Internet law is a bit like a Wild West frontier town without a sheriff in sight. Trademark infringement is common online.

“Trademark infringement online is not that well understood, nor do people comprehend that what they are using from someone else’s site without express permission, amounts to stealing,” Los Angeles Internet law attorney David Alden Erikson outlined.

“When it comes right down to it, trademark infringement on the Internet is out of control. Quite regularly you will see third parties using established trademarks and domain names, etc. with the trademark holder’s permission. Furthermore, the usage of third party trademarks as keywords in ads on MSN, Yahoo, Google and other ad networks is very controversial, as is using those marks in the text of ads triggered by keywords,” added Erikson.

This brings up the need to know about keyword trademark infringement. “Basically it works like this,” outlined Erikson. “Trademark law prevents third parties using established trademarks when using them would confuse consumers about the origin, sponsorship, source or affiliation between the rightful trademark holder and the third party using the mark,” he explained. Of note is that fact that keyword infringement lawsuits have been launched against companies using a trademark and companies like Google who offer the software that people use to advertise.

In a nutshell, bidding on trademarks as keywords will trigger an infringement threat letter from the holder of the trademark; which makes eminent sense, because bidding on their trademarks as a keyword for advertising competition acts to divert their consumers to the competition by taking advantage of the trademark holder’s good will.

On the other side of the fence, the person bidding for the trademark sees using it as a bonus to give consumers even more choices. In other words, the issue is whether or not keyword advertising is an illusory business or valuable marketing. The courts haven’t really delved into this issue a whole lot. Those that have agree that none of the general rules apply.

“What it all comes back down to is whether or not – the ultimate test – is whether the use of the keywords by others (than the original holder) would confuse buyers. This also brings up the concept of ‘initial interest confusion.’ This means most buyers wouldn’t be confused once they got to the competing website, but allows for a trademark infringement claim if the buyer would ‘reasonably’ have been deceived before clicking on the ad,” said David Erikson, a Los Angeles Internet law attorney.

“When push comes to shove, if you go ahead and use trademarks as keyword triggers and also use them in ad text for keyword ad programs, watch your step to avoid being sued. If in doubt, give me a call and we’ll figure it out,” offered Erikson.

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

]]> http://www.daviderikson.com/2010/05/keyword-infringement-common-in-cyberspace/feed/ 0 http://www.daviderikson.com/2010/05/gina-has-something-to-say-in-the-workplace-about-discrimination-in-employment/ http://www.daviderikson.com/2010/05/gina-has-something-to-say-in-the-workplace-about-discrimination-in-employment/#comments Sun, 23 May 2010 16:16:15 +0000 jferris http://www.daviderikson.com/?p=78 Just recently the Genetic Information Nondiscrimination Act (2008) went into effect. There is the potential to use genetic information to discriminate in employment.

The Genetic Information Nondiscrimination Act (GINA) gives the nod to the fact that advances in genetics is crucial, indeed critical, to medical progress. Unfortunately, these advances held the potential to have the information misused against employees. In order to avoid this possibility, Congress passed GINA to ostensibly protect genetic information of workers and ban employment discrimination that may be based on genetic information.

What does genetic information include? Typically, it is a sign of the possible manifestation of a disease or disorder that may run in an employee’s family. Genetic testing usually takes place in clinical research or other areas that examine human RNA, DNA, proteins, chromosomes and/or metabolites which detect chromosomal changes, mutations or genotypes.

Just to avoid some confusion here, according to the Act, it is against the law for employers to fire, not hire or discriminate in other ways against a worker. This would apply to circumstances dealing with pay and the conditions and terms or privileges of their employment based on genetic information. It is also against the law for employers to refuse workers opportunities or use genetic information against them to affect their employment status.

It would seem logical that GINA would also make it illegal for an employer to ask or demand genetic information from an employee or their families. There are, however, some exceptions to the rules, and this is certainly an area you will want to speak to an experienced attorney about if you find yourself in the position of having been requested to provide genetic information.

The exception to the rules come into play when an employer – by accident – asks or requires a family medical history; when a company offers health or genetic services as a component of a wellness program and worker’s provide their written consent; when an employer asks for or requires a family medical history from workers under the FMLA; where the company buys material publically available that includes a worker’s family medical records; and where the genetic information is used for monitoring biological effects of toxic substances in the workplace.

It may seem like there are just too many exceptions that an employer could use to get the prohibited information and if that is the case, then what was the point of the Act in the first place? Fair question and a valid one too. This Act does address this by saying that even if the employer gets genetic information under an exception, they are still prohibited from using it against a worker for any reason.

While there are other safeguards built into this Act that are intended to protect workers whose employers to happen to get their genetic information, it still raises questions about violation of secrecy and privacy. If the employee happens to be dead set against that kind of information being at the hands of their employer and they say so, the company may not retaliate against them.

As you can see, this is a new area and largely untried and untested in the legal arena. It will be interesting to see how the rules are interpreted, if a case that’s filed under a breach of the provisions of this Act makes it to 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.

Most people tend to think of knockoffs in terms of the fashion industry: a knockoff of a famous designer’s dress, shoes, handbag or jacket, etc. “Think McQueen vs. Madden, a rather famous shoe knockoff lawsuit. While clothing seems to have been the major source of the latest knockoff lawsuits, it looks like other companies are getting fed up with people copying their designs and trying to pass them off as their own. Witness this latest case of lighter-making giant Zippo Manufacturing Company who is suing four Chinese companies,” suggested David Alden Erikson, a Los Angeles fashion law attorney.

It’s not just the lawsuit that is making headlines in this case; it’s the fact that Zippo is going to be laying off about 15% of their production line workers, in part because of the knockoffs of their lighters. The country really doesn’t need any more layoffs in these tough economic times, but that appears to be what will happen soon. The company has filed a complaint with the U.S. International Trade Commission to stop the manufacturing and sale of the knockoffs from the biggest source of knockoffs in China.

Along with a downsizing in their workforce, Zippo also cites a 30% drop in their business, due to the knockoffs. If they can stop the flood of fake lighters and business picks up, the out-of-work employees will be called back. “While a lighter is hardly an item of clothing, the principal behind it being ripped off is quite similar to a fashion designer seeing their creations sold at cheap prices to anyone who wants a look alike,” added Los Angeles fashion law attorney Erikson.

Sick of being knocked off, fashion designers have started to fight back and are working with the Council of Fashion Designers of America to get their fashions copyrighted. Those who can’t afford the big ticket original designs appreciate getting the almost originals for less money, but fashion designers have had it with the rip-off artists cutting into their bottom line profit.

If designers are able to register their designs with the U.S. Copyright Office, they would then be protected for three years, and it would be illegal for anybody to make anything even remotely similar. “Would this solution, should it come to pass, work for knocked off lighters? It may, but only time will tell who will win the war of the similar looking product with a similar (but misspelled) name at the cheaper price,” speculated Erikson.

The whole question here is the rights of designers and original makers of various items (purses, jewelry, watches, etc.) to have their product protected from someone else who would steal it and profit from it. This problem isn’t really new, but the time has come when the original makers are fighting back and taking action.

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

Unfortunately, they can’t.

Copyrighting a fashion design is not possible because it does not provide the creator of that design with the kind of protection they really want – protection from knockoffs. In fact, the converse is true when a fashion designer gets ready to launch a new design; they expect they will be copied. Often, they get knocked off before their product even hits the market; such is the cutthroat competition within the industry.

Until recently, this dire state of affairs has caused a great deal of angst among designers who want to go places but want their creations to remain their own and not show up under someone else’s label as a “less than perfect copy” of the original. There may be good news on the horizon in the form of the Design Piracy Prohibition Act – if it actually passes into law. This bill would offer copyright protection for fashion designs widely defined as eyeglass frames, duffel and tote bags, handbags, purses and clothing. Admittedly, clothing is a tad vague, but chances are that would be sorted out in the courts when push came to shove and a lawsuit was filed.

This Act actually amends Chapter 13 of the Copyright Act, which you may find rather interesting since that chapter provides protection to one category of useful articles, boat hull designs. Wondering what boat hull designs have to do with clothing, et cetera? The key here is the term “useful article.” Currently, fashion designs are classified as “useful articles” and have what is referred to as an intrinsic utilitarian function. There is more to that definition, but you have the key element.

Right now, designs of useful articles may be protected under copyright law “only if such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” In addition, there is very limited protection to be had under trade dress (trademark) and design patents (patent) law. The problem with those two “protections” is that they’re not practical for the fashion industry.

The proposed Act suggests a three year protection for fashion designs. Why? It’s limited because typically fashion trends are rather short-lived at the best of times. You’ll also find out that applications for protection may be filed at the U.S. Copyright Office, where it would be put on a database of protected designs and images of that design.

The Act also aims to narrow the definition of innocent infringement so that the courts are able to impose liability on those who had reasonable grounds to believe a design was protected. It would also boost damages for infringement, something the fashion industry would be enormously happy to see.

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.