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Avenues of social media such as YouTube and Facebook allow users to contribute to individual pages with self-generated content that may infringe upon intellectual property rights. Accordingly, as social media continues to thrive, so do potential trademark infringement disputes. In attempting to resolve these disputes, it is helpful to consider strategies that will lead to desirable outcomes for the involved parties.

First, it is important to establish contact with the other side. Initiate communication through the medium that houses the violation to get the other side’s attention. For example, if the violation involves an unauthorized Facebook page, send a message on Facebook regarding the page in question.

As you begin to establish contact, remember that the most aggressive approach is not always the most effective. The offending party will likely ignore a stern cease and desist letter, or alternatively, become defensive, making future interactions more difficult and strained. A cordial and even-toned letter is more likely to generate an effective response and a possible resolution. For example, it is ineffective to immediately send a letter demanding that the opposing party take down the infringing material under the Digital Millennium Copyright Act (“DMCA”). The DMCA criminalizes the improper use of trademark material and allows for parties to issue a “takedown notice” asking the violating party to remove the infringing material from the social medium. Nonetheless, communicating with the other party before taking strong action, allows for the opportunity to gather background information while sustaining the right to proceed with DMCA procedures later. In addition, gathering such information will prevent the possibility of liability for making false claims of infringement under 17 U.S.C. § 512(f).

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The United States District Court in the Northern District of California has issued a preliminary injunction in favor of Apple, Inc. that prevents Samsung Electronics Company, Ltd. from manufacturing or distributing its Galaxy Nexus smartphone in the United States.

A preliminary injunction is a court order that temporarily prevents or requires a certain action until the court has time to reach a judgment in the case. Under the Patent Act, courts “may grant injunctions” in order to maintain equity between parties and protect the rights secured by a patent. Courts may grant a preliminary injunction where the requesting party shows that it is likely to succeed in the case, the party is likely to suffer “immediate and irreparable harm” without a preliminary injunction, a balance of equities weighs in favor of the requesting party, and a preliminary injunction is in the public’s interest.

Apple filed a lawsuit against Samsung for approximately $2.5 billion, alleging that Samsung’s Galaxy Nexus smartphone violates four Apple, Inc. patents, causing injury to iPhone sales. This is one of the largest patent suits of this kind.

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The Digital Millenium Copyright Act (DMCA) contains a “safe harbor” provision that protects internet service providers that feature user-directed content from liability for copyright infringement. In UMG Recordings, Inc. v. Shelter Capital Partners, L.L.C., the Ninth Circuit Court of Appeals reviewed the requirements for “safe harbor” protection, upholding the broad interpretation that “safe harbor” has received from numerous courts in prior decisions.

Veoh is an online service, launched in 2005, that allows users to upload and share videos, view other users’ videos, and view authorized content from copyright holders. During the upload process, Veoh’s software applies various automated processes to make video files available to users via streaming in a common, accessible format. Veoh’s revenue comes from advertising, but access to all of its content remains free of charge. Users who wish to upload content must agree to Veoh’s terms of use, which prohibit uploading copyrighted content without permission. Veoh also uses filtering software to prevent uploading of infringing content.

UMG Recordings is one of the world’s largest music publishers. Its activities include music production, music distribution, and music video production. It owns an extensive catalog of copyrights. Veoh concedes that users were able to access and download content copyrighted by UMG, despite its efforts to prevent copyright infringement. Veoh has removed material alleged to be infringing on UMG copyrights, based on notices from the Recording Industry Association of America (RIAA).

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The list of generic top-level domains (gTLD’s), such as “.com” or “.edu,” has changed very little over the history of the internet, until recently. Between January and May of 2012, the Internet Corporation for Assigned Names and Numbers (ICANN) accepted applications for new gTLD’s. It reportedly received more than two thousand applications, many of which may go live by the start of 2013, after review by ICANN. Trademark owners should be aware of their rights, in the event that someone else attempts to register an infringing gTLD.

ICANN recognizes several different types of top-level domains, and the most well-known, and widely available, TLD’s are the generic TLD’s. Seven original gTLD’s became available in the 1980’s, .com, .edu, .gov, .int, .mil, .net, and .org. Three of these, .com, .net, and .org, have been available to registrants with no restrictions. ICANN added new gTLD’s over the years, such as .biz, .info, and the recently-added .xxx, making a current total of twenty-two. In June 2011, ICANN took an unprecedented step of allowing applications for new gTLD’s beginning in 2012. The application process requires filing a complicated packet of materials and a non-refundable fee of $185,000 payable to ICANN.

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The internet and social media have allowed people, businesses, and brands to communicate and interact more than ever before. As much benefit as that brings, it also brings significant risks to the reputation of both people and brands. The internet allows people to post using a pseudonym, or to appropriate someone else’s name. The appropriated name could be that of a prominent individual or (“public figure”), but online “persona hijacking” can affect anyone.

Generally, the motive of most persona hijacking is profit or fraud. Someone may appropriate the name or likeness of a famous person to profit from public goodwill towards that person. It could include setting up social media accounts, e-mail addresses, or websites using the person’s name, or some other effort to spoof the person’s identity. For a person who is not famous, persona hijacking may serve a function much like identity theft, using that person’s credentials to obtain, for example, fraudulent credit.

In some cases, the purpose of persona hijacking is to submit a person’s name to criticism or parody. The line between legitimate commentary and unlawful harassment, however, can be very fine, and parody can easily become a “false light” portrayal of a person. Use of a person’s name or likeness for the purpose of criticism or parody may, in certain limited circumstances, be protected by the First Amendment. In other cases, it may constitute unlawful infringement of a person’s trademark rights or right of publicity.

A person who uses their own name in commerce, usually someone prominent in business or entertainment, may obtain trademark protection. This generally prohibits others from using the name commercially. For most people, the right of publicity prohibits use of their name or likeness without their consent, especially for commercial purposes. The Fair Use doctrine, however, may allow use of a name or likeness for legitimate criticism or parody, where it is clear that the work is not originating from the person being appropriated.

You can take several steps to protect yourself from online persona hijacking:

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We have submitted a petition to ask Congress to review and modify section 230 of the Communications Decency Act in order to limit the protection granted to interactive online services, such as news websites, blogs, forums, and listservs. Also, Congress should set new policies and procedures for interactive online services to confirm the true identity of their users and members. This confirmation of a user’s or member’s true identity promotes protection against bogus statements made against innocent individuals and prevents the victimization of businesses.

This petition should be signed because consumers and businesses are facing various problems such as defamation, harassment, or retaliation by anonymous users on interactive online services without recourse and protection. Unfortunately, section 230 of the Communications Decency Act grants broad immunity to interactive online services. By doing so, such immunity tilts the scale of justice and creates an unreasonable result for innocent individuals who are being targeted by anonymous users and have no remedy for protection.

Please visit this link, review and sign it if you are willing to support our request for change in legislation.

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In general, small businesses are often a labor of love for their owners. They require a massive commitment of time and energy to build, nurture, and grow, but along the way, small businesses can get caught in a wide variety of legal quagmires. Understanding these risks, and knowing how to prepare for and mitigate them, is key to avoiding time- and resource-consuming legal disputes that can hinder or even ruin a business. Legal risks of small businesses could fit into seven very broad categories:

1. Maintaining a Safe and Secure Premises: Brick and mortar businesses may encounter claims from customers or others injured by an unsafe condition on business property, such as a broken step or a spilled substance on the ground. Regular maintenance of the premises, along with liability insurance, can mitigate this risk.

2. Consumer Complaints: Businesses that do not promptly respond to customer complaints about products or services may encounter legal claims. Customers should receive prompt responses to reasonable complaints or concerns.  All advertising and marketing materials must accurately portray the company’s products or services in order to avoid deceptive trade practice claims.  Robust quality control may help a business avoid putting faulty or defective products into the marketplace. This can help companies avoid product liability claims.

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California entrepreneurs should carefully consider the structure of their new business. There are many ways to organize a business, and their suitability depends on factors like the nature of the business, the number of owners and investors, and even the personalities of the principals. We will examine four business structures and discuss their advantages and the differences: DBA’s (for “doing business as”), C corporations, S corporations, and limited liability companies (LLC). Three major factors come into play in evaluating these business structures: the taxation of income, the liability of the owners for business debts, and the desired level of formality versus flexibility in running the business.

DBA (“Doing Business As”)

A DBA, also known as an assumed business name or a sole proprietorship, is the simplest business organization, because there is no organization. It is simply a business name used by an individual to transact business. The owner pays taxes on business income with a Schedule C attached to a federal income tax return. A major pitfall of a DBA is that it provides no liability protection for the owner whatsoever, since the business is not a separate legal entity. In terms of flexibility, any recordkeeping requirements would depend on the nature of the business. Any requirements imposed on DBA’s in general are minimal.

C Corporation

A C corporation, named for the subchapter in the Internal Revenue Code governing corporate taxation, is a very common business structure, providing a high level of liability protection for its owners. Owners in a corporation are called shareholders, and they are usually not liable for the business’ debts. Income in a C corp is subject to “double taxation,” meaning that the business entity pays income tax on its revenue, and then shareholders pay income tax on dividends distributed to them by the company. The C corp requires a high degree of formality, with regular shareholder and director meetings, minutes, and annual financial reports required by law.

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Copyright law, which protects a person’s rights to his or her own creative works, dates back nearly to the invention of the printing press. It protects a creator’s ownership of a creative work and the rights to use the work publicly. It also gives a creator remedies against anyone who infringes those rights. Where trademark law protects brand names, logos, and other “marks” representing a product or service, copyright law protects creative works like novels, songs, photographs, designs, or software. Computer technology, particularly the internet, has made copyright infringement quite easy and created new challenges for copyright owners.

Nearly any original creative work has copyright protection. Online, this can include graphics and designs, text, photo or video files, music, or code. A website created for a business most likely contains content subject to the protections of U.S. copyright laws. Technically speaking, copyright protection applies the moment a work is created in a physical form, which includes creation as a digital file. While copyright laws apply to a work upon its creation, enforcement is very difficult unless the creator takes additional steps to document the work’s creation and ownership with the government.

The U.S. Copyright Office allows copyright owners to formally register their works in a central location. Registration may deter others from infringing on a work, and it allows a copyright owner to effectively defend a work through the litigation process. Evidence of registration with the Copyright Office serves as prima facie evidence of ownership in a legal dispute. Most importantly, registering a work in a timely manner allows the owner to claim statutory damages in an infringement suit. Courts can award damages of up to $150,000 per act of intentional infringement, but only if the copyright owner follows the registration procedures.

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Advertising that a product is “made in America” or “made in the U.S.A.” is a very effective sales strategy, according to recent polls. An Adweek Media/Harris Poll conducted in July 2010 found substantial support for domestic-made products, with sixty-one percent of nationwide respondents saying they would be more likely to purchase a product labelled “made in the U.S.A.” Only three percent said they would be less likely to buy something. In California and the rest of the West Coast, about fifty-seven percent said they would be more likely to buy “Made in the U.S.A.” products.

Because labelling or claiming a product as “Made in the U.S.A.” makes a statement about the product’s origin or quality, the Federal Trade Commission (FTC) views it as a form of advertising. It is therefore subject to deceptive trade practice regulations. Labelling can be express, meaning an actual label appears on the product, or implied, meaning that the product’s marketing states or strongly implies U.S. origin. The rules apply not only to product labels, but to any marketing activity, such as print, television, or internet advertising.

The FTC’s rules can be complex and cumbersome, but every California business that wants to use the label needs to understand their responsibilities. Businesses that make unqualified claims that a product is “made in the U.S.A.” could face legal consequences if their claim is false or unsupportable. The federal Lanham Act allows anyone damaged by a false or misleading claim of a product’s origin, such as a competitor, to sue for damages.

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