Trademark Lawyer Blog

In the course of business, you may often receive emails that are punctuated at the end with a disclaimer that reads as follows: “The contents of this email are intended for the aforementioned recipient and are confidential.” But are these messages effective in protecting your valuable business information and trade secrets?

The general answer is that such disclaimers do not protect anything. The reason behind this is that a disclaimer does not create a legally binding contract. For an agreement to be enforceable, all parties involved must agree to the terms. A disclaimer is nothing more than a warning from one party to the other. And besides, what good does the disclaimer do after the entire body has been read?

To protect your confidential information, avoid sending it though email. Instead, send the data through the regular postal service and package it in a box or envelope bearing a “confidential” or “classified information” stamp. If it is absolutely necessary to send the information through email, then place a disclaimer at the very beginning of the message. In this manner, if an unintended recipient receives it, they will not have to read the entire message to realize it is confidential.

Despite a poor economy, a weak job market, and an increasing number of layoffs, now is a great time to buy a franchise. The number of franchises in the industry has increased and created competition among franchisors, which are becoming more aggressive in recruiting franchisees.

Some franchisors have resorted to attracting buyers with discounts on initial fees and costs. For example, one company announced that it would waive a $30,000 franchise fee for qualified military veterans.

Other franchisors have developed creative tactics to target nontraditional franchisees. One such tactic is to offer employee discounts. This plan encourages employees to purchase a franchise by rewarding high performers with a discount on the initial franchise price. The resulting franchises are often highly successful because the franchisee is better-trained and less likely to make costly mistakes.

Franchisors are also offering money-back guarantees to reduce the uncertainty associated with buying a business. A typical guarantee provides that if the business has not reached certain revenue goals after the first year, the franchisor will buy the franchise back. In most cases, the guarantee is only valid if the franchisee follows franchise guidelines in operating the business.

It is a buyer’s market when it comes to franchises. In light of this competition, be aware that many franchisors are willing to negotiate fees and payments structures. If you have thought about purchasing a franchise, consult a franchise attorney for advice and assistance with the acquisition.

I am a personal injury attorney representing the rights of people injured in car accidents through no fault of their own. I am also a Magistrate and Hearing Officer, which means that I act as a judge in Traffic Court in Jacksonville. So naturally, I was intrigued by U.S. News & World Report's recent state-by-state study on America's Worst Drivers.

Florida: we ranked 43rd. That's not bad... if there are 700 states, that is. While Idaho ranked #1, New Jersey bowed out as last year's worst, making way for New York. GMAC Insurance's 2009 National Drivers Test tested 5,000 drivers in each state, evaluating their basic knowledge of driving laws. Alarmingly, over 20% of America's drivers could not pass the written driver's test. That's about 41 million drivers from sea to shining sea who don't know the meaning of a yellow light or how to calculate a safe following distance.

Want to blame grandma and grandpa for our traffic woes? Think again! The study shows a direct correlation between increasing age and improved test scores. In other words, there's a reason why your teenager's insurance premiums are through the roof.

How will you do? Take the test to see if you will fare better than your fellow drivers. I did. Tell me how you did on your test, and I'll tell you how I performed on mine.

Universal Music Group, the copyright holder of Prince's song, "Let's Go Crazy," earned over $6.9 billion in 2007. In February of that same year, toddler Holden Lenz was lucky to take 6.9 steps on his own two feet. But that didn't stop Universal from suing Holden's parents for copyright infringement, when they posted a 30-second video on YouTube of the baby bobbing to "Let's Go Crazy," playing faintly in the background of their kitchen in Pennsylvania.

Long before the tot could sing a nursery rhyme, his case set a precedent in federal court. The Northern District of California interpreted the Digital Millenium Copyright Act (DCMA) as requiring copyright owners to conduct a good faith evaluation of alleged infringement to consider fair use of the work, prior to sending takedown notices to websites like YouTube. Failure to do so could expose the owner to damages. This case essentially placed the burden of preventing online copyright infringement back on the owner.

The DCMA establishes safe harbors for internet hosts, so that they are not liable for the infringing acts of individual website owners or public posts on websites. Online companies like Facebook, MySpace, and YouTube enjoy the benefit of this safe harbor if they expeditiously remove allegedly infringing material, upon receiving a Takedown Notice from the owner. The online company then must notify the posting party, so that he can send a counternotification that he believes, in good faith, that he is not infringing. Unless the owner filed an infringement suit against the posting party, the online company, obviously caught in the middle of this war, then has 14 business days to restore the material on their site.

Because the Takedown Notice is relatively easy to send, and it starts such a flurry of burdens on online companies, the Lenz case requires copyright owners to do their due diligence to first determine whether there has been fair use of their material. Otherwise, the copyright holder faces liability for misrepresentation.

While strict copyright laws are intended to promote creativity, by protecting the rights of those who express creativity on a tangible medium. Although initially counterintuitive to place the burden back on copyright owners to perform due diligence investigations on alleged infringers, this requirement may, in itself, promote creativity. Lenz's attorney, Corynne McSherry argued that people who post on online sites "create a new and more vibrant public sphere," and that these posts should not be discouraged.

I absolutely agree with McSherry. I am one of millions of Facebook junkies. My friends' videos, photos, and posts are what make Facebook so intriguing (and addictive). The fair use of copyrighted material becomes a springboard for my friends' own creative works. Without my friends' contributions, the allure of Facebook would literally fade away.

What do you think? Read more about this story in an article by the ABA Journal. I'd love to hear your comments--contact me to discuss!

In 2008, a California appeals court decided that even if a patient is harmed by a manufacturer of a generic drug for failing to warn consumers of possible side effects, the manufacturer of the brand name equivalent could still be liable for negligent misrepresentation.

In Conte v. Wyeth, Inc., the plaintiff, Elizabeth Conte, was prescribed Reglan for acid reflux. The generic equivalent is metoclopramide. After using the generic version of the drug for four years, she developed tardive dyskinesia, a neurological disorder. The condition is associated with tremors and involuntary twitches. Judge Peter Siggins reasoned that name-brand drug manufacturers know or should know that doctors would prescribe the generic equivalents, and the brand name manufacturers thus must educate doctors and consumers about possible side effects of the drugs, regardless of which version is ultimately prescribed.

It is important to note that the manufacturers of the generic drugs are not absolved. They simply now share liability with their brand-name competitors.

Warez is a term internet users created that refers to illegally downloaded copyrighted works. It likely originated from the plural of “software” as such groups often use specialized computer programs and servers to transfer large amounts of data, such a music and digital films.

Illegal downloading is a serious crime in the United States. In fact, I discussed the harsher penalties recently imposed by President Bush in the Pro-IP Act of 2008.

A Federal Court of Appeals recently upheld a 30-month sentence for downloading copyrighted works through a warez group. The defendant was guilty of illegally downloading films and music from the Czech Republic.

In this case, the defendant was indicted under a Federal statute for willful copyright infringement by reproducing or distributing during a 180-day period at least ten copies of one or more copyrighted works with a retail value of more than $2500. Even though the defendant had no criminal record and did not benefit financially from the activity, a federal judge determined that the prison sentence was reasonable.

All things considered, it is a good idea to be aware of the downloading activities on your computers or networks. According to federal law, many people may qualify for harsh penalties, including some very hard time.

Mayor John Peyton's Summer Jobs Program is a training program for 200 students in Duval County, to prepare them for their summer jobs working for the City. Their training includes team-building exercises, resume-preparation, honing interview skills, and preparing for permanent employment after they finish school. Yesterday, I went to City Hall in downtown Jacksonville, because I was invited to speak to these local youths about my experiences in school, how I prepared to become a lawyer and Magistrate Judge, and tell them about a typical day in my life.

I am embarrassed to admit that I had stereotyped my audience, thinking that a group of 16-21 year olds would be a stoic crowd, interested only in their iPods and flirting with the opposite sex. They really proved me wrong! What an inquisitive and interactive group! They engaged me in vivid discussions about their experiences with attorneys, law enforcement, and legal issues that affected them and the community. They also challenged existing laws and the legal system, wondering why our justice system was designed the way it was, and suggested how it could be improved. I truly got the sense that these young adults sincerely wanted to prepare themselves for the responsibility of supporting their community when the time comes for the torch to be passed to them.

While they may have walked away with the sense that I taught them something about life, I also came from this training session feeling gratified. Those young adults motivated, inspired, and taught me more about the world through their eyes. I am re-assured that the next generation is ready to take care of Jacksonville and the global community around it.

On August 1st of this year, Copyright Office fees are scheduled to change. While basic electronic filing will still be $35.00 per claim, the fees for form CO filing (which is filed electronically, printed out, then mailed to the Office) will jump to $50.00. Paper applications for published photographs will increase to $65.00. Currently, the fee for form CO filing is $45.00 and the fee for a paper application for published photographs is only $45.00. The Copyright Office stated that increased fees for paper applications are associated with the higher cost of processing them.

A copyright protects the expression of your original works of authorship including literary, artistic, or musical compositions and sound recordings. For example, if you register an original set of song lyrics, you can prohibit others from reproducing them without your express authorization. In this manner you may be able to charge royalties in exchange for such authorization.

The change in fee structure may seem slight. However, in light of the current economy, any future increase in registration fees should provide you with the necessary reason to expedite your copyright application and submit it before the changes take effect.

My advice? Get your copyright applications filed before the fee changes! Don't forget to contact a good copyright or intellectual property lawyer to assist you.

Are you a college or graduate student with a good idea for a new invention? Check out the Collegiate Inventors Competition. The competition has recognized, rewarded, and encouraged hundreds of inventors worldwide since 1990.

To be eligible, you must either be a graduate or a college student, or have been enrolled as such in the past 12 months. All entries must be submitted by TOMORROW, June 16, 2009, through the official application form.

An entry shall include a model of your invention that is complete and workable. The invention must be the original work of the applicant and cannot have been made available for public use or patented more than one year prior to submission. Entering the competition does not constitute a public disclosure. Two winners will receive cash prizes of $15,000.00. Additionally, 12 finalists will each win a $2,000.00 cash prize and an all expenses paid trip to present their work to a panel of judges.

Even if you miss this year's competition, you still need to protect your invention! Do a patent search to see what other inventions are similar to yours. It might be in your best interest to file a patent application, to prevent others from using your methods to build your invention. Schedule a consultation with a patent attorney to discuss your legal rights.

If you have a successful business, you may want to consider expanding through franchising. By franchising, you can grow larger and faster because the franchisees provide the funds for the growth, not you.

One important issue to consider before franchising is whether you have developed a strong trademark for your business. This is crucial because a strong trademark delivers a consistent message to consumers about your franchise’s products and services. Franchisees will pay higher royalties for a franchise like Subway, which has a nationally reputed trademark, than they will for a franchise with little or no consumer recognition.

In the very least, be sure to register your trademark before franchising. Registration provides a presumption that your trademark is valid. This will facilitate any claim of infringement in the unfortunate event that one of your franchisees attempts to improperly license or use your trademark.

A strong trademark is a term or phrase that does not merely describe the goods or services. Rather, strong trademarks require imagination, thought, or perceptions to link the mark with the provider of the goods or services. Such marks may suggest the quality of the goods or services, or may not have anything at all to do with the goods or services. For example, Greyhound might imply that a bus line provides fast transportation. Apple, on the other hand, may have nothing to do with a line of computers.

In an earlier post, it was stated that an inaccurate declaration of use on a trademark application would amount to fraud unless corrected before registration. According to a recent Trademark Trial and Appeals Board case, however, such inaccurate statements of use can be cured even after trademark registration.

If the registrant corrects the false statement prior to any challenge to the registration, it creates a presumption against fraud. This means that if the challenging party produces no other evidence to support registration fraud, the registrant will be found not-guilty of fraud. This decision provides a positive direction for future trademark registrants, even though it is not binding and therefore not mandatory authority. The option to cure a statement that has the potential to incur liability of fraud is a benefit to the trademark owner. Many future owners are initially unsure about the exact intended use of their mark. As a result, a common practice is to overstate such declarations of use because an understatement will likely lead to insufficient trademark protection.

Don't take a chance with your trademark application! Have a competent trademark attorney prepare or review your application.

Franchises are built upon sound business models. However, buying into a franchise does not always guarantee success. As a potential business owner, financial success depends on whether or not you are diligent and avoid some of the common mistakes new franchisees often make.

Commonly, a franchisee proceeds to purchase a franchise without fully understanding the terms in the franchise disclosure document (FDD), the document outlining the franchisee's and the franchisor's responsibilities. This results in later misunderstandings between the parties, such as conflicts in fee scheduling and grand opening dates. If you are thinking about buying a franchise, a good idea is to create a list of questions that arise when you review the disclosure documents. Go over this list with your attorney at a later time. Also, present the list to the franchisor for written clarification to your questions.

Another mistake is failure to contact enough current franchisees. By speaking with other franchise owners, you will be in a better negotiating position because you can compare the offer the franchisor made you with offers made to other franchisees. Contact current franchisees other than those referred by the franchisor. In this manner, you will come to understand both positive and negative aspects of the franchise.

Similarly, franchisees also do not investigate failures within the particular franchise. When contacting other owners, find out what has and has not worked for that business. This will help avoid costly mistakes and may even save your franchise in the future.

Avoid these mistakes by contacting an experienced franchise attorney to set up a consultation.