December 31, 2009

Patent Sigh of Relief: USPTO Repeals Prohibitive Rules

uspto%282%29.jpg Newly appointed Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office David Kappos has wasted no time in getting down to business in his new post. Mr. Kappos has moved to cancel a hotly contested regulations package under consideration.

The so-called Continuation Rule, Request for Continuing Examination Rule, and Claims Rule were all supported by the previous USPTO administration. These provisions placed caps on the number of continuing applications and RCEs per parent application, and the number of independent/total claims in an application.

I’m glad to see that these rules will not take effect because they limit an inventor’s options during patent prosecution and reduce the protection he or she can secure. Why impede technological progress for minimal gains in USPTO efficiency? Mr. Kappos clearly made the right play here!

Consult a patent attorney to find out the exact boundaries of current patent law!

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December 31, 2009

Trademark Piledriver: WWE Goes After Wine School Over Use of “Smackdown”

wwe.jpg Since 2007, Philadelphia Wine School has held a culinary and wine competition which it has dubbed Sommelier Smackdown. World Wrestling Entertainment has its own long-running TV show called SmackDown and caught wind of the other use when Philadelphia Wine School applied for a trademark for its name.

WWE is actively trying to put Philadelphia Wine School’s use to an end but Philadelphia Wine School doesn’t plan on caving and is prepared to fight the opposition. Philadelphia Wine School seems to be banking on the idea that “smackdown” by itself is a generic term that cannot be registered.

Even if the generic defense doesn’t pan out, I think that WWE won’t be able to show that consumers will be confused as to the source of Philadelphia Wine School’s event. Call me crazy but I don’t really see Hulk Hogan sitting around, sampling a ’52 Merlot!

What do you think of this face-off? Please post your comments or contact me to discuss!

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December 31, 2009

Accident Prevention: The Landing Plans to Restrict Alcohol Supply for Florida-Georgia

FLGA-Banner-700x107.jpg It’s one of the biggest events in Jacksonville when the Gators and Bulldogs square off at Jacksonville Municipal Stadium. This annual tradition always features thousands of rowdy fans out to have a good time. This year, the Jacksonville Landing is placing several limits on alcohol to avoid some of the altercations that frequently crop up.

Kickoff happens to fall on Halloween at 3:30PM and about 100,000 people are expected to come through the Landing in the days before and the day of the game! The Landing is slashing the number of alcohol sources in half and is eliminating roving shot girls and giant-sized beers.

Both tailgating and the game are always fun and hopefully this year it’ll be a little more competitive. We all need to make sure we don’t put ourselves in dangerous situations and take precautions so that nobody gets hurt either at the Landing or on the roads afterwards. Enjoy the game and have a happy Halloween!

If any unfortunate incidents do occur, contact a thoughtful personal injury lawyer for assistance!

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December 31, 2009

Anti-Monopololy The Board Game

antimonopolyIn light of the excitement surrounding the Monopoly World Championship in Las Vegas, it seems appropriate to recognize the other side of economic board games: Anti-Monopoly. Anti-Monopoly was created by Ralph Anspach in the 1970s and can be purchased on line. The object of the game, which seems fitting, is to break up existing monopolies and restore a free market system.

Anspach’s invention had a rough start. When he first marketed the game, the owners of Monopoly sued for trademark infringement. Anspach defended by arguing that the trademark was void because the idea for the game and the name monopoly was in public domain. Contrary to the official Monopoly history, a version of the game was invented more than a quarter century before the current owner registered the trademark. Public domain refers to intellectual property so widely used it belongs to the public and cannot be restricted by a single party. After an almost 10-year legal war, the judiciary agreed with Anspach. This prevented any further infringement claims against Anti-Monopoly and allowed him to market his game. The Monopoly mark did not become void because the United States Congress amended the Trademark Act to create an exception.

In an ironic twist, Hasbro, which owns the Monopoly trademark, now also holds the trademark registration for Anti-Monopoly. The Anti-Monopoly distributor simply uses the mark pursuant to a license as indicated on the game’s website.

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November 23, 2009

Potential Franchisees Do Your Research First—You Can’t Afford to be Wrong!

j0439419.jpg Earlier this year, Cuppy’s Coffee, a franchise founded in Florida but later moved to Alabama, simply disappeared into oblivion leaving nearly two hundred franchisees without a franchisor. A warrant for the CEO of Cuppy’s, Robert Nabors, was issued in Okaloosa County, Florida, in March of 2009. Some of the investors now face bankruptcy as a result of investing hundreds of thousands of dollars in the franchise but never even getting to open their business. Cuppy’s took the franchisees’ money but, never built their stores. From the start, Cuppy’s was a questionable franchisor; Cuppy’s grew out of the failed franchise, Java Jo’z.

Cuppy’s isn’t the only franchisor to be hit with lawsuits in Florida; I recently posted a blog discussing The UPS Store franchisees suing UPS alleging it withheld information from franchise purchasers regarding profitability. Another franchisor sued by its franchisee is Cold Stone Creamery, which was sued by a Tallahassee, Florida, franchisee on claims of fraud related to the store’s profitability.

I find the continuous stream of investors in franchises and other business opportunities who buy into risky and questionable businesses both startling and saddening at the same time. The most important thing a potential franchisee can do is research the company; that means researching other sources of information about the franchisor and not just relying on information provided by the franchisor itself. Potential franchisees can look to sources such as, franchise magazines, franchise blogs, franchisee associations, and talk to current franchise owners to find out things like what kind of support, feedback, and dispute resolution the franchisor provides. In addition before signing any Franchise Agreement a potential purchaser should seek counsel from an attorney experienced in franchise law.

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Posted In: franchise

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November 20, 2009

Competition is Fierce in The Crowded Coffee Market

coffee.jpg In Jacksonville and northeast Florida we have just about all of them—McDonald’s, Starbucks, and Dunkin Donuts; I am talking about the major franchises in the growing business of selling specialty coffee drinks. Recently, I posted a blog on succeeding in difficult economic times by finding a niche (Lucrative Niches +Established Marketplaces =Better Chances for Franchise Success). In that blog I explained that one way to be successful in a tough economy is by finding a niche that separates your company from the other businesses in the same market.

In this blog I would like to show you how the few franchisors I already listed, along with Tim Hortons and Caribou Coffee, a couple of the other major players in the specialty coffee market (neither of which have locations in Jacksonville), use their niches in the coffee and food chain restaurant business to compete. Here is a brief explanation of what helps each of them succeed in garnering a portion of the market share.

McDonald’s, the largest franchisor, uses its buying power to provide the product at a slightly cheaper price and sells it along with its wide array of breakfast and burger meals.

Starbucks is probably the originator of the specialty coffee boom, so it can rely on the fact that it was the first in the market and that it is primarily a high-end coffee business.

Dunkin Donuts combines its primary product, donuts, with coffee to reach its particular market, and prior to Tim Horton’s entering the marketplace, Dunkin Donuts, was the only one of these businesses offering its customers a wide array of donuts. Dunkin Donuts has recently added breakfast sandwiches in order to compete with McDonald’s and Tim Hortons.

Tim Hortons, like Dunkin Donuts, sells a wide variety of donuts, but it also sells breakfast sandwiches and other foods, including soups and lunch sandwiches.

Caribou Coffee, the only other primarily high-end coffee focused chain besides Starbucks, competes by selecting smaller unexploited markets to locate its stores, avoiding direct competition with Starbucks.

Whatever your business is, you can still find a way to compete in a crowded market by finding your niche. Drop me an e-mail and let me know what you think. As always, I look forward to hearing from you.

Posted by Jo-Anne Yau | | Email This Post

Posted In: franchise

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November 19, 2009

Burger King Facelift--It’s Required!

burger%20king.jpg Miami, Florida based burger franchisor Burger King, the second largest burger food chain in the United States, recently announced it plans to remodel and redesign its 12,000 restaurants worldwide. The 20/20 design—and no, that is not the popular ABC news program’s design—is a determination by Burger King to provide a look that is “contemporary, edgy, and futuristic.” The cost of the remodel and redesign isn’t cheap; franchisees will have to spend between $300,000 and $600,000 for each restaurant. Some of the new design aspects include rotating-red-flamed chandeliers, TV-screen menus, brick walls, and industrial-inspired corrugated metal. The good news for franchisees is that Burger King restaurants already remodeled with the 20/20 design have reported increases in sales between 12 to 15 percent, and some locations that have completely rebuilt their restaurant using the new designs have had sales increases as great as 30 percent.

Ninety percent of Burger King’s restaurants are franchisee owned, and by contract they are required to update their restaurant. Just like Burger King’s franchise agreements, most franchise agreements require franchisees to make upgrades at certain intervals. Thus, it is a contract term that becomes vitally important to franchisees and potential franchisees when they are entering into a franchise agreement. All kinds of issues must be considered on the franchisees part; for example, what are the costs of upgrades, are the upgrades optional or required, who will provide financing if the upgrade will be costly, and what if the franchisee cannot obtain financing? An attorney experienced in franchise law can help you sort through all of these concerns and ensure you, as a franchisee, know exactly what your obligations will be.

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Posted In: franchise

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November 18, 2009

Big Profits and Big Losses

j0399916.jpg Let's say you want to start a chain of restaurants in Florida using NBA star Dwyane Wade’s name as the name your restaurant, and at times, Wade will make personal appearances at the restaurant. Sounds like a great idea for a start-up restaurant to generate a lot of business, especially, considering the fact that for two years straight Dwyane Wade’s jersey has been number one in sales of all NBA players.

We all get ideas at times that we think are sure to generate big profits, unfortunately in the business world we know those great ideas can sometimes end up only generating big losses. That appears to be the case with two investors, Richard von Houtman and Mark Rodberg, who entered into a contract to start D Wade’s Place, a sports themed restaurant bearing the name of its superstar endorser. Both investors are now involved in a lawsuit filed against Wade. In return, Wade has filed a counterclaim against von Houtman and Rodberg and a libel lawsuit against von Houtman seeking $100 million in damages. Currently, the case is in mediation to see if it can be settled.

Oftentimes, persons entering business partnerships plan for splitting profits and job responsibilities but, fail to plan for what happens if the business results in losses. If your thinking about entering a business partnership, make sure you develop a plan that takes into account potential adverse results to the business and partnership. If you have questions regarding the potential risks you should take into consideration, send me an e-mail.

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Posted In: business

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November 17, 2009

European Dismissal: Court Rules That Exclamation Points Can’t Be Registered

exclamation_mark.png The European Court of First Instance has denied a German clothing and perfume retailer’s bid to register an exclamation point as a trademark. Joop! applied for a trademark on an exclamation point logo, both in free form, and enclosed within a box.

A mark has to indicate the source of a good in order to qualify for registration as a trademark. The court said that an exclamation point alone isn’t enough to show a link between a manufacturer and its product. In other words, consumers would not necessarily associate an exclamation point with Joop!

While decisions outside of the United States are not binding on us here, they may be helpful in interpreting our trademark statutes. I think that the analysis done by the EU court is analogous to what an American court would do. Intellectual property is a global field so it’s important to stay on top of both domestic and international rulings!

Want to know if your mark is registrable? A thorough trademark attorney can let you know what the law allows!

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Posted In: trademark

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November 16, 2009

Wake Up Call: New Technology Fights Driver Fatigue

alarm-clock-ringing.gif Effective Control Transport, a Montreal-based company, has developed a new system called Driver's Mate that monitors a driver’s level of alertness and takes corrective action if it falls below a predetermined baseline level. The device mounts onto a dashboard and may be retrofitted onto virtually any type of vehicle.

Driver's Mate uses a camera to monitor 534 points on the driver’s face and rates his or her condition on a scale of completely alert to technically asleep. If the system detects that the driver is not paying a safe level of attention, it will sound off an alarm and will also contact a dispatcher.

As a Traffic Court Magistrate, I appreciate any new technology that makes our roads safer! The problem of drivers falling asleep behind the wheel is huge but it sometimes gets lost behind drunk driving and driving while texting. Unfortunately, the National Highway Traffic Safety Administration estimates that 56,000 crashes every year are caused by sleepy drivers. We all need to take active steps to cut down on accidents that are so avoidable!

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Posted In: patents , traffic

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November 13, 2009

Investment Firms Going Green to Make Green

alternativegreenenergy.jpg Venture capitalists are flocking to green-technology companies to get a cut of the action. Approximately $1.59 billion dollars have been sunk into environmentally-friendly corporations worldwide in the third quarter of 2009. These businesses are developing clean systems ranging from solar panels to electric vehicles.

The government is also investing heavily in these firms through loans, grants, and subsidies. Hopefully, this will become a trend as opposed to a flash in the pan undertaking. Clean technology now takes up around 27% of venture investment.

I, for one, welcome anything that could help loosen big oil’s stranglehold on the energy market! It clearly makes sense to find new sources of energy as the world’s supply of fossil fuels is being depleted at an alarming rate. Especially here in Florida, we also need to look at the impact we’re having on the environment, more specifically our waterways and the Everglades!

How do you feel about green technology? Please post your comments or contact me to discuss!

Posted by Jo-Anne Yau | | Email This Post

Posted In: business

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November 12, 2009

Bad Omen: Jacksonville Jaguars May Start Playing Games in Orlando

jacksonville_jaguars.jpg Desperate to draw in more ticket sales, the Jacksonville Jaguars are considering hosting games in Orlando in upcoming seasons. Jags owner Wayne Weaver is keen on expanding to Orlando and tapping into a population that is underserved football-wise.

While it is important for a franchise to expand its fan base in the hopes of increasing revenues, it shouldn’t lead to dilution of the team's identity and the undermining of home field advantage. Jags management should be focused on bringing in the right personnel now rather than marketing.

Good coaches and a good GM will bring in good players who will make the team better which will naturally lead to better attendance! The key to any solid business is turning out a first-rate product. I really don’t think that the Orlando move can be seen as a positive development. It smacks of desperation by the ownership!

Does this plan worry you as a Jags fan? Please post your comments or contact me to discuss!

Posted by Jo-Anne Yau | | Email This Post

Posted In: franchise

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Jo-Anne Yau

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