Periscope, a new live-streaming application, was launched less than a month ago, but it’s already making headlines with celebrities and ordinary people alike broadcasting their daily activities and conversing in real time. Live streaming is not a novel concept, but it might be the next big thing in the social media world. As people are ready to embrace this new way of interacting, “periscoping” may soon become a daily activity for many people across the globe. Read on to learn more about Periscope and what live-streaming applications can bring to the table.

What is Periscope?

Periscope is part of the next generation of social media applications that are based on real-time interactions. Acquired by Twitter for nearly $100 million and launched on March 26, 2015, the tool seems to be on the rise.

How was Periscope created? 

Periscope started two years ago when CEO and co-founder Kayvon Beykpour was traveling to Istanbul, Turkey. The protests in Taksim Square, near the hotel in which Beykpour was supposed to stay, became violent; however he couldn’t find any meaningful information on the web about the extent of that violence. Thus, the idea for Periscope was born. He had an urgent need to see the protests in real time, but there was no social platform to do so. Periscope has already demonstrated its abilities to capture events in real time, including live streaming protests in Ferguson, Missouri, and capturing the fires in San Francisco’s Mission District and New York’s Lower East Side.

How does Periscope work?

Periscope is an IOS application that can live stream what you see at any given moment. It can essentially broadcast your every move if you wish. People are already using it in a variety of ways, including artistically, conducting Q&As, walking around a city, talking, or just showcasing their everyday activities. The app also has a way to interact with those who are watching, all in real time. Viewers can choose to ask questions or leave comments that are shown through a trace of messages on the screen, like a live feed. Engagement can also be demonstrated through hearts that viewers can create by tapping the screen as many times as they like. This feature shows viewers’ level of engagement and interest–the more hearts that are tapped, the stronger the viewers’ levels of satisfaction and excitement are.

Unlike other live-streaming apps, Periscope lets you save your broadcasts for a certain period of time, which enables viewers to play back what they’ve already seen. The app also allows viewers to invite their followers to watch a live steam together.

Some users of Periscope report a need for certain technical updates, such as better search features, better browsing, and a better notification system. The developers have already fixed the issue of the “zoomable map” that could pinpoint a person’s location when live streaming, and are continuing to work on other improvements.

Watch the video below to learn more about Periscope from BeyKpour who speaks about his idea and the app’s capabilities.

Is Periscope the first live-streaming app? 

All in all, progressive technological advances constantly change the world of social media interactions and online communication. Facebook was launched in 2004 and forever changed the way people communicate online. Twitter followed in 2006. Both companies have continued to expand by acquiring photo and video-oriented social media platforms; Facebook acquired Instagram, while Twitter bought Vine. Now, new advances are under way and live-streaming applications may be the next big thing.

History of Live-Streaming Apps

Periscope is not the first application to allow users to live stream their experiences. Live streaming has been around since the 1990s when video recording and instant messaging became the big thing. The reason why Periscope is making  waves right now is because live streaming has moved into the mainstream, and people are more comfortable revealing information about themselves.

Even before the idea of Periscope was born there were an abundance of applications that could be described as under the live-streaming umbrella. UStream was founded in 2007 and provides free video-streaming services as well as paid ProBroadcasting options. YouNow, launched in 2011, allows live broadcasting. Justin.TV has been around for several years and just recently was renamed Twitch Interactive, a new platform to broadcast video games or any gaming-related content. Livestream is another app that lets users broadcast and watch live events.

Meerkat

Meerkat is a live-streaming application that was launched on February 27, 2015–one month prior to Periscope. In this regard, Meerkat can be considered the first “new generation” live-streaming app. The application really made its debut last month at SXSW in Austin, Texas. A number of performers were “meerkating,” aka live-streaming their shows, which greatly promoted the app. Meerkat is a real competitor of Periscope as both apps are brand new, well designed, and easy to use. Unlike Periscope, however, Meerkat doesn’t provide an option to save broadcasts–all of its live streams are instant and cannot be replayed.

Watch the video below to learn more about Meerkat from its founder, Ben Ruben.

What are the concerns with using live-streaming apps?

Live streaming applications such as Periscope and Meerkat raise certain concerns, including the infringement of privacy, intellectual property rights, and harassment and cyber bullying.

Infringement of Privacy

Clearly, live streaming can invade peoples’ privacy. If you are in a public space, anybody can live stream you, revealing your activities and location. The fact that one may not wish to be live streamed is irrelevant as there are no real remedies for it. Generally, when people are in public places they don’t expect privacy, but with live streaming, the invasion of privacy becomes more pervasive and inescapable. People can be streamed without their permission or knowledge.

Celebrities and politicians have even greater privacy concerns, as Periscope can provide users with the instant ability to live stream public figures if spotted on the street or in any other public place. It could completely transform the way famous people maintain their images and market themselves.

Intellectual Property Rights

Intellectual property rights generally protect people’s creations, whether they are in the form of music, design, photography, performance, or any other artistic expression. Intellectual property rights include trademark and copyright laws.

Live streaming is an immediate recording of something that is happening at any given moment, and therefore doesn’t require downloads or saving a copy of one’s broadcast. This leads to confusion as to how to apply existing copyright laws to the new generation of apps that can live stream certain content. In their terms of use, both Meerkat and Periscope state that users are prohibited from exploiting third-party copyrights and trademarks in their live recordings. In addition, under United States copyright laws, it’s illegal to reproduce, distribute, display, or perform a copyrighted work without permission from the copyright holder.

As of now, live streaming is subject to the same laws that protect any copyrighted video, song, or photographic content. If one live streams, he distributes the content of his broadcast to an unknown amount of users and reproduces it at the same time. This can potentially infringe on artists’, publishers’, and labels’ copyrights if the content is copyrighted on the first place.

Simply put, if you live stream at a concert or sporting event, you could violate copyright laws, public performance laws, and exclusive rights of broadcasting stations to live stream an event. Most of the time concert venues and sport leagues clearly state on admission tickets their policies regarding video recording or streaming of the event. Not only can this violate the right of the artist to solely profit from her performance, but in the case of sporting events, can infringe on intellectual property rights of leagues and pay-per-view (PPV) producers. In addition, major television providers spend millions of dollars to obtain exclusive rights to broadcast games and other major events. Record labels’ performance rights can be easily infringed as well by live streaming sound recordings at shows.

It’s possible that live streaming performances and sporting events can also violate reproduction and distribution rights of copyright holders. As Periscope archives users’ live streams for 24 hours, it can potentially infringe on reproduction rights if the saved content is considered intellectual property.

Harassment and Cyberbullying

Using social media can perpetuate harassment and bullying. Generally, every social media platform has rules and protocols that prohibit pornographic or overly sexual content, as well as content that can incite violent, illegal, or dangerous activities. Periscope is not an exception–its community guidelines are crafted to prevent sexual comments and online harassment of any sort. However, the new app is still struggling with enforcing these rules as its instant messages are bursting with sexually explicit communications. It was reported that many female users have been sexually harassed while live streaming.

As Periscope exposes more intimate moments of people’s lives, the dangers of using this technology may become greater than those of other social media. The difficulty can be seen in its live feed, which vanishes in a matter of seconds–how can this dissipating content be reviewed? Private broadcasting settings are another worry as those can appeal to people who operate sex cameras or conduct other illegal activities.

Periscope is a very new app so there are expectations for future updates and technical improvements. The company has acknowledged the need to find a better solution for moderating users’ content, and is working now on a new feature that will allow for the easy and instant blockage of undesirable users.

What changes can live-streaming apps bring to our lives?

With live-streaming applications on millions of smartphones around the globe, changes in media coverage, politics, and advertising are imminent. But the biggest change may be manifested in a completely new kind of online interaction. With Periscope and other live-streaming applications, it will be easier to reconnect with families, and share happy moments such as weddings, birthdays, and graduations all in real time.

Live streaming can revolutionize news reporting by giving media outlets the opportunity to produce real-time news. At the same time, live streaming will create challenges for reporters as events and stories unfold instantly, journalists will have to adapt to the ever-changing dynamics of live-streaming reporting.

The advertising industry will greatly benefit from live-streaming apps, as well as experience difficulties in using such apps for marketing purposes. Live streaming can bring brands closer to customers, provide unbiased and instant feedback about products, and help to promote transparency in companies’ practices. On the other hand, brands that decide to live stream for the purposes of promoting their products may be overwhelmed by the amount of people they will need to alert about their live-broadcasting. Companies will need to make sure that every person featured in live streaming intended for commercial purposes has signed a release, otherwise the brand can be sued for violating personal rights.

The world of politics is about to change, too. Political campaigns can be live streamed, providing instant access to candidates’ everyday activities and all sorts of political events. Labor Secretary Tom Perez and Senator and presidential candidate Rand Paul are already using Meerkat and Periscope to live stream their political endeavors. Some financial and structural constraints of political campaigns may be diminished as live streaming is a free and easy-to-use platform that provides instant access to millions of voters.

Conclusion

Humanity seemingly has no other choice but to embrace new technology and welcome a new generation of social media apps based on live streaming. But as technology evolves so should our laws. There is an urgent need to rethink and reevaluate current laws pertaining to intellectual property rights and synchronize them with technological advances. There is also a need to create better ways to protect individuals from bullying and women from sexual harassment on the web. Media outlets, record labels, and sports leagues should also embrace new technologies. Consumers should be ready for a closer engagement with brands. Meerkat may have started the revolution, but Periscope made a mind-blowing breakthrough. We’ll have to wait and see what’s next when it comes to live streaming.

Resources

Primary

U.S. Copyright Office: Promoting Investment and Protecting Commerce Online: The ART Act, the NET Act, and Illegal Streaming

Additional

Australian Business Review: Periscope: Will the Live-Streaming App Be the Next Big Thing?

ABC News: Periscope, Meerkat, YouNow: Which Live Streaming App is Right For You

BBC News: Periscope: Anglesey Man Behind Video Streaming App

Billboard: The Meerkat Minefield: Legal Issues With Live-Streaming Apps

CBS: Periscope, Meerkat Threaten Multi-Billion Dollar Sports Broadcast Copyrights

Columbia Journalism Review: How Social Media Livestreams Will Impact Political Journalism

Customer Think: As Twitter Acquires Periscope, Live Video Streaming Apps Will Transform Social Media Marketing in the Second Half of 2015

DailyMail: New Live Streaming App Periscope is Already on Its Way to Becoming a Parent’s Worst Nightmare

Fast Company: Streaming Video on Periscope Just Got Way Less Creepy

Graham Cluley: Periscope Raises Privacy Concerns

Guardian: Periscope Up! Twitter’s Live-streaming App is Exciting Us, But Here’s How it Could Be Better

Huffington Post: Why You Should Care About Periscope, Twitter’s New Live-Streaming App

Huffington Post: What Does Periscope’s Live Mobile Streaming Mean to Media?

IT Business: Up Periscope, Down Privacy? Twitter’s Live Streaming Service Bound to Cause Controversy

Kerry O’Shea Gorgone: Meerkat, Periscope, Privacy and the Law: Is Live-Streaming Video Legal?

Legal Zoom: Copyright Law on Streaming PPV Events

MIT Technology Review: Broadcast Every Little Drama

New York Business Journal: Down Periscope: MLB  Set to Crack Down on Live Streaming From the Bleacher

The New York Times: As Twitter Introduces Periscope, Tech Titans Bet on Live Streaming Video

Providence Journal: So Social: Meerkat, Periscope Make it Easy to Live Stream From iPhone

Verge: Periscope, Twitter’s Answer to Meerkat-Style Live Streaming, is Now Available

Wired: Twitter’s Periscope App Lets You Livestream Your World

Valeriya Metla

Valeriya Metla is a young professional, passionate about international relations, immigration issues, and social and criminal justice. She holds two Bachelor Degrees in regional studies and international criminal justice. Contact Valeriya at staff@LawStreetMedia.com.

The post Periscope & Meerkat: Live Streaming is the Latest Social Media Development appeared first on Law Street.

A California federal court dismissed a trademark lawsuit last week that John Wayne Enterprises brought against Duke University. The case was dismissed based on lack of jurisdiction and improper venue.

Actor John Wayne, born Marion Robert Morrison, had several nicknames that contained the word “Duke,” such as Duke Morrison, Duke Wayne, and The Duke. John Wayne Enterprises was created to “preserve and protect the name, image, and likeness of John Wayne by associating the John Wayne brand with quality and timeless products and experiences that embody the spirit of John Wayne and give back to the community.” In July 2013, the organization filed a trademark application with the Patent and Trademark Office to use the trademarks “Duke” and “Duke John Wayne” on all alcoholic beverages except beer. Last July, the organization sued Duke University for infringing its Duke trademark on alcoholic bottles.

John Wayne Enterprises argued that Duke University does not own the word “Duke” for use for all purposes’ however, the university argued that John Wayne Enterprises’ use of “Duke” on alcohol beverages caused consumer confusion, which trademark law is designed to prevent. According to the Los Angeles Times, John Wayne Enterprises’ “Duke” trademark is “a label on a bottle of bourbon stamped with a silhouette of the movie star in a cowboy hat, clutching a gun. The name ‘DUKE’ is stamped over his thighs, and John Wayne’s signature is reproduced near his feet.”  The John Wayne Enterprises logo can be seen here.

John Wayne Enterprises tried to gain personal jurisdiction over Duke University in a California federal court because “the school actively recruits students there, raises money there, maintains alumni associations there and sells university-related products there.” However, U.S. District Judge David Carter dismissed the Wayne estate’s lawsuit for lack of jurisdiction and said the case belonged in front of the Patent and Trademark Office Trademark Appeal Board in Alexandria, Virginia.

The court believed that “Duke was aware of John Wayne Enterprises’s presence in the state, but that there was no showing how Duke [University] purposefully directed its conduct at California by filing an opposition to trademarks in Virginia [the location of the Patent and Trademark Office.]”

John Wayne Enterprises and Duke University have battled over the use of the “Duke” trademark before. A July article in the Hollywood Reporter cites conflicts over using the name “Duke” in restaurant services, gaming machines, and celebrity licensing services. Thus, Judge Carter’s dismissal is likely not the end of this case. John Wayne Enterprises can always bring a suit against Duke University on the East Coast.

It’s rare to see John Wayne on the losing-end of a battle, but I am sure that John Wayne Enterprises is already preparing its next move to prevail in the end.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post The Duke’s Trademark Suit Against Duke University is Dismissed appeared first on Law Street.

Various companies with recent intellectual property disputes are taking us back for a nostalgic look at our 90s childhoods. Chances are that at least once in your life you witnessed a jungle gym proposal involving the iconic Ring Pop.

Topps Co., the distributor of the Ring Pop, filed suit on August 21 in New York against the Ohio-based Primary Colors Design Corp. claiming trademark infringement. Topps asserts that three months ago Primary Colors revealed a product too similar to the Ring Pop at the National Confectioners Association’s Candy and Snack Show. According to Topps, Primary Colors showcased the Valentine Ring Lollipop — a sugary candy gem mounted on a plastic base in the design of a ring.

Topps requests a court order that would ban Primary Colors from producing and selling the candy item, in addition to financial damages.

It looks like there may only be room for one candy jeweler on the playground. But in case you weren’t the romantic type but more of a young businessman, you may have found yourself trading Pokémon cards in the sand box.

Courtesy of Kate Haskell via Flickr

Last week, Pokémon Co. International sent a cease and desist notice to Shapeways Inc. demanding it halt sales of its 3-D printed planter, which resembles the Pokémon character Bulbasaur. Although Shapeways did not officially label the planter as a Pokémon character, calling it a “succulent monster” instead, more than one reference to the Pokémon franchise was included in the listing.

After receiving the notice, Shapeways removed the listing from its website, but Pokémon International  is “asking for all the money associated with this model.”

So as children, after summers of Ring Pop proposals and Pokémon transactions, when winter rolled around, Disney movies were the go-to form of entertainment.

Last month, Disney found itself in its own winter nightmare when it was unsuccessful in convincing a court in San Francisco to dismiss a copyright infringement lawsuit. Kelly Wilson, a California filmmaker, sued The Walt Disney Co. over a trailer for the popular new Disney movie Frozen. Wilson claimed that in the trailer, the snowman character Olaf too closely resembles a character in his film The Snowman.

Courtesy of HarshLight via Flickr

A federal judge denied Disney’s motion to dismiss this case, writing, “the sequence of events in both works, from start to finish, is too parallel to conclude that no reasonable juror could find the works substantially similar.”

Although Disney’s Frozen features the famous song “Let it Go” with the lyric, “No right, no wrong, no rules for me I’m free!” the lawsuit is likely to go to trial.

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Alexandra Badalamenti (@AlexBadalamenti) is a Jersey girl and soon-to-be graduate of Fordham University in Lincoln Center. She plans to enroll in law school next year to study Entertainment Law. On any given day, you’ll find her with big blonde hair, high heels, tall Nashville dreams, and holding a newspaper or venti latte.

Featured Image Courtesy of [Elizabeth Albert via Flickr] 

The post The 90s Called: They Want Their Courtroom Back appeared first on Law Street.

Hey girl.

Hi there.

That’s a great color on you.  Fuchsia really brings out your eyes.

Didn’t know my eyes looked pink in this light, but sure.

Here, let me buy you a drink.  Can I get a Date Grape Koolaid for the lady?

If a man ever attempts to buy me a Date Grape Koolaid, I’m sure I’ll either move to the farthest bar stool or start a conversation over the downplay of rape in the dating environment and why he believes this should be perpetuated in the moniker for this beverage. Well, the first option is quicker.

This week in the trademark world, Kraft Foods Group, the maker of Kool-Aid, has threatened to sue a bar in Spokane, Wash. over the name of one of its drinks –- the Date Grape Koolaid.  Daquiri Factory, the recently opened Bar & Grill in Downtown Spokane, has been subject to outrage and significant criticism from rape survivors and the media. A spokesperson for Kraft has said the company is “appalled” at Daiquiri Factory’s unauthorized use of the “Kool-Aid” trademark and is preparing to bring legal action against the bar.

Though I couldn’t find the drink on the bar’s online drink menu, the owner thought he would send a  message to all of the drink’s protesters via Facebook (though the account was deleted as of last night):

We are going to Grape The Entire City of Spokane Tonight! One Grape a a time.. We will Grape your sister.. We will Grape your mother, your brother, your cousin! Then we are going to grape the Spokane River… and that will make enough grape for everyone from here to CDA to Seattle! The Grape will go on and on.. until we Grape The Entire United Grapes of America.. with the Y2KGRAPE VIRUS…. AND THHHHEENNNNNN… WINTER THE EPIDEMIC THE DELICIOUS GRAPE DATE HAS CAUSED TONIGHT STARTING AT 4PM!

In response to angered Facebook readers, the bar commented that “It’s A Daiquiri Bar, not a CANDY STORE! 21 & UP WELCOME!”

How insensitive and tactless can you be? The name is ruthlessly offensive and undoubtedly similar to the registered “Kool-Aid” trademark. So, a) good luck trying to get that legally protected, and b) even if that’s not your intention start thinking of an equally provocative name to get the drink consumed BECAUSE KRAFT WILL EAT YOU ALIVE IN COURT.

Not only does the name trivialize date rape but it demeans survivors with punchlines and gimmicks — and we see where that got Rick Ross. My message to Daiquiri Factory: issue a public apology, change the name, and act before your business starts to suffer. Today it’s covered in Time and Law Street, tomorrow…U.O.E.N.O.

Gena.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Get in touch with Gena via email here.

Featured image courtesy of [Lars Plougmann via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post How to End Your Date Before It Even Starts: the Date Grape Koolaid appeared first on Law Street.

What’s unacceptable for pork is OK for people these days? At first glance of the Patent and Trademark Office’s decision to reject a mark for “Redskins Hog Rinds,” I felt of tinge of angst rise within me due to the controversy surrounding the Washington Redskins’ use of the trade name for their team. Seriously? You’ve got to be fucking kidding me.

But after taking a step back and assessing the bigger picture, I realize that what the PTO is actually doing here is setting precedence!

Here’s the story: back in 2009 when the Washington Redskins’ trademark was up for appeal before the Trademark Trial and Appeal Board (TTAB), the PTO failed to terminate the Redskins’ trademark protection on the grounds that the plaintiffs’ claim had surpassed the statute of limitations. The case was never dismissed on its merits.

However, recently the Washington Redskins’ trademark has been under heavy scrutiny — warranting opinions by members of congress, Native American tribes, civil rights groups, and even the president himself. The suit, invoked by a Native American collective, is before the TTAB where the PTO is considering whether the Redskins’ moniker and logo should lose their federal registration status. I’m feeling like… the PTO is foreshadowing a decision in favor of Washington’s NFL team losing its trademark.

On December 29 in a rejection letter for the “Redskins Hog Rinds” mark, the PTO stated that the term phrase may contain “offensive slang” or “disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols.” Oh word? The letter went on to point out that definitions of the ‘redskins’ word indicate derogatory connotations, in addition to the word being cited as offensive by many Native American groups, including the National Congress of American Indians.

So what would this mean for the team? Well, losing federal registration of the mark wouldn’t necessarily force the team to change its name. In fact, they could choose to ignore the decision altogether and keep operating their business as usual. However, because they would no longer have protection over the name, if I wanted to create Redskins t-shirts and sell them in my boutique (this is all hypothetical), neither Dan Snyder nor the NFL could do anything about it. I also recently learned that the NFL divides merchandise sales across the league, meaning that if the Redskins lost their trademark, the entire league could be out of pocket.

I’m interested to know where some of you stand on this dispute. Is the PTO overreaching by deeming the mark as derogatory? Are they opening the doors to hyper-sensitivity and prudently narrowing the pool of phrases available for registration? Or are they proper in determining that this mark shouldn’t be granted protection in light of evidence indicating that the term ‘redskin’ is racially offensive?

Perhaps that last question is leading, but that’s only because I personally don’t see how this is even an issue that could be contested. The Lanham Act states that a mark is not to be granted trademark protection if it is found to be disparaging or offensive, which it so clearly has been. It’s against the law people! At this juncture, perhaps the Redskins should direct their focus on winning more games or creating a captivating new mark, because I’m pretty sure this is a wrap.

Gena

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Get in touch with Gena via email here.

Featured image courtesy of [Keith Allison via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Why the Redskins Should Prepare for Trademark Loss appeared first on Law Street.

Happy Thanksgiving!! I hope everyone takes at least three trips to the dinner table, two naps in your bed, and one family outing — whether it be to see Hunger Games, look at Christmas lights, or pick up more beer for your uncles. Do it. And if you run out of topics to discuss or if you’re one of those people who just remember things better when they’re in list form then this is for you!

Here are 7 things that I think you should know about intellectual property. Before you take that first nap of the day, think about it. Think about your thoughts — how you express them and how you can protect that expression. What about that business you wanted to start — what did you want to call it again? How would you like it if someone tried to capitalize off of the goodwill you built behind that name?

That’s what I thought.

1. You don’t need to register your creation with the US Copyright Office to have copyright protection. The moment you place your expression on paper (or in some tangible form) it’s protected by copyright. But here’s the catch: if someone infringes on your copyrighted material, you will have to register to bring suit.

2. Federal registration of a trademark isn’t necessary either! You have trademark rights in the name or slogan that you create the moment you place it into commerce. (Commerce = in the market.) Also, you don’t need federal registration to use the TM symbol either. The ® is off limits unless you’re registered though.

3. There are two types of patents. Design patents are for, well, novel designs. For example, the sleek makeup of iphone display stands is covered by a design patent. Utility patents protect new inventions and processes, i.e the detection of your headphones in your phone or the analysis of your face to unlock an Android. Clearly, I have phones on the brain today.

4. Applications filed with the Copyright Office are public records and only $35. Why not register your art with the Copyright Office? Shine bright like a diamond, Riri.  But keep in mind that this is not the avenue you want to take if you’re trying to protect your family’s mac-and-cheese recipe.

5.  Registration of a mark is not guaranteed upon filing. Your potential mark may cause confusion with another owner’s mark, among other issues. It’s $325 to file a trademark application online and $375 to file for federal registration on paper. Your money may not be refunded so it’s a good idea to conduct a preliminary search (or hire an attorney to do so) before you file.

6. Copyright Law doesn’t protect ideas, only the expression of those ideas. Don’t rely on Copyright Law for that great business idea you have brewing. I would recommend nondisclosure agreements. If you’re meeting with investors to build your capital, get them to sign nondisclosure agreements so that if they share or utilize your idea beyond the bounds you establish you’ll be able to bring a breach of contract suit.

7. Timing. Copyright protection (for works created after ’78) lasts from the moment of creation until the end of the author’s life plus 70 years. Trademark registration can last indefinitely as long as you file the requested paperwork the years you are told. Utility patents filed after June 8, 1995 are granted protection for 20 years from the date of the application. Design patents have protection for 14 years from the date the patent is granted.

Learn more at these sites:

On Copyrights

On Trademarks

On Patents

Gena.

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Featured image courtesy of [Lynn Friedman via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post 7 Things to Place In Your Back Pocket appeared first on Law Street.

Counterfeit products: the items that your empty wallet hates to love. Well, it seems as though the number of counterfeit products rotating the black market is dropping this season. A couple of weeks ago, six New Yorkers were charged with trademark counterfeit and conspiracy. They have allegedly sold more than $13 million worth of Lacoste, True Religion, and Ralph Lauren’s Polo clothing to distributors throughout the nation. Those are some serious allegations, Artful Dodger.

The NYPD found more than 2,000 boxes of the counterfeit trademarked clothing in Queens last summer. In addition to these dubious activities, the criminal group has caught the eye of the NYPD Intelligence Bureau. Ray Kelly, the NYPD Commissioner, stated that the covert operations were particularly concerning because of “indications that proceeds were sent to areas in southern Lebanon.”

Well, there isn’t much left to interpretation here. Trademark counterfeiting is a crime under the Lanham Act, and people should face penalties for engaging in such activities. A little bit of background: trademark counterfeiting is the creation of an identical or discernibly the same image as a federally registered mark. Counterfeiting is a crime under Lanham, while infringing a mark is a civil suit. Counterfeit is a form of infringement, but infringement does not equate to counterfeit.

Enough of that — what I’m more concerned with is the composition of the counterfeit marks. I’ve seen a fake Fendi or Gucci bag in my day, but I’ve never been exposed to a fake Lacoste logo, for example. Is the crocodile turned to the right instead of the left? Is the tongue pink instead of red? Is the fake mark visually indistinguishable? And unfortunately, I couldn’t find a picture.  BUT, I wanted to compose some visuals and brief background information of a few trademark counterfeit cases throughout IP history.

In 2008, Nike alleged that two defendants manufactured and sold counterfeit footwear bearing the Nike trademarks over the internet. Read more here. Courtesy of Richard IJzermans via Flickr.

Last September, Several Atlanta residents were accused of “promoting and otherwise advertising, distributing, selling and/or offering for sale counterfeit products, including at least handbags and wallets, bearing trademarks that are exact copies of the Chanel Mark” for goods of a lesser quality. Read more here. Courtesy of Wen-Cheng Liu via Flickr.

In May 2006, Rolex Watch USA, Inc. discovered the watchreps.com website and shut it down through the website’s Internet Service Provider. However, the company discovered that the site had been reactivated three years later and was redistributing counterfeit Rolex watches. Read more here. Courtesy of Charlie J via Flickr.

For more information on trademark counterfeiting, see the International Trademark Association’s website.

Gena.

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Featured image courtesy of [Eric Skiff via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Trademark Counterfeiting: The Crime Explored appeared first on Law Street.

Victoria’s Secret — can I call you Victoria? — has been a naughty, naughty girl.  As a dedicated brand minion for Victoria, I felt like a bit of a sleazeball when I decided to spill the specifics on her latest antics.  I really hate to break it to all my lovers out there, but the largest American retailer of lingerie has been accused of — wait for it — infringement.  Mmmmhmm.  And this isn’t the first time.

Unfortunately, I have to stand my ground on the opposite bedpost here, Victoria.  Hanky Panky Ltd., a Manhattan-based lingerie company, is suing Victoria’s Secret for trademark infringement of its registered marks “Indulge Your Inner Flirt” and “After Midnight.” First off, can anyone tell me why we’re automatically in the red zone?  “The Dupont Factors!,” shouted James Franco (cited merely because he’s an all-time overachiever and not because of the subject matter). Why yes, we have two lingerie companies. This means we’re already dealing with similar products that should be tossed in the indicative-of-infringement basket. Not that this should have been glaringly evident to Limited Brands, the parent company of Victoria’s Secret. No no no. Let’s dig deeper.

The “After Midnight” Infringement Claim

Hanky Panky registered the “After Midnight” mark to cover its 2010 collection of *ehem* “crotchless panties, sensual peek-a-boo bralettes, daring teddies and babydolls.” The complaint claims that this raunchy collection also features “sexual accessories such as lubricants and candles.”  Sounds good to me.  Problem is, it sounded pretty good to Victoria’s Secret, too. So good that they decided to slap the name on their own “aphrodisiac mood candle.”  Well, why stop there? Let’s also put the stolen mark on a few products in literally the same category, erotic unmentionables, that the mark represents for another company.

I don’t understand. Did Victoria’s Secret just think Hanky Panky was going to look the other way as they deliberately trampled on and sucked all of the commercial juice out of the mark?  Hanky Panky has a valid trademark. Sure the mark is suggestive, but it’s valid nonetheless. Victoria’s Secret took the exact mark of a competitor, with the knowledge that consumers would be confused, and placed it on extremely similar goods. It comes as no surprise that Hanky Panky is also asking for punitive damages under state law.  I see some much-needed discipline in your future, Victoria.

The “Indulge Your Inner Flirt” Infringement Claim

Hanky Panky trademarked the catchphrase, “Indulge your inner flirt,” in 2007, and has been using the slogan in its ads ever since. Yet Victoria’s Secret still thought they were entitled to thrust a strong middle finger to trademark law and appropriate the phrase in the ads for its own sexy PJs. This can’t be real life. Why should companies even utilize our trademark laws if they have no tenacity?

Soo…are you just running low in your fresh ideas bucket, Victoria? You knew better and chose not to do better. Sigh.

Still looking forward to the next semi-annual sale, though.

Gena.

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Featured image courtesy of [thinkretail via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post After Midnight: Victoria’s Secret Indecent Behavior appeared first on Law Street.

Cody Romano, creator of BreakYourFacebook, has been threatened with a lawsuit by the social media powerhouse that I love to hate: Facebook. (And no, I don’t have an account.) BreakYourFacebook is a webapp that allows Facebook users to regulate how much time they spend on the site.  Users indicate how long of a hiatus they’d like to take from Facebook, and then the app generates a new password (not to be memorized) and sends a reminder on the scheduled date. Now that’s a new concept for the younger members of society — a technological tool to schedule your detachment from technology. It helps reduce time wasted on Facebook so people can actually live the lives that they simulate on the site.  I like it. Facebook? Eh. Not so much.

Romano, a software engineer from Cambridge, said that he was  “rudely” told in an email that he would face fines and a possible lawsuit if he did not immediately obliterate his webapp.  The cease-and-desist letter was sent to him on Monday, and included brief discussions of why his registration and use of BreakYourFacebook.com violated the Lanham Act and infringed on the ‘Facebook’ trademark. Facebook doesn’t seem to be attacking the application itself, but rather the domain name BreakYourFacebook.com.

When I read the email for myself, I didn’t think that it came across as crass or tactless. Honestly, it was much more amicable than the cease-and-desist letter I formulated in Trademarks Law last year, but I did want to delve into their claim of infringement under the Lanham Act. That’s right -proooo bonoooo. [Disclaimer: this is a legal opinion from a J.D. awaiting bar results. I am not licensed, and my remarks should not be used to incite any action. Analysis is provided to inspire discussion only.]

To show infringement of a mark under the Lanham Act (for a mark that has already been federally registered, like Facebook) the plaintiff would have to show:

1. That they own a valid mark;

Not an issue here. Facebook is a distinctive service-mark used in commerce to identify and distinguish its social media services from other social media platforms.

2. That another party has used the mark in commerce without their permission;

BreakYourFacebook has arguably been used in commerce because it was, presumably, used in the advertising of the site’s services — the ability to schedule time away from Facebook. Offering services through the internet has already been held to be “commerce” under the Lanham Act.

3.  That the other party’s use of the mark causes a likelihood of confusion between plaintiff’s mark and the mark at issue;

Now, this is the sticky part. In the interest of time, I’ll summarize a few arguments on both ends. There are numerous factors the court considers in determining likelihood of confusion. As far as appearance, Romano could say that the marks are not visually similar because “Break” and “Your” precede the mark “Facebook.” He may win this one. Also, the marks differ on a phonetic basis as well. However, Facebook could argue that its fame makes it more susceptible to infringement. (Yes, that’s a factor to consider.) Also, the marks both concern social media services, though one is attempting to decrease the usage of social media, this could still be a factor found in favor of Facebook. Also, if Facebook’s lawyers can ascertain any evidence of actual confusion by its users, which they have the deep pockets to search for, the needle would lean significantly towards Facebook’s end of the spectrum. There’s much, much more to this, but you can see where it’s going.

4. There are damages.

Facebook could easily quantify some form of economic harm because BreakYourFacebook endeavors to limit the amount of time spent on their site.  They could claim that they’ve lost consumers, that Romano somehow benefited from his unlawful conduct, etc etc.

I decided to take the time to sift through Facebook’s claim because, although I took no issue with the general tone of the letter, I did find Facebook’s use of their winning court record to be akin to bullying.  Why is it acceptable for a company to say  “all domain names [that have previously been] at issue were ordered to be transferred to [us]” to instill fear in potential infringers? It waives a proverbial index finger at opponents instead of simply laying out the options that a defendant may choose to invoke.

If you go to BreakYourFacebook.com, your browser will redirect you to a posting written by Romano entitled “Facebook Threatened to Sue Me.” In the note, you see that Romano has surrendered his site because he doesn’t “want to contend with Facebook’s endless legal resources.”

Well, Romano, I’m no licensed attorney, but I thought you deserved to get a glimpse of what you’re up against from an analytical standpoint versus a financial one.

Gena.

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Featured image courtesy of [Boxring Atlas Leipzig via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Free-Per-View: Facebook vs. BreakYourFacebook appeared first on Law Street.

This is a fun one.  Mattel, parent company of the makers of the popular board game Scrabble, has attempted to assert their U.K. trademark rights to the letter tiles used in the game. The California company sued Zynga, Inc., creators of “Scramble with Friends,” for allegedly infringing on their tile trademark. I’m sorry…what?

Mattel acquired trademark rights to the tile trademark in 2000. However, last November, Zynga obtained a summary judgment against Mattel on the grounds that the mark was not entitled to registration. Rightfully so. If Mattel were able to preclude the creation of any tile with a letter on it, wouldn’t that only increase the number of corporations attempting to monopolize trademarks? Earlier this month the decision was upheld because the trademark covering a tile, accompanied by its alphabetic and numeric markings, had the potential to be extremely large in breadth.

*gasp* You don’t say?

Needless to say, I’m pleased with the outcome of this case. Trademarks are to be used to protect the goodwill of your business. They are a vehicle for promotion and maintaining distinctiveness in the marketplace so as not to confuse consumers. However, here, Mattel was utilizing their mark to gain unfair competitive advantage. The mark the company wanted to enforce could allow them to keep competitors from creating variations of square blocks with numbers, letters, and combinations thereof.

Here’s the thing: I’m all for protecting the likeness of your brand.  I can see how viewers of Zynga’s game may associate it with Scrabble. We have a word game: check. Tiles with letters on them: check. But that’s really as far as the comparison train takes us.

There are stark differences to be noted. First, Zynga’s placement of a number on the tile is in the top right versus the bottom right number placement by Mattel. Soooo…if I wanted to create a word game and indicate the value of each letter, even if I placed the number in the center, I would be subject to a trademark infringement suit? Second, even though the two games have the same objective of creating words with the letters you are given, the rules aren’t the same. One is timed and the other isn’t. One only allows you to connect letters that are adjacent to each other and the other doesn’t. Not to infer that there needs to be a long list of similarities for a judgment of infringement, but I’d say there is enough difference between the two that Mattel can’t unequivocally claim harm.

In my humble and personal opinion, this is just a matter of gluttony.

Gena.

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Featured image courtesy of [torbakhopper via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Is “Mattelalistic” a word? appeared first on Law Street.

During a recent interview with the Associated Press, President Obama opined that the Redskins should consider changing the name of their $1.5 billion franchise to one that does not offend a “sizeable group of people.” He went on to state: “I don’t know whether our attachment to a particular name should override the real, legitimate concerns that people have about these things.” I agree, wholeheartedly.  If the team name is offensive to any group of people, it should not be in existence.  I equate “redskin” to “blackface,” each being offensive monikers used to identify Native Americans and African Americans, respectively. If you look up the term “redskin” in Merriam Webster, the first words you will find are “usually offensive.”

Lanny Davis, counsel for the Redskins, responded to Obama’s remarks by pointing to a 2004 poll taken by the Annenberg Institute in which 9 out of 10 Native Americans indicated that they were not offended by the “Washington Redskins” trademark.  The Annenberg Institute polls are highly respected and considered reliable based their trade name alone. However, should we discredit the 9% of Native Americans who consider the name to be a racial slur? I doubt that the Trademark Trial and Appeal Board, in 1999, would have ruled to revoke the Redskins’ trademark without good reason (although the decision was ultimately reversed on account of the suit not being filed within certain time parameters). At the Unity Journalists of Color convention, Roxanne Jones, an editor for ESPN Magazine, stated that in a debate over the Redskins’ name, “our Native American peers yelled back, a few of them in tears, that we were being insensitive and ignorant for not understanding that the Redskin name was hurtful and damaging to their community.”  I’m confused, did they not participate in this poll cited by Davis?

Davis drew attention to the fact that, similar to the Chicago Blackhawks, which are located in Obama’s home state, the Redskins “do not intend to disparage or disrespect a racial or ethnic group.”  Daniel Snyder, owner of the Redskins team, is likely hesitant to change the mark because of the financial risk he may run of losing brand loyalty. And, of course, we can’t neglect the glaring reality that the team has not been performing well in the playoffs for years.  I don’t watch much football, but my Dad is a diehard Redskins’ fan – even going so far as draping himself in the gold and burgundy fleece blanket I got him for his birthday. So I’m aware that we’ve (being a Washingtonian, I feel affiliated by geography) only won one out of our last four games this season, with a win record of 42% of regular season games in the past decade. My point here is this: the value of the team is largely due to the fan base. So if the mark were changed, there is a high risk of economic damage. Yet, in a society where a team name of “Washington Honkies” would not have been given second consideration due to its disparaging effect, I cannot say I’m in any way surprised.

So is it non-offensive intent or reckless disregard of disparagement in favor of financial gain? Just because a group has lesser representation in our nation should not mean they aren’t owed the same degree of respect.

All Hail the R-words.

Gena.

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Featured image courtesy of [Keith Allison via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Hail to the Coldskins appeared first on Law Street.

One of my career aspirations is to be a Trademarks Examiner at the Patent and Trademark Office.  So I guess you could say I’m trying to make trademarks my niche, the best dish in my food truck of legal knowledge, if you will. You have to love the aesthetic nature of it all, the analytical maze that you navigate to determine if a mark is eligible to be trademarked.  Although I see the arena of Trademark Law like a freshman Longhorn sees Darrell K. Royal, the subject may actually still be a bit lackluster…much like my perspective on Constitutional Law.

Instead of catching you up on new developments in the field this week, I thought we should ease up on the information overload and have a good time!

Here are just a few reasons why I love Trademark Law so much and why I think you should too:

1. Who doesn’t like to draw? Even if you’re on the stick-figure-with-balloon-shaped-heads level like I am, you still doodle once in awhile. Trademarks are much like doodles.  Someone had a business idea and was thinking of a name, symbol, or logo to represent that business. They started jotting down some ideas that were floating around until the cliché ‘AHA!’ moment finally hit, and now you get to use your 6-figure degree to analyze whether the business owner’s creation can be protected by trademark laws! (Note: if you’re interested in working with actual bodies of art, the Picassos and Rowlings, that’s copyrights –we largely stick to marks around these parts.)
2. What other field involves this degree of creativity? Labor Law? ‘Not I’, said the EEOC. Copyrights? Ok, yeah. Copyrights is cool, but Trademarks is so much more unique. You’re going to look at marks that may differ only in font or only in phonetics, inter alia. It forces you to be meticulous and determine if that wavy S on the end of Bobby Joe’s mark, that just so happens to be on the end of Wanda Roy’s mark, is enough to make the two confusingly similar. What types of businesses are being represented? How do the marks sound? How different are they in appearance? Ultimately, your concern as a trademarks attorney is to protect consumers from being exposed to a variety of similar marks that may cause confusion in the marketplace or capitalization off of another business owner’s good will.
3. There’s something for everyone. Trademarks Law covers nuances in the composition of body styles for vehicles to the design of dresses and shoes. (YES! THE YSL case!!) For example, Bentley sued the manufacturers of a “Bentley Body Kit” for imitating the inherently distinctive shape of Bentley vehicles under Trade Dress laws, which is a segment of Trademarks Law.
4. Trademarks attorneys are just so frikkin’ nice. Seriously. What pleasant-natured people we are.

On a completely separate note, if you’re ever in the DMV area in September, look into DC Art All Night. The talent in the Wonderbread Warehouse this year was nothing less than palpable. If this intrigues you, you probably enjoy art to some degree.  And if you’re on this site, then you have some interest in the law.  So why not combine the two and pursue a career in trademarks? (heh heh see what I did there?) Sure, there’s this large amount of standard character format (non-stylized text) marks that you analyze as well, but those are pretty neat too!

For more information about trademarks and possibly registering your own mark, visit the USPTO’s website.

Gena.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts.

Featured image courtesy of [opensource.com via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Trademarks Law – A Field For Your Consideration appeared first on Law Street.