Five Best Ways to Protect Your Ideas

Idea

When I first meet a client, I am often asked “How can I protect my ideas?” While it may seem like a simple question, getting the answer right is often tricky. That’s because one can’t actually own an idea, in and of itself. Sounds confusing, I know. The five best ways to protect your ideas are 1) Identify, 2) Organize, 3) Register (or restrict), 4) Monitor, and 5) Enforce. This articles focuses on how to identify the best ways to protect your ideas.

Regardless of industry, Ideas are the keys to any successful business. While one cannot “own” an idea, one can protect one’s Intellectual Property rights that relate to the embodiment or manifestation of that idea. For example, Copyright, Patent, Trademark, Trade Secret and Publicity Rights are all forms of Intellectual Property rights that grant exclusive rights to the owner, both artistic and commercial.

Copyright protects works of creative artistic expression such as books, movies, audio-visual music, paintings, photographs, and importantly, software. Copyright protection requires that a work be “fixed” in tangible format (this includes electronic format) and gives the owner (called the “author”) of such works the exclusive rights to reproduce, distribute, publicly display, publicly perform, and modify a work for a certain period of time.

Patents (utility and design), Trademarks and Trade Secrets protect creative commercial expression sometimes known as “industrial properties,” as they are typically created and used for industrial or commercial purposes.

A Patent protects the invention or discovery of “any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.” A Patent gives the inventor “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States for a period of time.

A Trademark is any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from others, and to indicate the source of the goods. In short, a trademark is a brand name or logo that is a distinctive sign which is used to prevent confusion among products in the marketplace. A Trademark enjoys protection indefinitely, as long as it is being used.

An industrial design right protects the form of appearance, style or design of an industrial object from infringement.

A Trade Secret is an item of non-public information concerning the commercial practices or proprietary knowledge of a business. Public disclosure of trade secrets may sometimes be illegal. A Trade secret enjoys protection indefinitely, as long as it is being kept secret.

Some rights are “statutory” in that they exist because they are granted by the Constitution of the United States, e.g. Copyright and Patent. Other rights arise from “use,” e.g. Trademark and Trade Secret rights. Some arise under State law, e.g., Rights of Publicity. Not all types of intellectual property require registration in order to obtain, maintain or enforce one’s rights. However, registration is HIGHLY RECOMMENDED if available, is required in certain circumstances and, even when not required, registration often confers several benefits that enable enforcement, reduce the risk and costs of enforcement, and provide additional incentives and remedies for enforcement.

The term “Intellectual Property” denotes the specific legal rights described above, and not the intellectual work, concept or idea itself. Oftentimes, the largest value of a businesses can be traced to its intangible assets. Knowing how to identify intangible assets and understanding which Intellectual Property rights apply to these assets is critical to the ability to protect and commercialize one’s ideas. Therefore, great care should be given to maintaining and enhancing their power and value. Value can be increased through a carefully planned and executed strategy. Innovative companies that successfully leverage their Intellectual Property rights will stand to benefit most from the opportunities presented by the current economic marketplace and demand for innovation.

 

Focus | Vision | Perspective | Passion

Executives face a confusing and dynamic set of challenges ensuring their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex legal & regulatory environment.

Adler Law Group was created to provide clients with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.

For a FREE, no-obligation 1 hour consultation to learn the best ways to identify, protect and leverage your ideas, please call: (866) 734-2568, click: http://www.adler-law.com, or write: David @ adler-law.com.

Adler Law Group – Providing innovative legal counsel that elevates aspirations to achievements.™

Contracts & Copyright: Issues for Authors, Writers & Creative Professionals

To find out more about how the Adler Law Group can help your business identify risk and issues related to intellectual property ownership, corporation or LLC formation, or just assess risk associated with your business, contact us for a freeno-obligation consultation by emailing David @ adler-law.com, visiting our web site www.adler-law.com, or calling toll free to (866) 734-2568.

Three Things To Improve Your Law Firm’s Social Media Marketing in 2015

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When I committed myself to social media marketing a few years ago, like most lawyers, I wasn’t quit sure what I was getting myself into. One thing I knew for sure: I had to just start.

I’m sure my early posts were fairly mundane and added little value, let alone acted as a catalyst for a conversation. As most social media experts will posit, social media is about identifying and engaging with customers, employees and prospects. Over time, I increased my engagement, learned to participate and learned what worked and what didn’t. What follows are a couple of things that I try to keep in mind as part of my legal social media marketing efforts.

1. Have a voice. As lawyers we have instant credibility. Use this to your advantage. Whether you are a personal injury lawyer or in house counsel to a pharmaceutical company, you probably follow certain topics or have expertise in a particular area. You can use your area of expertise to talk about events, trends or interesting developments. Even if all you do is post a link to something that interests you, you are developing your online persona.

2. Cultivate your followers. One of the most powerful aspects of social media marketing is the network effect. As followers like, share or favorite your content, your message gets spread exponentially. Don’t be afraid to engage with those followers to cultivate and strengthen those relationships.

3. Always evaluate. Sometimes I am shocked that a post gets shared or favorited. For whatever reason, the subject matter resonates with my followers and my followers’ followers. When I see that, I try to note the subject area or topic, how it was shared an by whom. Focusing on content that others find useful enhances the value of my voice and my content.

As we look forward to 2015, now is an opportune time to take a look at what work last year, what didn’t and how we can improve our focus going forward.

If you find my posts uself, I encourage you to share, comment, follow or just get in touch.

Best of luck for your legal marketing efforts in 2015!

Failure to Mind Corporate Details Leads to Loss of Copyright, Infringement Lawsuit

The case of Clarity Software, LLC v. Financial Independence Group, LLC is a great example the serious, negative consequences to intellectual property ownership when business owners and legal counsel fail to ensure that tasks are completed.

The short version is that the creator of computer software, Vincent Heck, sold the copyright in his software to settle a debt to a creditor, Eric Wallace, who intended to form Clarity Software, LLC to own and distribute the software. The lawsuit was for infringement of the copyright in the software.

As they say, “the devil is in the details.” In this case, the detail that became a devil, and ultimately prevented Wallace from enforcing a copyright in the software, was the fact that Clarity Software, LLC was never properly formed and therefore lacked standing to sue for infringement.

Forgive me for employing yet another trite phrase, but “truth is often stranger than fiction.” The Defendant proved that a veritable comedy of errors had occurred resulting in no record of the formation, including 1) the Department of State of Pennsylvania losing the certificate of organization, along with all records of the submission and filing of the certificate of organization, 2) the Plaintiff’s bank (PNC Bank) losing its copy certificate of organization provided when Wallace opened a bank account (even though PNC Bank still had the signature card completed when the account was opened), and 3) Wallace, himself a former President of the Pennsylvania Institute of Certified Public Accountants, losing his copy of the certificate of organization and all records of his communications with his attorney.

Defendant successfully moved for summary judgment based on its argument that Plaintiff did not own the copyright at issue in the litigation since it was not properly organized as a Pennsylvania limited liability company and never acquired valid ownership of the copyright.

Hat tip to Pamela Chestek and her blog, Property Intangible, where she first wrote about this case October 13, 2014. The opinion and order can be found here: Clarity Software, LLC v. Financial Independence Group, LLC, No. 2:12-cv-1609-MRH (W.D. Pa. Sept. 30, 2014).

To find out more about how the Adler Law Group can help your business identify risk and issues related to intellectual property ownership, corporation or LLC formation, or just assess risk associated with your business, contact us for a free, no-obligation consultation by emailing David @ adler-law.com, visiting out web site www.adler-law.com, or calling toll free to (866) 734-2568..

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.

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.

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.