Proview Technology’s trademark? Or is the fact that the rest of the same holding company, Proview International, sold the trademark in 2006 going to affect the decision? Can a branch of the parent company be considered separate in cases like this?

It is an interesting case to be sure and one that may have the potential to set a precedent, but only time will tell.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

LA Business Litigation Attorney Erikson Discusses International Trademark Infringement Case

Monday, November 29th, 2010

Trademark infringement goes international these days when companies based in the U.S. sue companies based in Europe.

In an interesting international development, U.S.-based Smart Blocks Inc., a maker of construction toys, sued the Danish company Lego A/S, noted as one of Europe’s largest toymakers. Smart Blocks petitioned the federal court for a determination that they were not infringing on Lego trademarks.

Evidently, Smart Blocks, whose headquarters are in San Marcos, Calif., are noted for their talking building blocks that feature six built-in depressible pins. The toys are marketed in seven different colors and have a variety of themes that appeal to children.

Smart Blocks had a shipment worth close to $200,000 blocked by U.S. Customs at the Los Angeles/Long Beach Port in July because there was a trademark issue with Lego. Two months later, the shipment was still on stall and there were no signs it would be released. The company ended up paying thousands of dollars for detention and storage courtesy of U.S. Customs.

“As you can well imagine, this was a significant setback for the company who indicated it had a limited supply of blocks on hand and if they were delayed any further, they may be forced to go out of business,” said David Alden Erikson, who specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

On the other side of the globe, Lego was saying Smart Blocks packaging is infringing on their trademark. “Smart Blocks says they are not, and there is the rub. Lego actually lost a court challenge asking for European Union trademark rights for the shape of their toy bricks. The question is whether or not they will also lose this case,” Erikson said.

Right now, Smart Blocks is asking the federal court to declare its packaging and products are not infringing on Lego’s trademark and they want Lego to stop saying that they are. In addition, they also want their shipment released and the cancelation of several Lego trademarks because they are generic or invalid.

“Where will this case end up? At this point, that is anyone’s guess, but largely, this case depends on how the court views Smart Blocks products in relation to Lego’s products. On the surface, they sound different and look different, but their inherent design may become the key issue. This is yet another good case to watch to learn about trademark infringement,” Erikson said.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

LA Business Litigation Attorney Erikson Says Even Bottles May Be Subject to Trade Dress Lawsuits

Saturday, November 20th, 2010

Trade dress law might apply to bottles. This will have a significant impact on marketplace competition.

A food packaging company may have crossed the line with its fruit-juice packaging and infringed on Coca-Cola’s trademarks. Where that line actually is often causes lawsuit like this one, but behind these types of lawsuits is the desire to protect a well-known brand and not confuse consumers.

Johanna Foods of New Jersey filed a suit in federal court asking for a ruling that says it is not infringing on the trade dress and design patents for Coca-Cola’s Simply Orange brand juices packaging.

“While this may seem to many like a tempest in a teapot, these are important issues to Coco-Cola, which wants to ensure its trademarks (trade dress) are clearly recognizable to its customers. If someone uses a mark close to Coca-Cola’s and causes confusion, not only does Coca-Cola lose business, the consumer is cheated out of an original product,” said David Alden Erikson, a Los Angeles business litigation attorney. Mr. Erikson specializes in Los Angeles fashion law, Internet law, business litigation, trademark and copyright law.

A letter from Coca-Cola’s counsel warned the New Jersey-based company that other companies who had used the carafe-shaped container for their juices had been sued and if they persisted in using the same container, they could expect to land in court. Johanna uses an eerily similar bottle for its line of Nature’s Nectar and Tree Ripe juices, although the labels are different than the ones Coca-Cola uses. Johanna disputes Coke’s contention that the design is an indicator or origin and thus protected by trademark law.

“Counsel for Johanna states that the carafe shaped container is mostly a functional object and therefore can’t be inherently distinctive and that consumers aren’t very likely to be confused by using its containers as opposed to Coke’s,” Erikson said.

This will be an interesting case to watch, as Coke has deep pockets and can hang in there for a substantial amount of time to try and make a point. On the other hand, the court may just make a point of its own based on the interpretation of the functionality of the carafe-shaped bottle design.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

Intellectual property is hard to define

Sunday, November 14th, 2010

Intellectual property is one of those things that generally defies description. Simply put, it’s about patenting a physical product so others don’t copy it.

Intellectual property is just one of those things that people have difficulty getting a handle on, particularly if it happens to be something they think ought to be patented but isn’t, or is patented but they think it shouldn’t be or wonder why it is. Confused? Join the crowd. This area of the law is circuitous at the best of times.

The easiest way to begin to explain what intellectual property is means laying out the concept that it’s a physical product that can be patented so that others can’t copy the design. From there, things tend to get a bit complicated when trying to protect ideas, a range, brand or piece of software. Usually, the best way to find out if you need to patent what you have is to consult with a Los Angeles business lawyer with extensive experience in this area; a lawyer with an IP background.

It might help to know that international law has methods in place to protect ideas and, in fact, that happened in 1967 when the World Intellectual Property Organization proposed that intellectual property protection included rights relating to things such as inventions in every possible field, performances, broadcasts, artistic and scientific works, literary works, industrial designs, service marks, commercial names, trademarks, designations, scientific discoveries and protection against unfair competition. It’s quite the laundry list, but it was intended to be as all encompassing as possible.

In retrospect, if you think you have a case of intellectual property infringement, you need to first figure out what kind of intellectual property you are trying to protect. This is because copyright also applies to books and scientific publications, artwork, broadcasts, performances by artists and phonograms. Phonograms are a phonetic writing system symbol for a speech sound, syllable, or other sequence of speech sounds.

You’ll find copyright protection also used in business deals when the property needing protection is something like a brand name or trademark, whose value lies in the information it provides to consumers in terms of product recognition. Another option you could discuss with your Los Angeles business lawyer is trademarking to protect brand wording.

The concept of intellectual property may apply to new inventions as well as new designs. For instance, if an invention is definitely unique (as in not a take-off of something already in existence), or advances some known technology even further, it’s quite possible to use patent law to protect the invention so others can’t copy it for the future.

The first thing to do when dealing with intellectual property laws when you don’t know which way to proceed is to ask questions. It’s better to hire a knowledgeable Los Angeles business lawyer than to thrash about in limbo and not know what you are doing. If you do it the wrong way, it may come back to haunt you later. Look at it this way, it’s your property, idea, invention, show, design, etc. and you want to protect it. Ask how to do that and save yourself some grief later.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

A new invention shakes Apple to the core

Thursday, October 14th, 2010

There’s a new device on the market that converts an iPod Touch into an iPhone. Apple says the brothers who invented it are copycats who are infringing on Apple’s patents.

There will always be people with bright and inquisitive minds who love to create and invent new things to make existing technology even better. This appears to be the case with two Chinese brothers, Pan Lei and Pan Yong. These two enterprising young men put their heads together and invented a device that craftily converts Apple’s iPod Touch into an iPhone. It’s quite the idea, and the marketplace hails it as being innovative.

On the other hand, Apple Inc. isn’t so thrilled with the invention and is suing the brothers for patent infringement, saying they are nothing but copycats. The problem might actually be that Apple is planning a similar device. At least, that is what a recently published patent application may indicate.

The bothers’ new product, dubbed the Apple Peel 520, is a case that includes a circuit board and battery. It wraps around the iPod Touch media player and lets the user make calls, once the appropriate software is installed. This particular device requires breaking into Apple’s operating system, but it is not considered to be a counterfeit iPhone, insisted the two brothers.

The Apple Peel is, according to the brothers, original and was the joint collaboration of Pan Lei, an interior designer and Pan Young, a software engineer. They launched their new company, Yosion Technology, with the Apple Peel as its flagship product.

While consumers might be thrilled to bits with this new development, Apple, based in California, is taking a rather dim view of the whole thing. The company is seeking a patent on comparable technology, thus the reason why they are so defensive in this latest patent infringement lawsuit. There is a lot of money at stake here given the existing iPod market – 220 million music players released since 2001.

Consumers will also like the price of the Apple Peel, pegged to be about $60, a far cry from initial guesstimates of what Apple’s product (when it’s developed) would cost. Initial speculation is that it may run around $830. What consumer wouldn’t jump at the chance to save $770?

This will be an interesting case to watch as it develops. The core of it will be whether or not the Apple Peel is a copyright infringement or something that takes existing technology even further by inventing something new to turn a product into something else.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Imagine a trademark for pot – the kind you smoke

Sunday, September 12th, 2010

This may be a stretch of the imagination, but marijuana may get a trademark. Stranger things could happen in the world of trademark law.

This is an interesting story and one that may cause a chuckle or two, but, in the long run, may make its mark on the U.S. as a first. Some enterprising pot growers tried trademark their crop recently and were almost successful. The trademark application was actually for something called Tartukan death weed. Sounds attractive, right? Like someone would want to go right out any buy it and give it a whirl.

This application was almost successful for one major reason – on April 1,2010 (not an auspicious day to do this, given it is April Fool’s Day) the U.S. Patent and Trademark Office started offering a new category for medical marijuana trademarks. The category wasn’t open long, but it was definitely no joke, despite the hilarity the Tartukan trademark application engendered. Said the trademark gurus; “We noticed that since the state law dealing with medical marijuana was introduced, there may be questions, etc. about whether or not trademark applications for this could establish lawful use relating to interstate commerce.”

Interstate commerce? As in taking medical marijuana across state lines? It’s a delicate subject. Nonetheless, despite various reservations and concerns about trade marking medical marijuana and any services related to it, this has not stopped Oakland’s Harborside Health Center from making their company name a trademark and also striving to trademark their logo.

Trademarking a health center is one thing; trademarking a specific brand of pot isn’t a good idea, because brands of pot aren’t reliable enough to trademark. Their quality, origin, reliability and potency, among other things, tends to go up in smoke, and there is no surefire scientific method to confirm a certain patch is a certain strain.

Well, the long and short of this story is that if other scientists can patent genes that alter the food we eat, maybe marijuana growers should chase down that avenue and ask about patenting plant hybrids instead.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Hot off the line and hot on the heels of trademark infringement

Thursday, September 2nd, 2010

It had to happen; trademark violation in the donut-making industry. Franchisee loses right to make Krispy Kreme donuts.

Krispy Kreme (KK) went to court to stop a franchisee from operating their New York Penn Station booth and another location. This case took place in a federal court and resulted in a preliminary injunction being granted to KK because the franchisee (Satellite Donuts) was lagging behind on their financial obligations, and were in contravention of the Lanham Act.

Evidently, Satellite Donuts was infringing on KK’s trademarks, continuing to run their business without authorization and “diluting” KK’s trademarks by making lousy donuts. Satellite had actually filed for Chapter 11 bankruptcy, which meant they had an automatic stay. However, the bankruptcy court altered the stay to allow KK to request their injunction in federal court.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

This sad saga began in 2008, when Satellite signed a franchise agreement for Penn Station and in 2009 also signed an agreement for a location in Baldwin, NY. When 2010 rolled around, KK sent a demand letter to Satellite pointing out they had failed to pay $310,046 as their part of the franchise agreement(s). Satellite said they could find another party to invest in their business. KK wasn’t impressed and sent a cease and desist letter along with notification their franchise had been terminated.

KK then sued and got a temporary restraining order that let KK get a quality control person at both locations. At the same time, the court ordered Satellite to smarten up and live up to the quality control standards in the agreements they signed. Satellite felt they had been denied the chance to fix their errors; that KK had inflated the debt and didn’t let them bring in a new investor. The court didn’t agree with that argument, stating KK had proven it would suffer irreparable harm if they didn’t get an injunction.

The key to the decision in this case is the judge’s dictum that said; “When in the licensing context unlawful use and consumer confusion have been demonstrated, a finding of irreparable harm is automatic.”

Cases like this can go either way, and if you are faced with a similar situation, your best bet is to discuss your case with a skilled lawyer who handles trademark and copyright law. It’s an area that many people don’t understand, and consequently wind up walking on the wrong side of the law – either intentionally or unintentionally. Either way, the original owner of the trademark has vested rights and if someone infringes on them, they are well within those rights to sue.

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