Posted By Francine on May 7, 2012

One of the best ways to protect your valuable trademark is to monitor its use in the marketplace, especially if you’ve issued a license to someone to use that mark.  It is your responsibility to protect it, and the USPTO, as do most courts, expect you to do so—or risk losing it.

One of the easiest ways to lose your trademark is to NOT pay attention to how your licensees use it.  First, you want to make sure they know how to use your valuable trademark, and then, you want to hold them accountable for doing what they agreed to do.  Not putting into place effective quality control mechanisms, in legal parlance, is called issuing a “naked license”. For licensing agreements to be enforceable, the specific legal language can get tricky. That’s why, having a competent trademark/contracts attorney, who knows exactly what to say and how to say it, comes in handy.

Several courts have spoken on this topic essentially saying, “if you enter into a licensing relationship, whereby you permit someone to use your trademark, and you do not include quality control mechanisms, you will lose your trademark rights.”

So what does this mean for trademark owners who license their marks?

1. Include a quality control provision in your licensing agreement.
   Make sure you include an express contractual right to inspect and supervise your trademark(s). In reviewing a number of court decisions, overall the courts have upheld contracts which include certain language, and rejected others. Make sure you include the language that will protect you and your trademark rights.
2. Monitor & Supervise your Trademarks. It’s one thing to include in your contract that you have the right to monitor and supervise the licensee’s use of your trademark, it’s another to actually follow up. And yes, it will cost you some money, but it will cost you more if you lose your rights, and have to pay a lawyer to help you get them back. Follow-up.

That’s it for now. Feel free to join the conversation on my Facebook Fan Page, in one of my LinkedIn discussion groups, or on Twitter.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours!

Category: Affiliate Marketer, Affiliate Programs, asset protection, Business, contract law, Contracts, Intellectual Property, Intellectual Property Information, Intellectual Property Protection, license agreement, license agreements, licensing agreement, licensing agreements, Trademark, Trademark Copyright Attorney, Trademark Law, Trademark owner, trademark protection, Trademarks | No Comments »
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Posted By Francine on April 26, 2012

Reading Between the Lines of Terms of Use.
This week we’ll continue our discussion of Terms of Use / Terms of Service.  This blog post is the 2^nd in a series of 4 posts, which focuses on what rights you [potentially] give up when you click ACCEPT.  Below we will examine selected portions from Facebook Terms, Twitter Terms of Service, and LinkedIn’s TOU.

Terms of Use. Terms of Service.

Facebook Terms of Use
tell you that you retain the rights to your content AND they state in tiny print that you give Facebook the right to do almost anything they want with it, including give others the right to do the same (sublicense). Check this out:

“… Sharing Your Content and Information.
You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:

1. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.” ***
2. When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).”

Twitter’s Terms of Use
provide the same language as Facebook, and goes a step further by specifically saying that you [potentially] grant Twitter the right to create derivative works of your content. See below:

“You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed)….” ***

“… Such additional uses by Twitter,  or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media….”

LinkedIn’s Terms Use
are the most surprising and blatant, in that, LinkedIn clearly states that you give up all rights (assign) to any content you contribute to LinkedIn.

“Contributions to LinkedIn.

By submitting ideas, suggestions, documents, and/or proposals … you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) LinkedIn is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) LinkedIn shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; … (e) you irrevocably assign to LinkedIn all rights to your Contributions; and (f) you are not entitled to any compensation or reimbursement of any kind from LinkedIn under any circumstances. …”

In many jurisdictions, while the law is still unsettled, when it comes to Terms of Use, it is crucial that you (the creator of content on social media sites)  understand what you agree to BEFORE you accept the Terms.

Okay, that’s it for this now.  Next time we’ll take a look at a recent case and see how one particular court has ruled on this issue. Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join the conversation on my Facebook Fan Page; also check out a short video on this topic on my website.

Category: Blog Law, Business Law, contract law, Contracts, Copyright protection, Facebook, Francine D. Ward, Francine Ward, Intellectual Property, Intellectual Property Information, Intellectual Property Protection, Internet law, Social media, Social media law, Terms of Service, Terms of Use, The Internet rules., Uncategorized, User Agreement | No Comments »
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Posted By Francine on April 19, 2012

Everyday in the news we read or hear about privacy on the Internet.  On any given day, someone files a lawsuit against Facebook, YouTube, Google, LinkedIn, Second Life, Pinterest, or some other social networking site.  And almost always, the lawsuit is in some way connected to the interpretation of, enforcement of, and/or coverage of the site’s Terms of Use.  Everyone talks about Terms of Use (sometimes called Terms of Service), but few know what they are or understand their importance.

This blog post is the first in a series of 4, which focuses on Terms of Use (TOU).  Here we will identify some important things you should know about them:

Terms of Use

1. Terms of Use do not exist to protect your rights – Contrary to popular belief, TOU are not there for your benefit. Whether on a website, a blog, or a social networking venue site, TOU are not designed to protect you and your rights. They are there purely for the benefit of the website owner or Internet service provider.
2. User gives away a lot. When you click on “accept” you give away many personal rights.  You should at least read the TOU, so you are aware what rights you are relinquishing or affirmatively giving away.
3. TOU should be read & understood.  Sometimes because of government pressure, customer insurgence, or just a change in heart, social networking sites modify their TOU.  While the law may require that they notify you of such changes, it’s up to you to read the notices when you receive them.  Reading the TOU keeps you aware of the changes that impact you and your rights.
4. Courts uphold TOU – More and more courts are upholding TOU, much to the surprise of many Facebook, Twitter, and other social networking users.  So long as the TOU adhere to a number of requirements set forth by the court, the website owner gets a free pass. With that in mind, it’s up to you to protect yourself and your pocketbook.
5. They create a binding & enforceable contract. Many of the sites never expressly state that when you accept TOU you enter into a contractual relationship. There are a few, however, such as Twitter and LinkedIn, which come right out and tell you by accepting their terms, you enter into a binding Agreement, and when  you “ACCEPT”, you agree to be bound. Here is an example of language from Twitter’s TOU:

It’s a Binding & Enforceable Contract

“…  Your access to and use of [Twitter’s] Services is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms….”  “You may use the Services only if you can form a binding contract with Twitter and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. …”

Okay that’s it for today.  Our world is quickly changing, but contract law is still contract law. And as long as you adhere to the simple rules, you’ll not get into trouble.

Next time we’ll examine select social media TOU provisions, and discover how reading between the lines can keep you out of trouble.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join the conversation on my Facebook Fan Page; also check out a short video on this topic on my website.

Category: Blog Law, Brand owner, Business, Business Law, company policy, content protection, contract law, Facebook, Facebook lawsuit, Francine D. Ward, Francine Ward, how to protect content, Intellectual Property Information, Internet law, internet policy, Terms of Service, Terms of Use, Terms of Use. Terms of Service. | No Comments »
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Posted By Francine on March 14, 2012

In an international case that may prove to be pivotal in the area of intellectual property, the Dutch Supreme Court recently held that virtual property

Virtual Theft and Dutch Supreme Court

is property that can be protected, and theft of such property is punishable by law.

In brief, the facts of the case are as follows:

In September of 2007, two kids around the age of 15 forced another teen, the victim, to turn over the passwords to his Runescape (a virtual community) account.  Under the threat of violence, they forced him to take money and virtual goods from his account and transfer that property to their account.  In particular an amulet and a mask were stolen.

The teen victim reported the theft to the police, who arrested the teen predators.  A lower Dutch court in 2009 found them guilty of theft. The defendants appealed the ruling, which made it all the way to the Dutch Supreme Court. The primary question before the court was whether virtual property (intangible goods) is deemed property in the eyes of the law, and therefore can be the subject of a theft.

Well the Dutch Supreme Court said “YES”.

How might that court’s decision impact the way other courts view this issue?  In particular, how might such a ruling affect a US court addressing the theft of virtual property in, let’s say, the Second Life?

Here is a link to Google translation of the Dutch ruling

What are your thoughts?

Join the conversation and share your thoughts, whether you are  a lawyer potentially representing virtual property owners, a lawyer representing virtual property thieves, virtual world participants, or just someone with an opinion. Facebook Fan Page.

Category: Dutch Supreme Court Ruling on Virtual Property, Internet law, internet policy, Kids virtual worlds, Legal, Supreme Court, Terms of Use, Virtual Property, Virtual Property Protection | No Comments »
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Posted By Francine on February 29, 2012

The headline reads, “Wife bans husband from bar!”

As I started to read this article, I could not believe my eyes.  The story was about a wife trying to prevent her husband from patronizing a bar. I thought, is it possible to stop him? Can she do it? Why would she want to? Will he abide by her ruling?

Topless Barmaids and Men in Need of Excitement.

Practically Nude Bar Owner Attracts Business -- Duh!

Then as I continued to read, my attention went to the essence of the article—almost naked hostess serving drinks to men in desperate need of libation and excitement.  The wife banned her husband from an establishment, where the owner/bartender was a scantily dressed, 34-year old, attractive, and very busty female. I thought, how could a wife ban her husband from doing anything, let alone going to a bar and/or looking at women.

Plus, scantily clad cocktail waitresses is not a new concept. From the days of the Roman empire to the Playboy Club to the old Gaslight Clubs to Hooters, naked women serving men is (and always will be) a BIG hit.  And don’t forget how sex sells in every other venue as well, from TV Ads for cars & mechanics tools  to Victoria Secret to what is served up on every prime-time television show and to ALL of Beyonce’s music videos, naked women serving customers attracts attention, and is here to stay. Like it or not!

Is it a problem, is it illegal, is it unethical, or is it smart entrepreneurial thinking?

Is that legal, I asked myself, that a wife can stop her husband from going to a nude bar? Is it legal that the proprietor can dress anyway she wants in an effort to attract clients? Is this immoral? Is it our business what she does? Should it be?

Then I put on my entrepreneur hat for a moment and thought to myself, what a brilliant idea this young woman had.  In a bad economy—for her to take such a bold and adventurous step in an effort to attract clients to her bar—some would see it as a smart business judgment decision.

What do you think?

What do you think, are there legal issues on either side? Are there ethical or moral issues? Do they matter in the legal realm? What are the business issues that come to mind?

Feel free to join the conversation and discuss any, or all of these questions.

Until next time, I’m attorney Francine Ward addressing the tough questions and stirring up the pot.

Join the conversation on my Facebook Fan Page, My Twitter page, Website, or LinkedIn groups.

Category: Beyonce, Business, Hooters, legal and ethical issues, Topless barmaids | No Comments »
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Posted By Francine on February 7, 2012

Copyright Registration.

How to Copyright a Website

Do you have a fabulous website that YOU created, with YOUR original content? Have you thought about protecting that website and its component parts?  If you’ve not given much thought to the protection of your website, now is the time to change your thinking.

Your website, like your blog posts, books, articles, videos, screenplays, music, marketing materials other valuable content, in some cases can be protected by copyright.

Copyright for Website.

While the Copyright Office does not register websites, per se, it does allow you to register the copyrightable content that is on your website.  For example, did you know that you can register the source code, the audio visual material (e.g., videos), text, and any visual content (e.g., cartoons, photos)? Don’t wait until someone has copied your website to take action. Register it with the US Copyright Office now.

In order to obtain a copyright registration for your website, here are some things to keep in mind:

1. Your website content MUST be original,
2. You (not your web designer) must own the content,
3. If you handle the registration yourself, make sure you do it right or you won’t have a valid registration,
4. Read Copyright Office Circular 66 carefully
5. Make sure you use the correct form,
6. Remember, update your registration whenever you make significant revisions to your website

Until next time, I’m Attorney Francine Ward helping you protect what’s yours.  Please join the conversation on my Facebook Fan Page and in one of my LinkedIn Groups, and read more about copyright registrations on my website.

Category: Copyright Information, Copyright law, Copyright protection, copyright rights, Copyright Rules, Copyrights, How to copyright, How to protect a copyright, how to protect content, Intellectual Property, intellectual property copyright, Intellectual Property Information, Intellectual Property Protection, Website law | No Comments »
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Posted By Francine on February 4, 2012

• 

  License Agreements

  Are you an entrepreneur, who creates content, e.g., books, seminars, special reports, articles?

• Do you see your content as a valuable asset?
• Do you have clients who would love to use your content?
• Are you willing to let them for a price?
• Have you considered licensing your content?

Licensing your valuable content to others is a great way to expand your network, get your powerful message out to the broader world, and generate passive income. And if done correctly, you will also create a method, by which, to protect your content.  But before you draft a licensing agreement, think carefully about some of the important provisions you should include.

Here are just a few of the many factors to take into account, when preparing a valid and enforceable licensing agreement:

1. Make sure what you want is a license and not an assignment
2. Make sure it is something that can be licensed
3. Make sure you clearly understand the territorial limits e.g., how broad, narrow, global, states?
4. What is the scope or field of use of the license? 
5. Is it exclusive or non-exclusive?
6. Which boilerplates (that are not so boilerplate) should you include?
7. And many more…

So before you use that licensing agreement template that someone gave you, make sure you know what it says, and that it says what you need it to say.  Moreover, if you don’t know what you are doing, you may consider hiring a competent attorney to do it for you.

Until next time, I’m Attorney Francine Ward helping you protect your business, your brand, your content, and your estate.  Join my conversation on my website, my Facebook Fan Page, and in any of my LinkedIn Groups.

Category: asset protection, Brand owner, Business, Business Law, content protection, contract law, Contracts, Copyright Information, Copyright protection, copyright rights, How to protect a copyright, Intellectual Property, license agreement, license agreements, licensing agreement, licensing agreements, Uncategorized, Valid contract | No Comments »
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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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