Published on: | by

This one isn’t an April Fools’ prank.  On April 1, 2016, the Federal Communications Commission (“FCC”) announced its proposed rulemaking to create regulation that would bind Broadband Internet Access Service (“BIAS”) providers in the interest of enhancing privacy towards consumers.  This proposal has raised objections from AT&T, Comcast, USTelecom, and the Application Developer’s Alliance, claiming that the ensuing regulations would create a morass of regulation in the privacy sphere.  Yet, the FCC’s regulations are to prohibit the monetization of the information that these providers would have due to the use of their services.  So, what is a BIAS and how could these rules possibly protect privacy?

What is a BIAS provider?

The BIAS providers provide internet service through wire or radio.  The FCC even expands this to any functional equivalents to BIAS providers. Of some note is which entities are not BIAS entities.  For example, companies like Facebook, Apple, and to some extent, Google, would not be bound by the terms here and could use the information that is collected through their services.  This is because none of them actually provide the internet service that their consumers use.  There is some room for Google to be prohibited as it provides internet service in some locations through Google Fiber, but the regulations would only prohibit the information that was gained through the use of its internet services, but not services that it provides towards online consumers.  Thus, Google’s Fiber service would likely be prohibited from using consumer’s personal information, while Google’s YouTube service would not.

Continue Reading ›

Published on: | by

Trademarks and branding are an important part of any business organization.  They build the organization’s reputation in providing a product or service.  In late January, the Fine Brothers, had made an attempt to begin a new business venture in licensing their trademarks and intellectual property to create a larger media congregation called “React World.”  The brothers had built a business on producing videos showing the reactions of different subsets of the population, from children to the elderly.  In doing so, they would monetize the videos through sponsorship and advertisement.  To ensure their ability to monetize and license their intellectual property, they applied for trademarks for the words “React,” “Kids React,” and other derivatives.  This prompted a backlash by individuals, fearing that the actions by the Fine Brothers would be used to curtail their activities on the web.  The sheer magnitude from this backlash led to the Fine Brothers withdrawing their application from the process and cancelling their plans.

Notwithstanding the public backlash, the Fine Brothers would likely have their application approved and pushed beyond the public contest phase if they had only waited a little while longer.  The public contest phase is exactly where the Fine Brothers managed to fail.  If they had not brought attention to their trademarking efforts, it would have likely passed through the process.

In general, in the trademark application process, after the trademark examiner tentatively approves a mark, there is a 30-day period to file an opposition. This is open to all individuals that may be harmed by the mark, not just those with similar marks.  As such, the public was able to protest the granting of the “React” trademark.  When seeking a trademark application, the sort of public outcry that occurred in response to the “React” trademark should be avoided.  The 30-day period, while it would be available to the public, did not need to be publicized as with the Fine Brothers.  In filing a trademark that may garner some public opposition, there is no need to draw further attention to it.  If the brothers had not withdrawn their application, this type of opposition would have been heard by the Trademark Trial and Appeal Board, and overcome by the Fine Brothers.

Continue Reading ›

Published on: | by

In recent years, the internet has connected the general public across continents.  Notably, it can be expected that data can easily travel across countries in a blink of an eye, without any delay and on a daily basis.  The transfer of data is an important part in business as well.  With any multinational entity, personal data crossing countries is inevitable.  However, each country may have different guidelines that a business must ensure compliance.

Recently, the European Union announced a new change to its privacy laws.  Formerly, it would allow American, and other businesses, to obtain a “pass” for its privacy laws by certifying themselves as compatible for its safe harbors scheme.  This safe harbor scheme requires a business to meet standards for privacy protection.  However, on October 6, 2015, the European Court of Justice ruled that the previous system for allowing corporations to obtain accreditation, and shifting data between the United States and Europe, was improper due to the current intelligence methods in the United States.  This oversight ended the safe harbor provision.

The new rules establish a Privacy Shield register and a free alternative dispute resolution system.  The organizations will have to self certify annually, with verification by the Department of Commerce, and comply with the Privacy Shield framework.  As part of compliance, organizations must provide a response within 45 days and create a no-cost independent recourse system where complaints and disputes will be resolved in a timely manner.  In addition, the European residents will be able to pursue legal action for claims such as, misrepresentation, and the participants must commit to binding arbitration at the European citizen’s request.

Continue Reading ›

Published on: | by

Trademarks are a vital part of how your business is branded and how you appeal to clients and consumers.  What about those trademarks that push the boundaries on what is socially acceptable?  Generally, the government may not protect those marks that are beyond what is socially acceptable.  What is socially acceptable now?  Can the same standards apply and restrict what you can trademark?  To what extent can you push the boundaries in your branding?

How did the court rule in In Re Tam?

In recent times, the United States Patent and Trademark Office (USPTO) has ceded the restrictions on demeaning and offensive marks.  This is in response to the recent “Slants” case, where Simon Tam, a musician, filed a trademark application for his band’s name “The Slants.”  His trademark application was then denied under Section 2(a) of the Lanham Act.  This section prohibits the use of immoral, deceptive, or scandalous marks that may disparage living or dead people.  This section is infamous for the reason why the Washington Redskins trademark was cancelled.  However, Mr. Tam contested the refusal of his trademark, claiming that he wanted to take back the word “Slants” for his band, resting his argument on the First Amendment.  In doing so, through a long legal battle, the Federal Circuit eventually found for Tam, in an en banc hearing, stating that Section 2(a) violated his First Amendment right.  Furthermore, while the ruling had only applied to the disparaging part of the section, the USPTO ceded that the “scandalous and immoral” aspects of the legislation were likely to be unenforceable for similar reasons.

Continue Reading ›

Published on: | by

As we discussed in part one of this issue, during the late morning of December 2, 2015, a couple armed with weapons walked into a banquet room filled with people.  At first, the attack was categorized as another mass shooting that ended in a large number of fatalities. As the investigation continued, however, more details emerged surrounding the couple.  The FBI concluded that they were “homegrown violent extremists” that had no connection to foreign terrorist organizations. They were merely inspired by such organizations and committed the attack by their own volition.

During the investigation, the FBI obtained Syed Rizwan Farook, one of the shooters, cell phone. The FBI was attempting to gain access to the information stored on the phone, but the method they employed locked them out. As a result, the FBI asked Apple if they were willing to create a program that would create a backdoor. This backdoor would disable certain security features and allow investigators to access Farook’s phone. Apple, however, refused to do so, citing consumer privacy. The FBI then successfully applied for a court order. The judge ordered Apple to create the software, but Apple filed an opposition. In response to the opposition, the Department of Justice applied its own court order, requesting the judge to require Apple to comply with the first order. The federal judge has yet to rule on the request.

Apple’s Argument

Continue Reading ›

Published on: | by

On December 2, 2015, Syed Rizwan Farook and Tashfeen Malik, walked into a banquet room at the Inland Regional Center in San Bernardino, California, armed with semi-automatic weapons. At the time, the San Bernardino County Department of Public Health was holding a training event and holiday party.  Approximately 75-80 people were in attendance. The couple opened fire, and in a matter of several minutes, killed 14 people and seriously injuring 22 others. The couple left the scene before the police arrived at the crime scene.

Immediately thereafter, law enforcement officials started a search for the couple who left in a black SUV. Based on a tip from one of Farook’s neighbors, officers went to his home and a car chase ensued. The SUV eventually stopped and there was an exchange of gunfire between the couple and officers. The couple was killed in the five-minute exchange.

While investigating the case, investigators found a possible link to a foreign terrorist group thereby ruling it a terrorist attack. However, after FBI investigations, it was concluded the couple were “homegrown violent extremists” inspired by foreign terrorist groups. The investigation stated they were not directed by a particular foreign terrorist group or part of any terrorist cell.

Continue Reading ›

Published on: | by

Product diversion is when an unauthorized seller sells a product outside of authorized distribution channels. The product goes through various unauthorized channels in order to reach the shelves or listings on a website. This is a common practice with high end and expensive beauty products.

The way these unauthorized retailers and e-commerce sites obtain these products often involves reaching out to an authorized seller of the product. For example, many manufacturers have a contract with various salons to exclusively sell their products. These salons, in turn, sell the products per their contract. However, there are salons that work in the gray market. The ones that are in the gray market enter into deals with a third party that offers to buy the items in bulk. The third party then sells the item to an unauthorized seller. The unauthorized seller then sells the items on websites such as eBay and Amazon.

The danger of diverted products going through these unauthorized channels are high for both the consumer and business. For example, products can be tampered with during the process. Products can change bottles, be diluted, and more. It could cause health problems for those who are sensitive towards certain ingredients. It can also be dangerous to businesses because it will hurt their profits. The businesses will lose their cut of product sales from the authorized seller and can receive negative reviews from the public. For example, if a consumer, who has used Brand X body wash for years, buys the Brand X body wash from an unauthorized reseller because it was cheaper on Amazon than in store and has a severe allergic reaction to it, then he/she may be tempted to post a negative review. The problem is that the blame is not on Brand X, but on whoever tampered with the product before it was sent to the consumer. Although, the blame is on someone else, Brand X will receive the negative review that will discourage other consumers from purchasing its product.

Continue Reading ›

Published on: | by

In recent times, counterfeit items have become a large problem for many designer luxury brands. With the rapid growth of e-commerce, counterfeiters have moved their products from the streets to the Internet. This creates a problem for designer luxury brands because it is not easy for counterfeit items to be sold before their eyes. The sale of counterfeit items can affect everything from sales, to reputation, to good will. Many designer luxury brands are players in the fashion industry. The fashion industry, however, is a fickle one. One day you are in, the next you are out. The biggest asset a designer luxury brand can have is its status. Once the brand starts to lose its status in the industry, it is difficult to recover.

Protection of intellectual properties against unfair competition has become a constant battle for designer brands. The latest battle comes between French luxury company, Kering, and Chinese e-commerce giant, Alibaba. Kering luxury brands include, Gucci, Yves Saint Laurent, and more. In May 2015, Kering filed a lawsuit against Alibaba for encouraging and profiting from sales of counterfeit items on its website. This lawsuit, however, is the second legal action between the two parties. The first lawsuit was filed in July 2014 with similar causes of action. The lawsuit was retracted when Alibaba promised to work towards stricter intellectual property protections. However, Kering became frustrated with the lack of progress and filed the second lawsuit in 2015.

In its complaint, Kering alleges that Alibaba encourages counterfeiting on its platforms by allowing keywords such as “replica” and “guchi” to lead to counterfeit items. The complaint alleges Alibaba fosters the sales and purchase of counterfeit goods by providing a platform for such transactions. Alibaba, however, argues the lawsuit is frivolous and claims that it works with luxury brands to help protect their intellectual property.

Continue Reading ›

Published on: | by

In general, trademarks are marks that are associated with a particular brand. Examples of trademarks include the golden arches for McDonald’s and the mermaid for Starbucks. Trademarks are important to businesses because they distinguish the business from its competitors. Businesses use these marks in marketing to gain consumer attention. Once a consumer is familiar with a brand, has developed a positive opinion on it, then he or she is more likely to buy products from the brand.

However, when a particular business becomes successful, competitors will often try to emulate the business’s model and possibly engage in deceptive practices. A common practice is trademark infringement. Trademark infringement is when a business takes another business’s trademark and creates a similar mark. What the infringing business is banking on is consumer confusion. It is hoping that consumers will be under the impression that the infringing business is associated, or possibly, even be the business that actually holds the mark. The infringing business is then taking away sales from the authorized trademark holder.

Dangers of Online Trademark Infringement

Continue Reading ›

Published on: | by

The Internet has become an important aspect in our lives. With the Internet, people can pay bills, make appointments, and buy or sell products.  For example, websites like Amazon, Craigslist, and eBay allow the public to buy and sell products.  So, due to the ease of e-commerce transactions, counterfeiters have found a new medium to sell products.  E-commerce transactions do not require a physical meeting of the seller and buyer, so it becomes easier for counterfeiters to falsely claim they are selling authentic products.

Not only do online counterfeiters affect the public, but they affect businesses as well. Counterfeit items can affect a business’s bottom line. Counterfeit items can cause loss of sales, bad reputation, and loss of goodwill.

A way a business can address online counterfeiting problems is by hiring investigators to locate and identify the online counterfeiters. These investigators are skilled at online fraudulent transactions and can become valuable assets. The investigators create a list of sellers that are known to sell counterfeit items or have the typical characteristics of online counterfeit sellers. These characteristics include selling designer items for an extremely low price on low quality websites. The list is then sent to the business and the business determines whether or not it wants to conduct a sting operation to confirm the counterfeit nature of the seller. If the business decides to conduct the sting operation, then the investigator will set up a purchase, make an inspection, and determine if the goods are actually counterfeit.

Continue Reading ›