Posted By Francine on January 24, 2012

U.S. Supreme Court decision (1/23/2012).

GPS Tracking and Cyber Law

In a case decided yesterday, the US Supreme Court unanimously held in U.S. v.Jones that GPS surveillance requires a warrant. The Court said that “…the Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the 4^th Amendment.” The government violated the defendant’s 4^th Amendment rights when it placed a GPS device tracking device on his car and tracked his movements for a month.

This is the first time the high court has considered the constitutionality of a GPS tracking device. While this case is about whether police need a warrant to install a GPS tracking device on a person’s car, an argument can be made that this holding can influence a court’s decision on cell phone tracking.

To read the Supreme Court decision, visit here. http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf.

What are your thoughts? Join the conversation on my Facebook Fan Page or in one of my LinkedIn groups.

Until then, I’m Attorney Francine Ward helping you protect your self!

Category: Cyber law | No Comments »
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Posted By Francine on January 12, 2012

Facebook just cannot stay out of the news–and it’s a good thing.

Fortunately, it provides me and other lawyers and legal pundits with plenty of juicy topics to discuss, and teaching opportunities for new and seasoned entrepreneurs.

Facebook Lawsuit & Paul Ceglia

Last year, everyone was saying that Paul Ceglia, the man who claimed to own 84% of Facebook, was crazy. They focused on the fact that he was a convicted felon and had waited years before coming forward with his allegations of Facebook ownership.   As a minority voice, I said, don’t get side-tracked by what appears to be silliness, and Ceglia’s criminal record has nothing to do with whether Mark Zuckerberg entered into a valid and enforceable contract with him.  In fact, I said the bigger issue is what happens when we sign contracts that we don’t read or understand—they sometimes come back to bite us.

Now it appears with the new lawyers Ceglia has hired (DLA Piper), they seem to think more like me, in that, there may be enough to consider that a valid agreement exists.  A new lawsuit has been filed.  And even if it is ultimately determined that Mark Zuckerberg owns Facebook free and clear of any encumbrances, it has cost him a fortune to make that determination.

The takeaway for new entrepreneurs, and more seasoned entrepreneurs who think they know, what they don’t know, is to have competent legal representation BEFORE you sign anything and have competent legal representation to draft ALL agreements.

What do you think about this?

Join the conversation on my Facebook Fan Page, one of my LinkedIn discussion groups, or on Twitter.

Category: Breach of contract, Business, contract law, Contracts, Facebook, Facebook lawsuit, Francine Ward, how to protect content, Intellectual Property, litigation landmines, Litigation lawsuit, Paul Ceglia, Valid contract | No Comments »
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Posted By Francine on December 13, 2011

ABA Commission on Ethics 20/20 Rule — Initial Draft Proposal (Admission by Motion)

The ABA Commission on Ethics 20/20 is holding a public hearing on Thursday, February 2, 2012, from 9:00 a.m. to 12:00 p.m. at the Sheraton New Orleans Hotel in New Orleans.  The Commission will discuss, among other things, the proposed rule on Admission by Motion.

American Bar Association Model Rules

The proposed resolution, which has not yet been adopted, will resolve that the ABA adopt an amendment to the Model Rule on Admission by Motion. This amendment would make it easier for lawyers to become admitted to practice in another state, without having to sit for that state’s bar exam.

Good news for many seasoned lawyers who have wanted to relocate to a warmer, or more conducive environment, but who chose not to do so because of the thought of having to sit for,  yet another exam.

Here is the full proposed rule. What do you think?

Category: ABA Model Rules, American Bar Association Model Rules of Ethics, Ethics, Law and ethics, Uncategorized | No Comments »
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Posted By Francine on December 11, 2011

Fluid Trademarks: Can they be protected?
A “fluid trademark” is one where the owner makes significant and continuous changes to the registered trademark, often to secure new customers or retain existing ones.  By making these creative and obvious changes, the brand owner hopefully keeps internet users interested and coming back for more.

When discussing “fluid trademarks” we are not talking about periodically updating a mark, instead we mean altering a mark to the extent that it takes on a new look and feel, while still displaying the essence of the original protected trademark.

Google Fluid Trademark

Google and Its Fluid Trademarks.
The best example—in popular culture—of a company that has done this successfully is Google.  On its website, Google characteristically modifies its original trademark on different days of the year, such as Christmas, Halloween, and Thanksgiving. And in an effort to establish goodwill, Google encourages user participation in the creative process.

While creating “fluid trademarks” is a fun and creative way to keep users engaged, there is a risk of losing trademark protection for the original mark?

Potential Challenges for a Brand Owner.
Here are 3 potential challenges that the trademark owner may face when permitting their mark to become fluid:

1. It will invite renditions not approved by the trademark owner.
2. The public could become confused as to the source of the trademark.
3. There is a risk of cancellation based on a claim of abandonment, if the original mark is not used as registered.

Google Fluid Trademark

So if you are a brand owner looking to protect your trademarks, use your trademark in exactly the way you told the USPTO you were using it when you filed your Statement of Use.  If Google gets challenged, or gets sued, it has the money to defend itself.  Do you?

What are your thoughts?

Join the conversation on my Facebook Fan Page or in one of my LinkedIn Groups. Also feel free to check out my website for more information.

Category: Brand owner, Trademark, Trademark application, Trademark Copyright Attorney, Trademark Law, Trademark owner, trademark protection, Trademark registration, Trademarks | No Comments »
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Posted By Francine on November 22, 2011

The Federal Trade Commission (FTC) is a federal agency, which helps protect consumers by preventing fraudulent, deceptive, and unfair business practices, and providing information to help spot, stop, and avoid them.

Online Internet Marketing and the FTC

The FTC has approved modifications to its Business Opportunity Rule designed to provide consumers with information needed to assist consumers when investing in work-at-home business opportunities. The new ruling, among other things, requires a seller to provide potential buyers sufficient and relevant information, such as:

• the seller’s identifying information;
• whether the seller makes a claim about the purchaser’s likely earnings (and, if the seller checks the “yes” box, the seller must provide information supporting any such claims);
• whether the seller, its affiliates or key personnel have been involved in certain legal actions (and, if yes, a separate list of those actions);
• whether the seller has a cancellation or refund policy (and, if yes, a separate document stating the material terms of such policies); and
• a list of persons who bought the business opportunity within the previous three years.

For more info check out the FTC website. Also, read Selling a Work-at-Home or Other Business Opportunity? Revised Rule May Apply to You or watch this new video.

What are your thoughts about this new FTC Ruling? Join the conversation on my Facebook Fan Page or visit my website for more legal information.

Category: Advertisng Rules, Affiliate Marketer, Affiliate Programs, Blog Law, Business, Business Law, False Advertisement., False Advertising, False and misleading, Francine D. Ward, Francine Ward, FTC Rules, FTC Rulings, Intellectual Property Information, Intellectual Property Protection, Internet law, internet policy, Legal, selling products, selling products online, Social media, Social media law, Uncategorized | No Comments »
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Posted By Francine on November 8, 2011

Are YOU:

• a new business owner?
• in the dark about what you need to do in forming your new business?

Over the next few weeks we will take a look at some small business start up issues and resources. Depending on the nature of your business and its location, some things may or may not apply to you.  A few documents you can obtain and even prepare on your own, and others, you may want to consider hiring a lawyer to help with. Legal documents should be prepared carefully.

Small Business Start up

For starters, here is a short list of some business filings you can do yourself:

• Federal Taxpayer Identification
  • Application for employer taxpayer identification number (IRS Form SS‑4)
• Fictitious Business Name Filing
• City Licenses and Registrations
  • Various forms available from city business license office
• Registration to Do Business in [YOUR State] for Foreign Entities
  • Statement and Designation by Foreign Corporation
  • Registration of Foreign Limited Partnership
  • Application for Registration
• Business Property Tax
  • Business personal property registration and return—county tax assessor

For more information on what you need to do as a Small Business Start up, feel free to contact me for a consultation. I can be reached at Francine Ward Attorney or info@fwardlawyer.com. Feel free to join my Facebook Fan Page for conversation.

Category: Business, Business entities, Business entities type, Business entity, Business Law, Close corporation, Small Business Entrepreneur, Small Business Starup, small business tips, Start-up, Start-ups | No Comments »
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Posted By Francine on October 23, 2011

Copyright Information

Are you a freelance designer, musician, or writer? Do you hire them?

• Did you design a logo for a business that is now successful?
• Did you ghostwrite a book for an author that is now a bestseller?
• Did you write (or collaborate on) a song that is now a hit?
• Did you design a cartoon character that is now worth millions?
• Did this happen before 1980?

Or,

• Did you hire a freelancer to design the logo, which is at the core of your successful business?
• Did you hire a ghostwriter to write your now bestselling book?
• Did you hire someone to write (or collaborate on) your hit songs?
• Did this happen before 1980?

You may be in for the surprise of your life.
Have you noticed that the logo you designed back in the day has now become the center of a super brand, e.g., clothing line, super premium liquor, coffee, or budding sports franchise?

Did you sign a “work for hire” agreement? Did you not? If you did, was it prepared by a lawyer or did you acquire the “contract template” from a friend?

The answer to any of the above questions will determine if you are in for big trouble, or in for the windfall of your life.

Copyright Termination (Can I get my copyright back?).
The United States Copyright Act provides, in relevant part, that 35-years after the transfer of a copyright, the creator may—if they choose—terminate that transfer. There are a number of factors that will determine if this is true, the least of which is if you signed a contract that can hold up in court.

In less than two years (2013), the first batch of transferred copyrights will be eligible for termination.  Now is the time to speak with a lawyer who specializes in copyright terminations to determine if you are in for the surprise of your life.  You can wait, you can put it off, or you can pretend it  does not apply to you. That’s a dangerous and potentially costly choice you can make, or you can find out what this all means to you.

What could it mean for you?
It means you could either be entitled to get back your valuable rights or get a piece of the profits derived from your creative work. Or, if you hired a logo designer/ ghostwriter/ musician, you might be entitled to say “good riddance” to them forever.  Now is the time to find out where you stand.

Who should be paying attention?

• Creative People
• Graphic designers who designed logos
• Musicians who wrote songs and/or jingles
• Ghostwriters who wrote manuscripts, blogs, articles
• Authors who got published and were not happy with their publishers
• Anyone who created content for a tiny bit of money, and now sees their creation at the core of a successful brand
• Small business owners, owners of famous & successful brands with logos designed by freelancers
• Anyone who signed a work for hire template from a friend, the internet, a software package and did not have a lawyer review it
• Anyone who signed a work for hire agreement prepared by a lawyer

Don’t be like so many entrepreneurs who either totally ignore the warnings, or wait until it’s too late. Now is the time, long before 2013 to see what your rights are and what your next steps should be.

I’m attorney Francine Ward helping small business entrepreneurs protect what’s theirs! Join my conversation or feel free to contact me.

Category: Business, Copyright Duration, Copyright Expire, Copyright Information, Copyright law, Copyright Ownership, copyright rights, Copyright Rules, Copyrights, Transfer of Copyright, Uncategorized | No Comments »
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Posted By Francine on October 13, 2011

DON’T put off until tomorrow, what you should do today.

Twitter. Trademark Registration.

This has been a very expensive lesson for Twitter. And, while it’s nice to have the money to fight the BIG fight, why waste it on lawsuits and US Patent & Trademark Office challenges. This problem could have been resolved had Twitter registered its trademark when it started using “tweets”.  But Twitter waited, and now gets to pay–a lot!

Lack of Money is No Excuse.
If you’re an small business entrepreneur, you may be saying,

“But I can’t afford a lawyer to register my trademarks.”

Lack of $$ is no excuse. If you can afford to pay for daily lattes, cigars, drinks, dance clubs, those cute shoes, and music downloads, consider investing in the protection of your valuable intellectual property.

Registered Trademark

Overnight Success.
There are many individuals and businesses that acquire overnight stardom. Thanks to things like, reality shows, YouTube, good PR marketing, Twitter, and Facebook it is not unusual to be an unknown one day and a celebrity the next. Since you never know when you and your company will become a valuable asset, protect yourself now.

Facts of the Twitter vs. Twittad case:

• Twitter was formed as a company in 2007, and took off
• In 2008, Twittad, a small Iowa company, filed a trademark application for “Let your ad meet tweets”
• In 2009, Twittad acquired a registered trademark in “Let your ad meet tweets”
• In 2010 Twitter tried to register “tweet”, but was opposed consistently because of the Twittad registration
• Twitter took Twittad to court to have the registration assigned to Twitter
• A few weeks ago, the case was settled and Twitter won.

But rest assured, in order for Twitter to have won, they had to pay a pretty penny to lawyers to clean up the mess. You do the math $3000 for a trademark application filed by a competent attorney, or $200,000+ to pay a lawyer to clean up the mess, plus additional settlement fees.

Takeaways:

1. If you have a distinctive logo, design, phrase, mark and you think it will be a significant part of your brand, register it now!
2. Hire someone who knows what they are doing to handle it for you, because doing it wrong can be as bad as not doing it at all

Until next time, I’m Attorney Francine Ward looking to help you protect what’s yours. Interested in learning more useful legal information, check out my Webinars. They’re affordable and all are recorded.

Category: Intellectual Property Information, Intellectual Property Protection, Trademark, Trademark Law, trademark protection, Trademark registration, Trademark Search, Trademarks, Twitter | No Comments »
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Posted By Francine on October 7, 2011

Authors of copyrightable work BEWARE.  Before you think about combining forces with another author, musician, or any collaborator—READ THIS!

For years I have been telling clients that collaborative relationships can create more problems than a few. And if you choose to enter into such relationships, you should have a lawyer on your team.  Here is why: The average person who collaborates on an artistic project doesn’t stop to think about the legal issues involved. Without knowing it, you can inadvertently give up (or limit) your rights.  And it’s only after the relationship falls apart that you realize what you could have done differently.

Recently, a federal court in Tennessee (Severe Records LLC v. Rich, 6th Cir., No. 09-6175, 9/23/11) reaffirmed what most courts have held and what all competent copyright lawyers know all too well—joint copyright owners, each, have the same rights. They have the right to sell, display, assign, transfer, or create derivative works based on the work of art or authorship, and there will be no claim of copyright infringement if they do.  In essence, the court said, joint copyright holders have the right to fully exploit their copyrighted work without the permission of the other copyright owner.  While they may need to account to one another for profits, they do not need permission to do anything.

Briefly, in this case, a music producer/songwriter wrote a song, and then he and the singer recorded the song together. They were so happy with the results of their first venture that they decided to co-author and record a second song. They were joint copyright owners. Then, their relationship fell apart. The singer then signed on with another management and recoding company, and transferred all of her rights in both the music and the sound recordings to the new company. One of the joint copyright owners claimed that the other was committing copyright infringement because they were selling the recordings without the consent of the other.

While the court did not specifically address the issue of ownership, in a round-about manner, the court said that both joint copyright owners have the right to do anything they want with her work, and that the other party cannot be charged with copyright infringement if they do something the other author does not like.

Takeaway for collaborators:

1. When you decide to enter into a joint collaborative relation talk to a lawyer first
2. Have a written agreement that clearly defines who owns what
3. Understand that each joint copyright owner has the right to do anything they want with the work

Until next time, I’m Attorney Francine Ward helping you protect your Assets! Feel free to browse my website and join the conversation on my Facebook Fan Page.

Category: asset protection, author, Authorship tips, Book attorney, Book Contract, Book contracts, Book Lawyer, Books attorney, Business, contract law, Copyright Information, Copyright infringement, Copyright Infringment, Copyright law, Copyright Ownership, copyright rights, Copyrights, How to protect a copyright, intellectual property copyright, Intellectual Property Information | No Comments »
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Posted By Francine on September 26, 2011

Do you need Estate Planning?

Estate tax law has changed over the last year, and you might want to know what is going on.

For example, any asset transferred to your US citizen spouse, or a charitable organization, is not subject to estate tax.  However, this year [2011] and in 2012, any asset that you pass to anyone other than your spouse or charity will be taxed if the net value of those assets exceeds $5-million dollars or $10-million for a married couple.

Is Estate Planning something you should start thinking about?  

Yes. It’s never too soon to start planning for your and your family’s, future.  When you take the time to create an Estate Plan, you put yourself in the driver’s seat.   Otherwise, you leave the planning of what happens to you after you die (or if you become incapacitated) to the government or some other third party.

Through careful and early Estate Planning you get to decide:

1. How your assets will be distributed after your death;
2. Who will manage your assets after you are gone;
3. When and under what circumstances your assets will be distributed;
4. How and by whom your personal care will be attended to;
5. Who will make your health care decisions in the event you are unable to do so.

Many people think that estate planning only involves making a will.  While creating a will is an important part of the estate planning process, it is only one aspect of it.

Periodically I’ll share useful information answering questions, such as what is a revocable living trust, what is probate, what goes into a will, how do you choose an executor, and many more.

Until next time, I’m attorney Francine Ward, providing you with legal information you can use.

Category: Estate Plan, Estate Planning, Probate, Trusts, Wills | No Comments »
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