Accepting Guest Blog Posts

I have accepted a position that will not allow me to write in 2016. However, I want to continue to provide information on cyber, intellectual property (IP), social media, security, privacy, and technology law and policy to you all.  So…. I am accepting  submissions from guest bloggers!

Please send me your best cyber, IP and tech law and policy posts. Many of this blog’s followers are entrepreneurs, technophiles, tech novices, bloggers, social media user and those intrigued by tech, so please cater your posts to that audience. Please send posts to thedigitalcounselor@gmail.com. I will notify you if your post is selected.

Thank you for your submission, in advance, and more importantly, THANK YOU FOR READING!

I hope the readers find previous posts and any information others are able to provide in my absence helpful! And I look forward to returning in 2017!!

Quick Tip: Sign A Pre-Nup With Your Business Partner

Co-founder disputes are common in the business world, whether in television production, restaurants, real estate,or tech start-ups. With the staggering amount of money that can be at stake in today’s tech companies, founders should exercise caution. The best of friends and the most cohesive of partnerships can end in a bitter legal battle unexpectedly. A recent Los Angeles Times article, titled “Co-founder feuds at L.A .tech start-ups show how handshake deals can blow up,” recounts several telling tales of business start-up angst. The article analyzes recent tech-based businesses that began with a handshake and ended with relationship-ending conflict.

Entrepreneurs should consider entering into a prenuptial (“prenup”) agreement to avoid such a dispute. A prenup establishes the property and financial rights of each spouse in the event of a divorce. Figuring out how to divide property and assets should a company or partnership dissolve may be a smart way to start a business. Consult counsel and think through all the potential issues.

Quick Tip: Trademark Protection In Cuba

Cuba is now an open market for US businesses. President Obama announced in December 2014 that US is taking steps towards increased travel and improved relations with Cuba. This will mean a new frontier for many businesses as commerce restrictions are lifted.

One exception to the long-standing US embargo on trade with Cuba permits US companies to file for and obtain trademark registrations in Cuba. Many companies did not consider obtaining a Cuban trademark a high priority but it is now something to consider. Cuba is a “first to file” jurisdiction – in other words, a Cuban registration for a trademark will be awarded to the first applicant, even if that applicant has no legitimate claim to the mark. An applicant does not have to use the mark in Cuba, or even plan to expand its business into that country, before filing an application for trademark registration. Proactively seeking a Cuban trademark registration now will help ensure that the mark is available when the embargo with Cuba is lifted.

There are two ways to apply for a Cuban trademark registration: (1) if a US company owns a current US trademark registration, a Cuban application can be based on the US registration and filed through the international Madrid Protocol treaty; or (2) a national Cuban trademark application can be filed through local trademark agents with the Oficina Cubana de la Propiedad Industrial (OCPI), the Cuban equivalent of the US Patent and Trademark Office. Seek advice of counsel as you expand your trademark portfolio.

Being proactive about foreign registrations is an important part of a strong intellectual property portfolio.

Quick Tip: Don’t Make False DMCA Claims

Automattic Inc. v. Steiner, 2014 U.S. Dist. LEXIS 182295 (N.D. Cal. Oct. 6, 2014) is the first time a party which received a DMCA takedown notice with material misrepresentations has been awarded money damages.

What is DMCA?

DMCA is the Digital Millennium Copyright Act, limits the liability of the providers of online services for copyright infringement by their users but created a mechanism for those whose copyrighted works have been infringed to file a complaint to have the content removed. If they do not take appropriate action they may find themselves liable.   It is easy to file a DMCA claim and every site providing online services must have a DMCA policy to remove content that infringes the copyrights of individuals. Many sites like Facebook, Twitter, & WordPress even have forms that you can fill out to stream line the process and make sure you’re providing the information required under the law.

What happened in the case?

Automattic, the owner of WordPress.com and a major developer of the WordPress software, and blogger Oliver Hotham, Plaintiffs, sued the Defendant, Straight Pride UK, for using the notice-and-takedown provision of the Digital Millennium Copyright Act (“DMCA”) to stifle criticism. Automattic alleged that the Defendant abused the provision and are seeking damages under 17 U.S.C. § 512(f) for misrepresentation. The Court agreed.

“[T]he Court finds that Defendant knowingly misrepresented that Hotham violated his copyright because Defendant could not have reasonably believed that the Press Release he sent to Hotham was protected under copyright. Moreover, there can be no dispute that Defendant knew, and indeed, specifically intended, that the takedown notice would result in the disabling of Hotham’s article[,]” Magistrate judge Joseph Spero wrote in the opinion.

Although the court awarded damages for the costs of the suit and for “lost work and time” spent responding to a fraudulent takedown notice for copyright infringement. The Northern District denied monetary relief for Plaintiffs’ alleged reputational harm, Hotham’s alleged emotional distress, and Hotham’s alleged chilled speech.

What does that mean?

Do not file DMCA claims lightly and be prepared for a fight. People do not often fight these cases so vigorously but is does happen. Make sure you have a valid claim for copyright infringement. Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, Web sites, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. Unauthorized reproductions, derivatives and distribution are illegal unless they fall under the fair use exemption. Have a good understanding of your rights and theirs before filing.

Hotham’s original blog post is now available on several other WordPress-hosted sites, including here and here.  And his account of the tale is here.

Cartier Offers Amazing Opportunity to Women Entrepreneurs!

I had the pleasure of attending Cartier’s Women Entrepreneurs: The Changing Face of Innovation at the French Embassy.  We had the pleasure of hearing past participants speak about their experience in The Cartier Women’s Initiative and their successful businesses. The connections, financing, and networking were invaluable for these budding entrepreneurs and if you have a for-profit business that is 1-3 years old I encourage you to learn more and apply.

The Cartier Women’s Initiative Awards are an international business plan competition created in 2006 by Cartier, the Women’s Forum, McKinsey & Company and INSEAD business school to identify, support and encourage projects by women entrepreneurs.

The mission of the Cartier Women’s Initiative Awards is threefold:
  • To identify and support initial-phase women entrepreneurs through funding
    and coaching
  • To foster the spirit of enterprise by celebrating role models in entrepreneurship
  • To create an international network of women entrepreneurs and encourage
    peer networking

The Cartier Women’s Initiative Awards aim to encourage the most vulnerable category of entrepreneurs in their most vulnerable phase: women entrepreneurs starting up. Since their inception in 2006, they have accompanied over 140 promising female business-owners and recognized 44 Laureates.

Cartier is currently accepting applications!!!

The annual competition involves two rounds:

Round 1 (in June): The Jury selects 18 Finalists*, the top three projects of each region (Latin America, North America, Europe, Sub-Saharan Africa, Middle East & North Africa, Asia-Pacific), on the basis of their short business plans. They receive coaching from experienced businesspeople to move to the next round.

Round 2 (in October): The Finalists are invited to France for the final round of competition which includes submitting a detailed business plan and presenting their projects in front of the Jury. They are also invited to the Annual Global Meeting of the Women’s Forum.

Based on the quality of the plan and the persuasiveness of the verbal presentation, one Laureate for each of the six regions is selected and receives a unique and comprehensive support package: US $ 20 000 of funding, one year of coaching, networking opportunities and media exposure.

Click here for information on how to apply: http://www.cartierwomensinitiative.com/how-to-apply

Quick Tip: Fast Track Your Community Trade Mark Application

The Office for Harmonization in the Internal Market (OHIM), the European Union trade mark office, has announced the introduction of a new accelerated procedure for handling Community Trade Mark (CTM) applications.  ‘Fast Track’ guarantees that the early stages of the Community Trade Mark (CTM)  application process will be dealt with quickly by providing for the expedited examination and publication of applications (in just half the time of regular applications, according to OHIM).

Fast Track is free of charge.  An application will be automatically allocated to the track provided it meets certain conditions listed on OHIM’s website. Fast Track came into operation on November 24, 2014. Overall, it is good news for trade mark applicants who could benefit from obtaining EU-wide trade mark protection more quickly.  Fast Track is, however, unlikely to make a difference in the case of more complex, opposed applications.

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What is a Community Trade Mark?

The Community Trade Mark (CTM) system offers trademark owners a unified system of protection throughout the European Union (EU) with the filing of a single application. If successful, this one application results in a CTM registration that is recognized in all countries of the EU. The countries covered by a CTM registration are Austria, Benelux (Belgium, the Netherlands and Luxembourg), Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

Quick Tip: Consider Foreign Trademark Rights Early

  1. U.S. trademark owners should conduct trademark searches both domestic and international markets that are of potential significance, even if the foreign search is merely a “knock-out” search for identical marks; and
  2. U.S. trademark owners should develop and implement strategies for global trademark protection sooner, rather than later.

International searching and registration are costly and often forgotten when small businesses develop and intellectual property strategy. Being proactive and paying for this search early can prevent the cost to either defend an infringement suit or change branding in an entire geographic region.  With some forethought it is possible to spread the costs of searching and registration over several months or years.  Do not underestimate the growth potential of your brand.

 

Two recent cases illustrate the importance of this kind of forethought:

The Glee Case and the Pintrest Case.