Zombie Cinderella ‘Survives’ Walt Disney’s Cinderella Trademark- No Likelihood of Confusion

United Trademark Holdings, Inc. (“Applicant”) appealed a decision by the U.S. Patent & Trademark Office refusing registration of its “ZOMBIE CINDERELLA” trademark for dolls when the USPTO held that it was confusingly similar to the registered “WALT DISNEY’S CINDERELLA” trademark.

In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods at issue. Applicant demonstrated that the story of “Cinderella,” is a “well-known narrative … involving a beautiful young lady, her antagonistic stepsisters, a fairy godmother, a ball, a prince, and a pair of glass slippers, existing since at least as early as 1697.”

The USPTO cited to nine other doll lines that use the name “Cinderella” holding that: 1) the mark is weak, and 2) CINDERELLA is not the dominant component of the cited, registered mark. The court found that while the dominant part of the mark -the term CINDERELLA – was similar, use of the terms “Walt Disney” and “Zombie” differentiated the two. The USPTO also found that “the design element of “WALT DISNEY’S CINDERELLA” may function, for juvenile customers, as a stronger source indicator than the term CINDERELLA, because it depicts a specific version of Cinderella that is associated with the Walt Disney animated film” of the same name.

Lastly, although the word “zombie” has little significance or distinctiveness as a source indicator in the marketplace for toys, the combination of ZOMBIE with CINDERELLA creates a unitary mark with an incongruous impression.

Twitter Sues The Government Over Data-Request Disclosures

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Originally posted on TechCrunch:

Twitter wants you to know that it is serious about data request transparency, and that is a darn fine good thing.

The social company is suing the government for the right to share, in more granular detail, the requests for user data that state makes. The United States government would like such data to be opaque. Twitter, the opposite.

Both sides’ views are unsurprising. The government wants to keep terrorists in the dark. And Twitter wants to keep its users informed, so that they know that their information, at least through these specific channels, isn’t being absorbed wholesale. This argument is component to the larger debate the nation is currently having about how government surveillance impacts the privacy of the individual, and the nation as a whole.

What does Twitter want? From its post:

It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns…

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GEAR UP FOR FALL! Now Is A Good Time To Take A Look At Those Contracts

Contracts

One of the most important tools to protect your business – your ideas, customer relationships and talent pool – is your written contract. A solid contract is the foundation for a reliable relationship for you, your customers and your employees. More importantly, it helps to prevent misunderstandings and false expectations that can lead to a breakdown in your customer relationship, jeopardize the project and result in litigation.

Many companies start with a model or “form” contract adapted from forms available online or drafted when the business first started. As businesses develop over time, you may have revised your contracts, adding a little here, removing a little there. Maybe you read an article about an important case in your industry and decided to add some text from the contract discussed in the court’s legal opinion. In many cases, over time, the agreements become “Franken-contracts” an odd amalgamation of trade lingo, inconsistent terms and even contradictory conditions. At best these are ambiguous and confusing to read. At worst, they become unenforceable.

At some point, you should review, revise and generally “tighten” existing contracts. You should have your lawyer review them to make sure that there are no mistakes, ambiguities or omissions that could cost you or your customers. I urge clients to have their contract forms reviewed on an annual basis. Depending on changes in the law, changes in the industry or changes in your own business, this process should only take a few hours.

The following are six things to consider as you review your existing contract forms and business practices.

First, are you using a written contract? Simply having a written agreement in place will help prevent the often difficult, time-consuming and expensive dispute that comes down to a “he said / she said” situation.

Second, make sure that the key terms of your contract are consistent and understandable. Pricing and payment terms, clear descriptions of the services to be performed or the goods to be delivered, as well as due dates and acceptance criteria will go a long way toward preventing breach of contract claims. More importantly, ambiguous and internally-contradictory terms may expose you to fraud claims or claims under an unfair business practices act. These types of claims are typically much more difficult and more expensive to defend against.

Third, create a mechanism for changes in your contract. Circumstances change. When they do, make sure that you document them and that your customer initials and dates any additions or changes to the contract after it is signed.

Fourth, don’t overlook intellectual property (“IP”) rights, Many business relationships involve collaborative sharing or development of knowledge, skills and protectable IP assets such as copyrights, trademarks, patents and trade secrets. Intangible assets are often the most important drivers of revenue creation and value. Overlooking creation, ownership and control of IP rights may result in the loss of these assets.

Fifth, ensure that your contracts are up-to-date with respect to local laws and industry regulations. Recent developments in technology, e.g., BYOD, Social Media, Mobile commerce, and online privacy had produced a raft of state, federal and industry specific laws, rules and regulations. Do you regularly update your forms to make sure they comply with changes to local laws?

Sixth, understand your “escape” options. Not every relationship is meant to last forever. Your contracts should have clear and concise terms for ending the relationship such as failure to perform, failure to pay or adverse business conditions.

To find out more about how the Adler Law Group can help you tighten your contracts, or even draft new ones, contact us for a free, no-obligation consultation.

Privacy & Data Security Under Delaware Law

Contractual Obligations to Destroy Consumer Information

Consumers and business are expressing increasing concerns over data privacy and security risks. Increasing frequency of data breach headlines show these concerns are not trivial. Recent breaches involving Target and Neiman-Marcus, for example, are just the latest high profile incidents that underscore the need to know that financial transactions are secure. When there is a Target- or Neiman-Marcus-sized breach involving personally identifiable information (PII) resulting in PII landing in the hands of unscrupulous third-parties, there are significant consequences: our own information can be used against us (identity theft) and also to harm retailers and credit card companies. Financial and transactional security and cyber-privacy concern everyone.

Many businesses find themselves covered by a patchwork of state and federal laws governing consumer protection, privacy and data security. A client recently asked us to research the new Delaware law on data destruction (DE Code §50C-101). Specifically at issue was the definition of “consumer” under the Act.

A company in the financial services industry may have several different subsidiaries incorporated in Delaware. Most of them are likely covered by the Graham Leach Bliley Act (“GLBA”) exception for regulated financial institutions with respect to the obligation to protect a consumer’s information. However, a subsidiary may function as a service provider to regulated and unregulated businesses providing administration, accounting and other services and may not regulated. This entity will probably have contractual agreements with these other businesses entities but probably not with the end “consumer.” As such, the service provider may still have an obligation to protect consumer information via these contracts.

When drafting such contracts, the question arises regarding the scope of the information to be protected since the GLBA defines consumer differently than the Delaware Act. GLBA mentions “financial products or services” where Delaware talks about “entering into a transaction.”

Delaware statute: “A commercial entity shall take all reasonable steps to destroy or arrange for the destruction of a consumer’s personal identifying information within its custody and control that is no longer to be retained by the commercial entity by shredding, erasing, or otherwise destroying or modifying the personal identifying information in those records to make it entirely unreadable or indecipherable through any means …”

Delaware Definition of Consumer: “an individual who enters into a transaction primarily for personal, family, or household purposes.”

GLBA Definition of Consumer: “an individual who obtains, from a financial institution, financial products or services which are to be used primarily for personal, family, or household purposes.”

The Delaware definition of consumer appears to require a service provider to destroy the “consumer” information irrespective of any contractual agreement. This would appear to place responsibility for data destruction with the service provider rather than the entities it serves, e.g. those that have the true relationship with the consumers according to GLBA.

The Delaware definition of consumer is fairly standard and is used by most states in their “Unfair Trade  Practices and Consumer Protection” type laws.  The definition can be reasonably understood as intended to exclude businesses from the protection of such laws.  It appears that a “Consumer” under Delaware law is a broader and more inclusive than under the GLBA.  Since state courts may have more expansive powers to protect a consumer under state law than the would be permitted under the GLBA (a law primarily intended to regulate financial institutions) and since the Delaware Act is consumer protection statute, it is wise to presume that Delaware courts would interpret and apply the alw as expansively as possible to protect consumers.

From a contractual relationship standpoint, it is incumbent on service providers to clearly address these issues in their contract and balance compliance risks and burdens among the parties best situated to ensure compliance.

NOTE: THIS IS NOT LEGAL ADVICE. If you have questions regarding application and interpretation of any laws, rules or regulations, you should consult a qualified attorney regarding your specific situation.

You may contact the Adler Law Group to schedule a free consultation by calling (866) 734-2568.

Landscape Mobile Launches Sight, Raises Seed Round To Visually Archive Articles

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Originally posted on TechCrunch:

The good folks at the new Beijing and San Francisco-based startup Landscape Mobile have launched Sight today, an app that makes it easier to organize articles on mobile devices.

Copying and pasting on mobile devices is a huge pain in the caboose, and Sight solves that problem by allowing users to take a screen shot of whatever they’re reading through the Sight app (available on iOS and Android), which then scours the web for the story and saves it to the app’s own clipboard.

The technology and talent behind Sight was persuasive enough for IDG Capital to sign on for a $1.85 million seed round.

“An image is the new URL on the mobile web,” says Landscape Mobile’s co-founder and chief executive Yue Zhuge. Yue, a former executive at Yahoo and Microsoft in Beijing and Silicon Valley, has a lot of experience with mobile advertising.

“Because of mobile devices, the…

View original 131 more words

AEREO LOSES COPYRIGHT CASE

Technology Continues to Test The Bounds of Copyright Law

The Internet is an unprecedented source of disruption. From retail services (e.g. Amazon) to media and entertainment, almost every industry has been forced to rethink its business model due to the accessibility, ubiquity and democratizing force of the Internet. Aereo was positioned to disrupt the traditional media distribution model by giving consumers greater control over what were otherwise “free” over-the-air transmissions.

The Aereo service was premised on the idea that consumers should be able to watch and record over-the-air broadcast television programming via the Internet. Major broadcast networks that owned the content made accessible through Aereo challenged the model on the grounds that Aereo was violating the exclusive “public performance” right guaranteed by the Copyright Act.

Copyright law provides copyright owners six exclusive rights. One of those rights is the exclusive right to publicly perform the copyrighted work. Because this right is a statutory construct, one must look to the statute to determine its meaning. To “perform” and to perform “publicly” means “to transmit or otherwise communicate a performance or display the work to a place … or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

While many reacted by asking whether the case would stifle innovation and have a chilling effect on start-ups, this case does highlight the increasing tension between technological advances and copyright law.

From a practical standpoint, one need not be alarmed about the impact of the decision on most types of innovation. For one thing, the Court went to some lengths to craft a reasonably narrow decision, which applies only to broadcast TV retransmitted over the Internet.

As with any type of innovation, there are different types of risk. On the one hand, there is technology risk: the risk that whatever technology is necessary for some business plan simply won’t work. On the other hand, there is legal risk, highlighted by the Aereo decision: the risk that the entrepreneur’s interpretation of some act or case law won’t ultimately prevail. That’s what happened to Aereo.

As an IP lawyer, I am somewhat perplexed. It is hard for me to understand why Aereo made such a bold move. However, at least the district court agreed with Aereo’s interpretation.

Oklahoma, Louisiana, join growing list of States with Social Media Laws

Oklahoma and Louisiana join Wisconsin and Tennessee in recent laws restricting access to applicants’ and employees’ personal online content by prospective and current employers. Adoption of Social Media platforms continues to grow as do new legal and business risks arise as well as state legislatures provide new rules, regulations and guidance. As state by state compliance requirements develop, businesses need to review frequently overlooked elements of key social media guidance, such as how to approach specific areas like Monitoring, Content Approval, Training and Information Security.

This latest round of bandwagon-jumping follows efforts by most other states that have addressed the issue. The key take-away is that business need to take a state-by-state approach to social media legal compliance.

Generally, most of these types of laws prohibit employers from requesting or requiring that applicants or employees disclose a username, password, or other means of authentication for their online accounts.

Employers should be on the lookout for laws that address whether an applicant or employee must accept a “friend” request, change privacy settings to permit access by the employer, or otherwise divulge personal online content.

Another area of concern is the definition of “personal,” “social media” and “account. ” these definitions vary and often cover far more than common notions of social media.

Some laws apply to any online account, including e-mail, instant messaging and media-sharing accounts. Some laws address the scope of use such as “exclusively for personal communications” as opposed to “business purposes of the employer” or “business-related communications.” This carve-out further narrows the scope of the Oklahoma and Louisiana laws.

While these laws generally prohibit adverse actions based based on a refusal to provide user name, password or other authentication information, each law should be scrutinized for broader prohibitions, such as those against penalizing or threatening to penalize an employee or applicant for refusing such requests.

Technology continues to evolve and so does the legal and regulatory environment. Businesses need to continually assess and address the risks created by new laws and new uses of tech in the workplace.

Contact us for a free consultation to learn what we can do to help your business navigate the ever-changing regulatory minefield. What you don’t know can hurt you. We are here to help you avoid getting hurt.