Business and Tax Lawyer Blog

When a parent or other elderly relative reaches the point where they need help with their finances, it can be emotionally draining. It can also be a long, drawn out and frustrating process if the relative does not have their financial affairs in order – especially if their memory is failing.

While it can be a touchy subject, the right time to talk to your parents about their finances is when they retire. In an ideal case, parents would make plans, sign powers of attorney, keep accurate lists of income and assets, and be open to discussing finances with their children long before they become an issue. Unfortunately, in most cases, children don't realize there is a problem until it is too late, and they step into a financial mess.

Some tips for easing the transition include:

Automate: have social security automatically deposited and bills automatically debited.

Simplify: consolidate retirement accounts as well as bank and brokerage accounts.

Communicate: If one child is responsible for the finances, they should keep their siblings up to date in writing at regular intervals.

Investigate: look into insurance policies, Medicare, long-term care insurance, and supplemental benefits from former employers.

Manage: look into protecting your parents' income by using a portion of their savings to purchase annuities that pay out a fixed monthly sum for life.

Diversify: if the stock portfolio hasn't been looked at in awhile, it may be time to reallocate for today's financial realities.

Get more information on how to manage your parents' finances at Taking Over Elderly Parents' Finances.

If you live in the Jacksonville, Florida area and require assistance with estate planning, please contact Wood, Atter & Wolf, P.A. for estate planning legal counsel.

Venture capitalists are flocking to green-technology companies to get a cut of the action. Approximately $1.59 billion dollars have been sunk into environmentally-friendly corporations worldwide in the third quarter of 2009. These businesses are developing clean systems ranging from solar panels to electric vehicles.

The government is also investing heavily in these firms through loans, grants, and subsidies. Hopefully, this will become a trend as opposed to a flash in the pan undertaking. Clean technology now takes up around 27% of venture investment.

I, for one, welcome anything that could help loosen big oil's stranglehold on the energy market! It clearly makes sense to find new sources of energy as the world's supply of fossil fuels is being depleted at an alarming rate. Especially here in Florida, we also need to look at the impact we're having on the environment, more specifically our waterways and the Everglades!

How do you feel about green technology? Please post your comments or contact me to discuss!

Bernie Karl, the proprietor of the Chena Hot Springs Resort outside Fairbanks, Alaska, has built a portable geothermal generator that he says can provide enough power for 250 houses. The self-proclaimed "imagineer's" machine uses 165°F water to produce large quantities of electricity.

Mr. Karl collects water from underground hot springs lying beneath his resort and pipes it into his device. The hot water then boils refrigerant contained inside casing surrounding the pipes. Next, the boiling refrigerant causes a connected turbine to spin, thereby generating electricity.

According to a 2007 Massachusetts Institute of Technology report, tapping into 2% of the energy contained inside the Earth as heat could yield 2,000 times more energy than is used globally! I'm all for new, unorthodox technology that can give us energy with minimal damage to the environment. How can one not be a fan of green innovation?

In a move to "incentivize innovation," the Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO) rescinded former patent regulations that some said imposed undue restrictions on patent applicants. The old rules were enacted in August 2007 by the previous administration and were "highly unpopular from the outset."

The rules limited patent applicants in two ways. One set of regulations impeded the process of getting extra continuation applications. Continuation applications allow an inventor to disclose additional claims while maintaining the priority date of the original patent. Applicants were allowed two continuations as a matter of right. The USPTO granted additional requests for continued examination however only upon a showing of good cause.

Another regulation limited patent applications in substance. The so-called "Claims Rule" permitted only five independent claims per application. The rule further limited the total amount of claims per application to twenty-five. Anyone exceeding the guidelines was required to submit extra information to help patent examiners process the applications. These rules were put in place to expedite the patent process, however critics said they merely weakened it.

If you are considering patenting your invention, contact a competent patent attorney to arrange a consultation.

Bloggers beware! Recently, the Recording Industry Association of America (RIAA) issued Google a take down notice for hosting websites that were either streaming or distributing music without authorization. Most, if not all, of the websites included in the notice have blog addresses and have either been removed from the internet or have had the music download feature disabled.

Have you noticed your protected work being reproduced on the internet without your permission? When the owner of copyrighted material, or as in this case the owner's representative, seeks to stop online infringement, a first step is to issue a take down notice under the Digital Millennium Copyright Act (DMCA). To be valid, the notice must contain several elements. For example, a claimant shall identify both the copyrighted work that has been infringed and the infringing material. Also, the claimant must include a statement that the owner has not permitted such use. The remaining requirements for a DMCA take down notice are listed in the United States Code, 17 U.S.C. Section 512(c)(3).

On the other hand, if you notice that materials on your website have been blocked or deleted by the service provider, it may be due to a DMCA claim. In that event, you may pursue a counter-notice. A counter-notice ensures that copyright owners and their representatives do not cause the removal of non-infringing materials.

If you find yourself in any of these situations, it may be wise to contact an experienced intellectual property attorney before proceeding.

A new invention is often followed by imitating competitors unless, of course, that new invention is protected by a patent. That various blanket with sleeves products serve as a perfect example.

You're probably familiar with the infomercial-promoted Snuggie, the blanket with sleeves. With the Snuggie, a user can stay "totally warm" and still have the "the freedom to use [their] hands." The product seems fresh and has been referred to as a trailblazer. However, the Snuggie is not the first of its kind. It is predated by the Slanket, the original blanket with sleeves. In turn, the Slanket is predated by the Freedom Blanket, also called the original blanket with sleeves. Although the inventors of the Freedom Blanket have made online claims that their sleeved blanket idea was stolen, they have not sought legal action. Similarly, the Slanket inventor, Gary Clegg, has not sued because he never patented his product. He claimed that he attempted to patent the Slanket, but was told by patent lawyers it would not be feasible. Clegg considers the Snuggie's marketing campaign to be advantageous to Slanket sales because the Snuggie's popularity has raised consumer awareness about the product in general.

These products exemplify the importance of patent protection. Because the inventors of the Freedom Blanket and the Slanket did not seek patent protection, competitors were free to borrow their idea and create similar products. To determine whether or not you should seek a patent for your invention, get in touch with a patent attorney to explore your options.

If you use noncompete or confidentiality agreements in your course of business, make sure the employees properly fill them out. A detail as minor as a signature in the wrong place may invalidate your ability to keep your trade secrets secret.

Earlier this year, IBM initiated a lawsuit with David L. Johnson, a former executive, who became employed with Dell, one of IBM's competitors. IBM claimed that the ex-exec was in violation of a noncompetition agreement as well as an agreement to protect trade secrets. As the lawsuit was pending, IBM attempted to obtain a preliminary injunction to stop Johnson from "performing duties" at Dell. IBM suspected him of using valuable trade secrets in the course of his new employment, which would be a breach of duty to IBM. However, a U.S. District Judged denied the preliminary injunction. The denial came was due in part to the fact that the validity of the agreement was questionable because it was not properly signed. Although Johnson signed the document, he did not do so in the correct place.

For more information regarding noncompete and confidentiality agreements, get in touch with an attorney to discuss your options.

In light of a declining economy, courts are less likely to enforce noncompete agreements. Such agreements protect valuable training and trade secrets by preventing employees from competing with their former employers. They are not being enforced due to the interest in allowing people to work in such tough economic times. Despite the fact that noncompete agreements are seldom enforced, companies have other means of protecting their assets.

As an initial matter, a company will audit all of its proprietary information, assess the risks involved in losing such information, and determine how an employee might misappropriate it. Once the audit is complete, the company will employ a "comprehensive protection program," which is a combination of policies and restrictive covenants as well as a consistent enforcement scheme. Restrictive covenants differ from noncompete agreements in that they can be tailored to protect specific company assets. For example a "nonsolicitation agreement" prohibits an ex-employee from contacting the employer's clients. In this manner, the company will not lose clients when a key member of the sales staff defects to a competitor. Another example of a restrictive covenant is a "forfeiture agreement" wherein the employee's benefits from the company cease upon termination of employment. These instruments are advantageous because they offer the most protection with the least restriction.

For more information regarding alternatives to noncompete agreements, contact an attorney to explore your options.

The United States intellectual property offices (U.S. Patent and Trademark Office and U.S. Copyright Office) are open to comments about a new world wide treaty that could affect copyright laws. The World Intellectual Property Organization has recently considered an international treaty that would create minimum standards in copyright laws to provide people who are blind or face other visual impairments better access to copyrighted materials.

The draft treaty is sponsored by the World Blind Union and was introduced at the May 2009 session of the WIPO's Standing Committee on Copyright and Related Rights. At the committee meeting, the United States delegates indicated a commitment to enhancing accessibility of copyrighted works. They also stressed the National policy of gathering information about proposed ideas through consultations, information meetings, and notices of inquiry with citizens.

Anyone is invited to comment on the draft treaty. Comments are due on November 13, 2009 and may be submitted electronically.

"Power to the People – Power Belongs to the People." The Rock Art Brewery in Morrisville, VT adopted that phrase in celebration of being able to keep the name of their 10th anniversary beer, the Vermonster, after settling a trademark dispute with a national beverage manufacturer. Earlier, the makers of Monster energy drink, Hansens Beverage Company, attempted to stop the small brewery from using that name. The Rock Art owner received a cease-and-desist letter demanding immediate abandonment of the term Vermonster. The letter explained that use of the word 'monster' would create confusion among consumers between the beer and the energy drink.

After receiving the notice, the brewery owner used the internet to broadcast what had happened. Public outcry ensued as he received support from the internet community. He also received support from stores in neighboring states as they pulled Monster Energy drinks and other Hansen Beverage Co. products from their shelves. Even a United States Senator observed anyone confusing energy drinks and beer should "lay off the energy drinks."

Though the precise details of the settlement are confidential, Hansen will allow Rock Art to continue marketing the Vermonster brew throughout the nation and Rock Art will not enter into the energy drink business.

The 13th Monopoly World Championship was held this week in Las Vegas Nevada. Out of the 41 international contestants, Bjorn Halvard Knappskog, a 19 year old from Norway, emerged victorious. He won $20,580.00, which is the amount of rainbow colored currency in a Monopoly board game.

Monopoly is one of the most distributed board games in U.S. history, with more than 200 million games sold throughout the world. For the few who are unfamiliar with Monopoly, it is a real estate trading game. The goal of the game is to become the wealthiest player by buying property and charging other players rent when they land on it.

There is some dispute over the origin of the game's concept. Some sources say it emerged from The Landlord's Game, which was invented in 1904. Hasbro, the owner, maintains that Charles Darrow invented it during the Great Depression. He was initially rejected by Parker Brothers, now a Hasbro subsidiary, when he approached them with game proposal. The company finally acquired the rights to Monopoly after Darrow began building game sets by hand and selling them. Consumer demand for the game was convincing.

Darrow patented the "game of barter" in 1935, which is currently assigned to Parker Brothers. The Monopoly brand also received trademark protection in 1935.

In 2008, the United States Congress established a new Office of Management and Budget administrative post: U.S. Intellectual Property Enforcement Coordinator. On September 23, President Obama delegated that position to Victoria Espinel, former Assistant USTR for Intellectual Property and Innovation.

Ms. Epinel's primary job will be to combat counterfeiting and bootlegging of software, music, films, and drugs. She'll have her work cut out for her in trying to encourage countries like China to crack down on piracy abroad and prevent such illicit materials from entering the U.S.

I applaud the decision to create a dedicated executive IP position in order to fight the rampant problem of copyright violations. Not enough is being done to make certain that artists rightfully receive proper recognition and compensation for their works.

 Microsoft has prevailed in its appeal from a $388 million dollar penalty levied against it in a patent infringement case. Uniloc, a California security software company, filed a lawsuit in 2003 against the software giant, claiming that Microsoft infringed on its patent for an antipiracy software-registration system.

Judge William Smith, of the U.S. District Court for the District of Rhode Island, overturned the initial decision and held that Microsoft does not have to pay any damages to Uniloc. The award would have been among the biggest ever granted in an American civil patent action.

Usually computer software is protected by copyright law, so this is a unique case in which a patent was issued. We don't have all the facts, so it's hard to draw any conclusions, but I find myself pulling for the little guy!

A thoughtful patent attorney can ensure that your rights aren't bulldozed by big business.

The respective sales of Hummer and Saturn appear to have derailed, leaving General Motors reeling as it tries to pick up the pieces following bankruptcy. GM may now have to eliminate the brands and shut down approximately 350 additional dealerships at a cost of over $100 million!

This is yet another setback for a giant business that was once a preeminent leader in its field. How did things turn so sour? GM focused too much on cheap solutions and short-term windfalls as opposed to building quality vehicles and listening to consumers' needs. The glut of SUVs produced during the short-lived truck craze is but one example of their greedy knee-jerk management strategy.

Consumers drive the economy (pun intended). As such, it's hard to have sympathy for GM, who did not give the consumers what they asked for. However, it's hard not to feel for the newly slashed dealers that survived the first round of cuts and were lulled into a false sense of confidence.

People who have been laid off from a variety of industries how to get back on their feet. Some have severance packages to invest; others do not. Some want to start their own business; others want to play a smaller role in a more stable company. Whatever your situation, goals, and resources, contact me to discuss your options.

A lawsuit commenced by guitarist Joe Satriani against a wildly popular British band and its record company has been dismissed. Satriani alleged that Coldplay stole substantial parts of his 2004 song "If I Could Fly" and improperly used them in their hit song "Viva La Vida."

From court records of the case, it seems that there was a settlement between the parties. Neither side is admitting that any agreement was reached. Interestingly, another musician, Yusuf (Cat Stevens) is now claiming that "Viva La Vida" ripped off his song "Foreigner Suite" from 1973.

I went through an entire week with Coldplay's version of the song going through my head. I even downloaded it, and listened to it on repeat, hoping that I would get sick of it, and stop singing the song in the shower. It would have been interesting if this case had gone to trial to find out what really happened!

Looking to purchase a franchise? In today's marketplace there are hundreds of businesses to choose from if you want to purchase a franchise. So how do you narrow the field and find the right franchise for you? Consider these few items.

First, what kind of business are you interested in? The selection of franchise opportunities to choose from is as vast as the goods and services available on the market today—from haircuts (Great Clips®)to cleaning services (Jani-King), to package shipping (Postal Connections ™), to restaurants (Baskin-Robbins ®). You should find a business that interests and excites you, so that you can combine passion and profession.

Next, how much is the initial investment? Franchises can range from several thousands of dollars on the low end to over a million dollars on the high end. Usually there is a correlation of the cost to gross sales and profits, but that's not always the case. For example, McDonald's restaurants, cost one to two million dollars for start up and do an average of over two million in gross sales annually, profiting typically in the six figure range.

The best way to gauge financial success is to meticulously go over the Franchise Disclosure Document with a franchise lawyer, a business and franchise consultant, and an accountant. To that effect, an established franchise, such as McDonald's or Baskin-Robbins ®, may have more predictability when it comes to success than a new franchise; however, a newer franchise opportunity may have more room for growth.

Hopefully, these tips will give you a starting point ifor thinking about a business or franchise investment.

A Tallahassee, Florida, Saturn dealer filed suit against General Motors Corporation earlier this year for violating Florida's franchise laws, but Saturn of Tallahassee's chances of prevailing are not likely. The dealership is co-owned by former NBA player Bob Sura. General Motors announced earlier this year that it plans to sell or eliminate the Saturn brand sometime in 2009, and cut nearly 2,400 dealerships from its network of dealers. After seeing sales drop over 70 percent this year at his Saturn of Tallahassee dealership, Sura feels that General Motors has made his Saturn franchise worthless. In effect, the Saturn of Tallahassee dealership feels it has been wrongfully terminated.

The problems for Saturn of Tallahassee in prevailing in its lawsuit against General Motors lie in the fact that General Motors is now in Chapter 11 bankruptcy and may simply terminate the franchises as part of its restructuring process. If so, Sura and his dealership may be left to accept whatever decisions the Bankruptcy Court makes. Sura and other Saturn dealers' best hope may rest upon finding a new buyer for the Saturn brand and maintaining the goodwill it has developed with its customers over the years; several groups have expressed an interest, including some Saturn dealers.

Auto dealership franchises have to make some of the largest investments of all franchise opportunities available on the market. Like all franchisees the money they spend in advertising and building goodwill benefits the franchisor as well as their own franchise. When a franchisee is in compliance with the franchise agreement and is wrongfully terminated or denied the opportunity to renew their franchise, the franchisee has lost the value of their investment.

If you have experienced franchise renewal problems with your franchisor, or you just have questions about franchise agreements in general, ask an attorney for help.

Even though the Internal Revenue Service may seem all powerful, it does have a limited budget when it comes to auditing taxpayers in Florida and throughout the US. The IRS recently reported that it would focus its efforts on wealthy Americans who earn more than $100,000 a year. If you are one of the "lucky" ones to fall into this tax bracket, there are ways to lower your chances of getting audited.

If you are married and both spouses contribute to your family's income, it is legal to file taxes separately. This could help you avoid an audit if the separate returns each show an income of less than $100,000. If you were to be audited, it would only be on one of the returns, not both.

If you have a credit card tied to an offshore bank, cancel it. These credit cards are a very popular way for tax evaders to easily access their hidden offshore funds, and they raise a red flag with the IRS.

Never brag to anyone about how you got away with paying less than your fair share of taxes. If the person you bragged to (or someone else who overheard you) turns you in to the IRS they could be rewarded up to 30% on the additional tax collected from you. If you want to turn in a fraudulent taxpayer, the number to dial is 1-800-829-0433.

Be skeptical of tax planners or preparers who claim that they can get you a huge tax return, or that there is a secret structure that can insulate you from paying taxes. If you get caught and end up in court you could be fined as much as $25,000 for wasting the court's time.

Be careful with claiming business expenses. If you are running a legitimate, for-profit business, there are many expenses that are deductible. If the expense is questionable or you can't substantiate your claim, don't take the deduction.

Of course, always keep records to substantiate your deductions. If you do get audited you will be very glad that you did. Find out more about how to avoid an IRS audit at 6 Ways to Keep the IRS at Bay.

If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with tax planning, please contact Wood, Atter & Wolf, P.A. for legal counsel.

Even though the estate tax is in limbo this year, that is no excuse to neglect estate planning activities. Vital information such as who will take responsibility for your children and who you would like to make medical and financial decisions on your behalf should you become incapacitated need to be decided upon and put down in writing in order to protect your interests. The following eight estate planning steps are ones you can – and should – take right away.

1. Sign a financial power of attorney. This instrument legally designates another person to take care of your financial affairs. This can include paying your bills, managing your investments and filing your taxes. If you don't have one of these documents your family will have to go to court to get permission to handle your affairs, and the time spent waiting could wreak havoc on your affairs.

2. Sign a health care power of attorney and a living will. These documents assign someone to make health care decisions for you if you are unable to do so yourself. They ensure that your doctors and other caregivers follow your wishes for end of life care.

3. Know your net worth. Retirement, investment, and estate planning all require that you know your net worth. Many people are hesitant to find out due to the economic climate, but you may be pleasantly surprised. Remember to count any life insurance policies in your calculations.

4. Double check your beneficiaries. If you named a beneficiary when you filled out your forms for life insurance or retirement accounts, those documents – not your will – will determine who gets the assets. Don't just check your own records, check the company's official records.

5. Create or update your will. If you don't have a will, it's time to get one. If you haven't looked at your will in a while, it is a good idea to refresh it after any major life changes. If you pass away without leaving a will the state will determine who gets what.

6. Consider state estate taxes. Even though the federal estate tax is on vacation for now, your state may levy an estate tax too. Florida estate tax laws changed in 2005, so you will need to familiarize yourself with Florida's laws if you haven't checked them in awhile.

7. Look at who is on the title of assets. If you want your titled assets to fall to your spouse tax free, you need to be sure both of your names are on the title. The same goes for a trust – if you set up a living trust you will need to re-title the assets in the name of the trust.

8. Whittle down your estate while you are still living. For those with estates just above the state or federal exemption amount, giving away money to relatives or charities is a good way to minimize your estate tax. Anyone can give up to $13,000 a year to another person without paying any tax on it. Charitable donations are generally completely tax free.

Read more details of each of these eight steps at Eight Steps To Protect Your Family.

If you require assistance with estate planning, please contact an estate planning attorney for estate planning legal counsel.

The standard for proving fraud in trademark applications, which is grounds for invalidation, has been intensely debated this year. In my post in March 2009, the Trademark Trial and Appeal Board (TTAB) suggested that "inaccurate declarations of use" could possibly amount to fraud. Months later, the TTAB issued a ruling that such inaccuracies only made a "presumption of fraud", which an applicant could overcome by correcting any falsities on the application before a challenge arose. Thus applicants were provided an "option to cure" any inaccurate statements on their trademark applications. The above standards were unfavorable to trademark applicants due to the high risk of trademark cancellation due to invalidation. Under such rule, applicants and their attorneys were required to go above and beyond due diligence in determining the course of use for their potential trademarks.

As if in step with the increasing level of protection for trademark applicants, a recent decision from the United States Court of Appeals for the Federal Circuit provided an even narrower standard to proving fraud and canceling applications. Now the challenger has the burden of proving the applicant had "actual intent to deceive the United States Patent and Trademark Office." In approving this higher standard, the Court reversed the previous TTAB decision and remarked that the TTAB "erroneously lowered the burden of proof" required to invalidate an otherwise legal trademark application.

Despite this added protection, accuracy and honesty is still extremely important in trademark applications. If you are considering obtaining a trademark, first consult with an experienced trademark attorney.

A recent post of mine discussed the financial woes of the United States Patent and Trademark Office (PTO), which are connected with the decrease in applications being filed. A solution may be on the horizon. However, it does not appear to be favorable to future inventors. A letter from the Secretary of Commerce, Gary Locke, urges the Obama Administration to grant the PTO the ability to temporarily raise fees.

The reasoning behind such a "limited interim fee adjustment" is that it is the option with the least adverse effect. Other alternatives include cutting the budget by eliminating PTO services or using Federal tax dollars to subsidize operations. The proposal considers increasing standard application fees, maintenance fees, and time extension fees by roughly fifteen percent.

In contemplation of a possible fee increase, now is the time to patent your invention. Contact a competent patent attorney to arrange a consultation and determine the best course of action.

Blogging has become a popular and effective way to disseminate information about your business and personal life. While some bloggers prefer to use original content in their posts, it is also acceptable to borrow media and information from other internet sources. As a result, many blogs are the product of information that has been copied and modified. Because some of the materials on the internet may be copyright protected, it is important to observe the following guidelines when borrowing to blog.

Use ideas. Recall that a copyright only protects the expression of an idea. It does not protect the ideas or information behind the expression. Therefore you have more liberty to use other people's ideas and information so long as you're not copying the manner in which such information is arranged or expressed.

Public Domain. Materials created prior to 1923 or prior to 1977 without a copyright notice are considered to be in the public domain. That means they are not afforded copyright protection. Thus, you have free reign over public domain materials.

Beware of infringement claims. Realize that in the event of an infringement complaint, you may not be able to remove the troubles by simply taking down the infringing post. Most people take a lighthearted approach to the unauthorized copying of protected materials; they assume a case will be dismissed when they remove the protected materials. They also assume copyright infringement only applies when the copied work is misappropriated for commercial use or to make a profit. Such assumptions are not true. The act of infringement is committed, regardless of whether it's for a commercial purpose, when the work is displayed without the owner's permission or not pursuant to the fair use doctrine.

A Florida boat manufacturer, Hell's Bay , obtained a settlement in its case (which included a trade dress claim) against Beavertail, a Minnesota based boat manufacturing company. Hell's Bay, located in Titusville, Florida, has many boat designs, including several shallow water skiffs. In Hell's Bay's case against Beavertail, Hell's Bay claimed that a number of Beavertail's skiff designs copied those of Hell's Bay designs for skiffs. Hell's Bay also claimed its shallow water skiffs were entitled to trade dress protection because of the uniqueness of the hull designs and the skiff's look.

Trade dress deals with the way providers of goods and services package or design their products. In evaluating whether "packaging" or design of products can receive trade dress protection, courts use the same criteria as they use in trademark claims, and trade dress may be entitled protection even though it is unregistered. Some of the criteria courts look at in determining whether to afford trademark or trade dress protection are whether there is a likelihood of confusion as to the source of the goods, whether the mark is functional, and whether the mark is inherently distinctive or has acquired a secondary meaning. If the packaging or design deserves trade dress protection courts can award injunctive relief along with monetary damages. In the Hell's Bay case, the exact settlement terms were not disclosed and no liability was found or admitted; however, as part of the settlement, Beavertail did discontinue manufacturing the questioned designs, destroy its molds for those hulls, and give Hell's Bay some monetary compensation.

If you are a business owner it is important to remember that product design and packaging, including the 'look and feel' of your business, may be entitled to trade dress protection as long as they meet the required standards. If you have questions about trade dress and trademarks, please let me know.

Several former Mail Boxes Etc. franchisees in Florida have been certified as a class, in their California lawsuit against UPS. The Superior Court for Los Angeles County certified the class-action lawsuit in July. The suit was brought by over a hundred former Mail Boxes Etc. franchisees. Known as the Platinum Shield Association, they have claimed that UPS, since acquiring Mail Boxes Etc., has destroyed what was once a growing, stable, and profitable franchise. The former Mail Boxes Etc. franchise owners claim that UPS coerced them into changing from their profitable Mail Boxes Etc. Centers to The UPS Store through a program called "Gold Shield." They also say UPS then tried to destroy the remaining Mail Boxes Etc. franchises that refused to change to The UPS Store by discontinuing national advertising and stopping all support for the Mail Box Etc. franchisees.

Another group of unhappy UPS franchisees is the Brown Shield Association, and they are also litigating against UPS, alleging that UPS has engaged in competition with its own franchisees by offering lower prices to customers who use direct-pickup instead of dropping of packages at local The UPS Stores. Both groups face long fights before their cases will ever see an end. The case led by the Platinum Shield Association started in 2003 and is just at the point of sending out notices to potential members of the class action.

What do you do if you own a franchise and the franchisor sells to another company? Are you obligated to accept changes in your Franchise Agreement? Disputes can be complicated, costly, and take a long time to resolve. If you are purchasing a franchise or you own one already these are issues you might want to find out about by talking to your franchisor and a franchise attorney.

In November 2008, Pepsi introduced its latest and greatest logo. It is blazing forward with its advertising blitz this year with the "Refresh Everything" campaign. The beverage company is pulling all the stops to improve its market share and overtake Coca-Cola.

When originally launched, many people commented that the new logo looked an awful lot like President Obama's campaign emblem. Talk about getting off on the wrong foot! Instead of attracting new people to the brand, the new symbol was already seen as a rip-off. I'd say the more troubling issue is that Pepsi had such a strong logo, that is easily recognized and identified around the world. Why look like an imposter? And why spend the time, money, and energy to re-educate the consuming public?

Not surprisingly, Pepsi owns Tropicana, whose recently introduced new logo was widely panned despite a $35 million dollar investment! Seems to me that a ton of money was spent in both instances for marginal aesthetic gain. Pepsi would do well to invest its resources more judiciously--it appears to be grasping at straws to catch up to Coke!

Do you think Pepsi's rebranding was worth it? Please post your comments or contact me to discuss!

You may have noticed this fashion ad posted on internet news sites or broadcasted on entertainment TV shows. The image of the incredibly thin model is central not only to an ongoing self-esteem and body image debate in the fashion world, but also to the issues of copyright infringement and fair use in the intellectual property law world.

The battle began when internet websites, Photoshop Disasters and Boing Boing, reproduced the admittedly altered Ralph Lauren ad. Boing Boing also included a caption commenting on the model's unrealistic dimensions. Ralph Lauren filed a Digital Millennium Copyright Act (DMCA) complaint, alleging that the reproduction of the image amounted to copyright infringement and did not fall within fair use, which permits the copying of protected works for the purpose of parody and critical commentary. Photoshop Disasters removed the airbrushed photo, while Boing Boing stood its ground. The editor of Boing Boing issued a razor-sharp response, warning that future attempts to "silence their criticism" will be met with "copious mockery." In light of Boing Boing taking the offense, many organizations have shown their support for Photoshop Disasters and Boing Boing in what appears to be a victory for Fair Use and freedom of speech.

If you have any questions concerning whether or not the reproduction of a work is fair use, consult with an experienced copyright attorney.

Aside from being known for its innovative search algorithm, bird's eye view maps, and expansive email in box storage capacity, Google has also gained renown for uniquely celebrating historical dates and holidays. The site's homepage usually features an altered Google logo to remind people of the special event. Most recently, the search engine paid homage to the 57th anniversary of the first barcode, which was invented around October 1949 and received a patent on October 7, 1952. Unlike the vertical lined specimen featured on Google, the first barcode was circular and resembled a bull's-eye.

When Google unveiled its encoded logo, some internet bloggers initially suspected a brainwashing conspiracy. However, others have confirmed the image is merely an innocent bar code translation of the website's name.

The emergence of this technology has streamlined many areas of our lives. The bar code established a standard medium for transferring information quickly and efficiently. For example, a retail store can keep track of merchandise inventory and prices through the use of bar codes and scanners. When you inquire about the price and stock quantity of a particular item, the clerk can provide you a fast and accurate answer by simply scanning the barcode.

Companies spend millions of dollars enlisting branding firms to revitalize logos they have deemed old and tired. Potential gains include rejuvenating your brand's image, building up new good will among consumers and redefining your place in the market. On the flip side, a perfectly good brand may be tarnished by a questionable makeover.

Major players like Pepsi, Walmart, and UPS all have put their logos under the knife in recent years. It's definitely a balancing act as these businesses have to take care to maintain enough of a connection between the old and new images while modernizing their respective logos to stay fresh.

Also, think of the consumer--with familiarity comes comfort. When updating a logo, will your followers continue to be loyal? How many will turn up their noses at the changes? And for those who never liked to brand anyway, overcoming their existing bias is a gamble.

Notable rebranding misses of late include Kraft, Tropicana and Xerox. A common flaw to all of these redesigns is that they risked the unique qualities of the original in the name of "progress." A company must consider the reaction of its existing customer base as well as that of the new one it wants to bring in!

In the next segment, I'll compare the old and new looks for Pepsi! Stay tuned…

Oprah Winfrey and Dr. Mehmet Oz are suing over 50 small beauty product and dietary supplement companies across the country, claiming that the businesses falsely professed that the TV personality and her recurring talk show health expert endorsed their merchandise.

Among Oprah's list of grievances are consumer fraud and unauthorized use of names, likenesses, and trademarks. Many of the defendant companies appear to be fly-by-night outfits, running credit card scams. The victims are unsuspecting buyers of their vitamins, anti-cellulite and anti-wrinkle creams, and tooth-whitening products. Oprah is incensed that her reputation was purportedly tied to these questionable organizations.

The clout Oprah has today is mind-boggling, but not surprising! People will run out and buy anything if it gets a thumbs-up from her. The same goes for any powerful or famous person. To think that these companies would misrepresent the facts just to capitalize on her sphere of influence is a testament to Oprah's power in the market. While we could argue that a little more caution from viewers in making purchases couldn't hurt, trademark laws exist to protect consumers from being confused as to who endorses which products.

Ensure that your name isn't associated with sketchy characters! Contact a trademark attorney for protection!

The time it takes to get a patent approved by the United States Patent and Trademark Office is getting longer and longer. The average wait for a first response from the USPTO to a patent application is now more than 2 years. From start to issue, the current average time lag is nearly 3 years!

The USPTO has over 1.2 million patent applications pending and received about 497,000 new applications in 2008. As I discussed in a previous entry, there is something of a budgetary crisis going on at the USPTO right now and unfortunately the agency simply does not have enough resources to dedicate to the examination and review of patent applications at this point. Unfortunately, the current economic situation has forced many governmental agencies to tighten their belts, meaning processing gets delayed, and the public has to wait longer and longer. Inventors are no exception.

What does this mean for your invention? It has become difficult to predict the time frame in which a patent may be issued, and this uncertainty may adversely affect your ability to secure investors and bring in new capital to your firm based on near-future intellectual property rights. Furthermore, infringers may come out of the woodworks while your patent is being processed. The best course of action is to apply early and get the ball rolling ASAP! Issued patents give cease and desist letters a lot more teeth when asking an infringer to stop.

Contact a patent attorney to get started right away with the patent process!

In a surprising new trend, investment firms and new businesses are gobbling up a new kind of capital. They are seeking to buy, sell, and license patents via auctions. Under such a system, inventors make their patents available for sale and transfer all or part of their rights to the highest bidder.

The potential benefits of this emerging market that are being touted by analysts include increased innovation, reallocation of costs, and a reduction in patent litigation. In our capitalist society, we are told that market forces will naturally determine the value of a specific product and thereby encourage entry into that field. We can expect patent auctioning to grow rapidly but we are a long way off from seeing patents up on eBay.

While I believe in the alienability of patent rights and freedom of contract, I think both inventors and investors alike should be wary of jumping in headfirst without carrying out proper due diligence. We've seen unbridled trading of nontraditional assets before in the mortgage industry and it played a big role in the recent economic crisis here in the U.S.!

Contact a comprehensive patent attorney and consult with a business development expert to gauge the worth of your invention!

If you are thinking about registering a company trademark under an alternate domain name, think again. The American Automobile Association (AAA) recently sued James Van Johns, a Pennsylvania resident, for violating federal cybersquatting laws. According to the Anticybersquatting Consumer Protection Act, a trademark holder can sue anyone who registers or uses a domain name that may confuse consumers or mislead them into believing the website is endorsed by the mark holder.

Van Johns had registered the website AAA.net which appeared similar to AAA's website, AAA.com. This would have likely confused consumers trying to connect with AAA, especially since Van John's site featured advertisements for AAA's competitors.

Fortunately, the parties were able to settle and each side paid their own legal fees. As a result of the settlement, Van Johns had to release AAA.net to AAA without any payment. He is further prohibited from registering any other web addresses similar to AAA.

Marvel Entertainment and Disney may lose some of the rights to characters and stories involving the Fantastic Four and X-Men come 2014. The children of the Jack Kirby, the late artist of several comic books, have given the entertainment giant notice of their intention to recapture the copyrights to the characters conceived by Mr. Kirby.

There is precedent here: in a similar action, the heirs of Jerry Siegel, the creator of Superman, successfully regained some of the rights to the character's origin from Time Warner. This could potentially be a large blow to Disney, which recently acquired Marvel for $4 billion dollars.

The U.S. Copyright Act enables creators to end old copyright grants after a lengthy waiting period and revert them back to themselves. I think artists should be fairly rewarded for their creations, but I also believe in honoring one's commitments. Here it would be ideal if the heirs can work out some agreement by which they are justly compensated but Marvel and Disney retain the ability to use the characters!

Shelden Kaplan, longtime engineer and innovator, passed away September 21, 2009 from complications resulting from liver cancer. At the fore of Mr. Kaplan's many accomplishments are the creations of the ComboPen, and EpiPen, respectively.

The ComboPen is used by the military to treat soldiers poisoned by nerve agents. The EpiPen is a later derivative that contains epinephrine and serves to save people with lethal allergies. Millions upon millions of people have acquired prescriptions for EpiPens, and innumerable deaths have undoubtedly been prevented by the device.

What's amazing about Mr. Kaplan is that he never received any profits, amassed any royalties, or garnered any fame from his invention. I think it's remarkable that someone would toil away on such a salubrious technology in complete anonymity!

Amazon has taken it upon itself to break into customers' Kindles and surreptitiously erase copies of Nineteen Eighty-Four by George Orwell that it has deemed illegally obtained. Kindles are wireless reading devices sold by Amazon that store and display e-books and other digital information.

Amazon did not get permission from users to remove data but unilaterally made the decision to invade users' collective privacy. Once media is recorded on someone's personal device, it is effectively personal property and generally cannot be taken without a court order. What Amazon did is tantamount to vigilante justice.

Individuals' personal electronics are their own and their contents must be respected! I would be furious if a company skulked into my digital space and took what was rightfully mine! Furthermore, if these allegations are true, controversy could open up a whole can of censorship and/or freedom of speech worms. In the event of illicit activity, there are proper judicial channels and legal remedies available to those that have been truly wronged.

Consult an intellectual property attorney to properly enforce your copyrights!

Louis Vuitton, the high-end fashion retailer, has been awarded $32.4 million dollars in its trademark and copyright infringement case against Akanoc Solutions, Inc., and Managed Solutions, Inc., a pair of website hosting companies. The case, Louis Vuitton Malletier v. Akanoc Solutions, Inc. et al., was held in the U.S. District Court for the Northern District of California and a jury rendered the verdict.

What's unique about this case is that the defendants did not commit any direct violations themselves, but hosted sites that sold Louis Vuitton knock-offs. Contributory trademark infringement is a legal theory wherein a defendant may be liable for assisting trademark infringement or having control over others who directly infringe.

In order to be held accountable for the acts of others, the defendant must know or should have known that another's conduct constitutes infringement and the defendant must give substantial assistance or encouragement to those that directly infringe. I think it's fair that secondary actors and entities that enable infringement are liable for either actively helping infringers or looking the other way!

Want to keep your trademark safe from any type of infringer? A trademark lawyer can preserve the strength of your brand!

An upcoming case, Ride the Ducks v. Bay Quackers, is set to highlight the importance of sound marks, an often overlooked, but key concept of trademark law. A Georgia tour company called Ride the Ducks is suing Bay Quackers, a San Francisco tour company, claiming that the latter distributes kazoos that produce a quacking sound that is identical to the one made by Ride the Ducks' Wacky Quacker noisemaker.

While this may seem somewhat ridiculous, a sound can establish a link in a listener's mind, creating a mental association with a particular business. To qualify for registration, a sound mark must be source identifying and must either be inherently distinctive or have acquired distinctiveness. Famous sound marks include NBC's chimes, the Pillsbury Doughboy's giggle, AOL's "You've got mail" alert, and MGM's lion's roar.

In addition, colors, 3D marks, graphics, scents, and other non-drawing formats also may be eligible for trademark registration. You work tirelessly to carefully sculpt your brand image and amass goodwill. It's critical to employ both common and unorthodox IP protection to uphold your company's reputation!

A trademark attorney can help you craft a personal IP game plan!

Is it actually true that a franchise was terminated over one under-portioned sandwich? In a case that was finally decided at the start of this year, it appears that was exactly what happened to a Pennsylvania couple—owners of a Quiznos franchise. They were terminated after a secret shopper purchased a Prime Rib Philly Cheesesteak sandwich at their Quiznos store.

In 2006, as part of a national advertising campaign being planned by Quiznos in which Quiznos planned to claim its sandwich contained twice as much meat as Subway's comparable sandwich, Quiznos sent out secret shoppers to several of its franchisee locations to purchase Quiznos' Prime Rib Philly Cheesesteak sandwiches. The purpose was to make sure each sandwich contained at least 4.5 ounces of meat. A secret shopper at the Pennsylvania franchisee's store purchased a sandwich that purportedly only had 4 ounces of meat. Quiznos sent out a letter terminating the franchisee. Although Quiznos claimed their plan was to allow the franchisee to cure the default, Quiznos sued the franchisee only two days after sending them the termination letter. In January, the franchisee won their case for wrongful termination, being awarded $349,797.00, plus fees, court costs, and post judgment interest.

It can be intimidating for a single franchisee to contemplate going to court with their franchisor, especially if the franchisor is large, but franchisees need to remember, the courts are not looking at the size of the litigate they are looking at the strength of the litigant's case. If a franchisor has terminated a franchisee in violation of the terms of the franchise agreement, then a single franchisee should not be afraid just because of their size to do what is necessary to protect their investment.

Businesses know it is important to protect their trademarks from infringement. If they do not protect their marks, they could lose their exclusive right to use the marks. Some businesses are more aggressive than others in protecting their marks. McDonald's aggressively protects their trademarks. They have filed several lawsuits over the years, attempting to protect the "Mc" term in restaurant and food product use. The key factors in trademark infringement cases are whether the use of a similar mark will cause consumer confusion as to the source of the goods or services or is deceptive in some way.

In the latest installment of the "Mc" lawsuits, a Singapore restaurant franchise has finally won a trademark infringement case brought against it by the international franchise giant McDonald's. The lawsuit started in 2001, when McDonald's sued Malaysian Chicken Curry, which advertises itself as McCurry, for trademark infringement for the use of the term "Mc". McDonald's claims exclusive right of the "Mc" term in restaurant and food product advertising. The Malaysian Chicken Curry restaurant started in 1999 and serves Malaysian style cuisine. The restaurant is named after one of its popular dishes, Malaysian Chicken Curry. McCurry lost the case at the trial level, but after appeals, the court ruled in favor of McCurry.

While McCurry must be happy with their result, this finding will have dramatic effects on the strength of McDonalds' "Mc" designation in Malaysia. Will there be a snowball effect if other countries follow in the High Court of Malaysia's footsteps? Do you think the American court system would have come to a conclusion different from its Malaysian counterpart? Do you think sometimes businesses go too far in trying to protect their trademarks? There are so many possibilities--let's discuss!

Dispute resolution is an important term in a franchise agreement. Franchise agreements can have forum selection clauses, arbitration clauses, and choice of law clauses, among other dispute resolution options. When Congress passed the Federal Arbitration Act, it brought the use of arbitration onto equal footing as other dispute resolutions options and the traditional venue of the courts. Not long thereafter, arbitration came to national prominence and became a popular option for franchisors to use in their franchise agreements.

Current research has shown that over the last ten years, the number of arbitration clauses in franchise agreements has remained relatively stable (in a little less than half of the franchise agreements). Today, some groups want to eliminate required arbitration clauses in franchise agreements. Currently, there is a bill in Congress: the Arbitration Fairness Act. One provision of the Arbitration Fairness Act would make mandatory arbitration clauses illegal in franchise agreements. This act is opposed by the International Franchise Association. Some franchisors, however, are moving away from arbitration clauses by their own choice; for example, General Nutrition Centers Inc. has quit using arbitration clauses in their franchise agreements.

If you are a franchisor, whether or not to use an arbitration clause is a matter of weighing a number of factors. Sometimes a choice of forum and choice of law provision may be the better option. These decisions are best made with the assistance of a franchise attorney. If you are a franchisee, have an attorney review the franchise agreement before you sign the agreement or renew your franchise agreement.

When it comes to opening a new franchise, prospective franchisees face many issues, but one issue that often ends up in court when franchise relationships fall apart is territory disputes—typically the argument is that there was territory encroachment. Territory encroachment and territorial concerns come in many ways, such as: requirements to develop the territory to a specific level of profitability in a certain amount of time, whether the franchisee has the right of first refusal to develop territory bordering the franchisee's existing territory, factors that might change the nature of the territory (i.e. population, development), and how 'exclusive territory' is determined (i.e. by population, geography, number of customers).

When contemplating purchasing a franchise it is important that franchisees look closely at whether the territory is exclusive and under what circumstances the territory—even exclusive territory—may be encroached upon. There are many ways franchise territories may be encroached upon. For instance, a salon franchisee may be given an exclusive territory and licensed to sell the franchisor salon's particular shampoo product, but then the franchisor salon may sell that same shampoo product in a local grocery store. Obviously, the franchisee could lose business and money by such an arrangement; even though, the franchisor never opened a competing salon in the franchisee's exclusive territory.

Because there are many such concerns with regard to territory, if you are interested in opening a franchise or are already in the franchise business, you should review any Franchise Agreement and Franchise Disclosure Documents with an attorney familiar with franchise law. Have you ever experienced a territorial issue with your franchise or business, feel free to comment or share your experience?

Florida businesses, take heed: you must give the public notice of your fictitious name! Here is the notice on the Florida Department of State's home page:

NEW LAW! Effective July 1, 2009, the intention to register a fictitious name must be advertised at least once in a newspaper in the county in which the principal place of business will be located. Contact your newspaper for advertising information.

What does this mean? As of July 1, 2009, you will be required to advertise your intent to register your Fictitious Name. Under the Fictitious Name Act (F.S. Title 46 Ch. 865.09), all persons transacting business under any name other than their legal name is required to register this fictitious name. However, actively licensed attorneys and those persons licensed by the Department of Business and Professional Regulation and the Department of Health are not subject to this requirement if it is for the purpose of practicing their licensed profession. Also, any commercial entity, corporation, partnership that is actively registered with the Department of State is exempt from registration under the Fictitious Name Act.

Complying with the new law is easy. A person wishing to register a Fictitious Name need only to advertise the intention to register the name in a newspaper at least once in the county where the principle place of business of the applicant will be located. No proof of advertisement is necessary; the applicant will only be ask to certify that he or she has complied with the advertisement requirement. The applicant can then register the Fictitious Name and pay the registration fees online at www.sunbiz.org. Registration is valid for five years unless the business changes owners or the owner wishes to cancel the registration. Re-registrations, Cancellations and Renewals cannot be filed online; the forms must be filed by mailing them along with the appropriate fees to the Division of Corporations.

Failure to comply with the registration requirement is a misdemeanor of the second degree and is punishable as such (F.S Title 46 Ch. 775.082 or 775.083). Additionally, if a business fails to comply with registration, the business, its members, and those interested in doing such business may not maintain any action, suit, or proceeding in any court in Florida arising out of the transaction of business by such a business until they have complied with the registration requirement. Further questions can be answered by attorneys familiar with Florida business law.

To succeed, a franchise must identify a need in the marketplace, and fill that need. Particularly in today's economy, finding a niche can mean the difference between downsizing, maintaining, or growing your business.

Franchises that find that niche can be successful even in otherwise languishing industries. Here is sampling of a few franchises that have found their niche:

1) The dry cleaning business has been around for decades without seeing any franchises experiencing significant growth. However, Certified Resotration Dry Cleaning Network has found its niche by focusing on dry cleaning clothing and household items damaged by smoke for insurance companies.

2) Rescuecom's niche is providing onsite emergency computer repair 24 hours a day 7 days a week.

3) Finally, many fitness centers are now transitioning away from the do-it-all exercise and work out centers to smaller specialized fitness centers targeting specific clientele such as women or men only or specific workouts like aerobics or weightlifting.

The great thing about finding a niche is that it does not cost money; it just takes a little instinct and a lot of thought. If your business is struggling in these hard times, see if there is a niche you have been missing that could open the doors to some additional revenue.

As I've been watching the changes in the in-home movie rental business and the continuing decline of the Blockbuster chain, I began to think about how critical it is for franchisors and potential franchisees to try to imagine what their particular field of business is going to look like in ten years. Franchising provides a great opportunity to own a business without having to invest a lot of money, but beware! Purchasing almost any franchise is still an investment and most franchise agreements are binding for at least ten years. The last thing you want is to invest in a franchise, only to have that industry becoming obsolete in a few years.

To use home the in-home movie rental business as an example, look at the changes that have occurred over the last ten years—VHS and VCR movies have become antiquated. DVRs (digital video recorders) like Tivo record several hours' worth of television, in HD, and allow rewinding or slow motion replay of live programming. And at my whim, I can order a recently released movie On Demand, for little or no cost.

Technology's evolution is not the only change that has occurred in the in-home movie rental business. As our society gets even faster paced, people have become much more conscious about saving time, and have become master multi-taskers. People want to eliminate excess trips to the store; if they can make one trip to buy their groceries, prescriptions, and movies, they are going to do it. Thus, we have seen a steady decline in Blockbuster franchises and an explosive growth in Netflix and Redbox kiosks.

So how would you evaluate the success or decline of a franchise? First, do some research and consult with a business expert to help you carefully consider how changes in technology or society might affect your industry of interest in both the short- and long-term. I team up with the franchise experts, Alpha Growth Strategies, and encourage my clients to consult with them. Second, bring a franchise attorney a copy of the business' Franchise Disclosure Document. The attorney can explain what your rights and obligations will be for the term of your Franchise Agreement.

Franchisors and franchisees must protect the trademarks and service marks that identify their services or goods, but they also must be careful not to infringe upon other's trademarks or service marks. Litigation can be costly, and whether you win or lose, a lawsuit could potentially bankrupt your business.

One such example of a franchise having to litigate a case is Paris Hilton's lawsuit against Hallmark Cards. The dispute is over the use of a likeness of Paris Hilton's head and the slogan "THAT'S HOT." This phrase was the topic of a previous Celebrity Trademark spotlight I did, featuring the scrawny blonde drama queen's trademark application, which is still pending with the USPTO. Hallmark Cards used the likeness and slogan on a card sold in its franchise stores. Paris Hilton has trademarked the slogan she made popular in the television show, "The Simple Life". The case is has not been finally decided; however, Hallmark Cards recently lost its appeal for dismissal. The 9th Circuit Court of Appeals has remanded the case to the trial court so the disputed issues can be decided.

The whole purpose of trademarks and service marks is to give businesses something to uniquely identify their services or goods. Obviously, you want to use your franchise's trademarks and service marks as often as possible for branding purposes; however, when preparing advertising or marketing material for your franchise, it might be a good idea to consult with an attorney to make sure any likenesses or images used are not already protected.

The Electronic Frontier Foundation has asked the United States Copyright Office to grant an exemption to the Digital Millennium Copyright Act so that iPhone users may load outside programs onto their phones. Circumventing a manufacturer's software is referred to as "jailbreaking" and Apple says that an allowance of it could lead to devastating hacker attacks.

What are some of the potential results spelled out by Apple? Cell tower crashes from improper external commands, signal disruption, privacy concerns, exposure to viruses, increased piracy, and the spreading pornography to children. Quite the doomsday prediction!

I think that Apple should strive to protect its technology without resorting to scare tactics and sensationalism. To me, brazenly touting fatal consequences that are remotely possible undermines its credibility. Apple should make its case based on its legitimate IP rights, not on public fear.

Do you think that this forecast is realistic? Please post your comments.

Amidst a slew of franchise disputes between deposed dealers and General Motors and Chrysler, Ron Bloom, head of the automotive task force for President Obama, addressed Congress and advised that the reinstatement of terminated franchise agreements could jeopardize the car companies' return to profitability.

As discussed in a previous post, GM is planning to shut down over 2,000 of its dealerships and Chrysler is looking at eliminating 789 of its own. However, a bill was recently approved by the House of Representatives to undo those cutbacks. Some dealers are even resorting to franchise suits in state courts to prevent forced closings. Mr. Bloom indicated that the reductions are critical to streamline the operations of the two troubled automakers.

Sadly, I think that the dealership closings may be necessary at this stage, but the blame lies squarely on the shoulders of GM and Chrysler for allowing their networks to become bloated and saturating markets with dealers as opposed to employing the controlled outlet strategy of import car manufacturers. It's a shame that hard-working business owners are having their stores taken from them through no fault of their own. Their collective mistake was betting on the wrong horse!

David Kappos, nominated to become the next Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, addressed the Senate Judiciary Committee on July 29 as part of his confirmation hearing. As I had mentioned in an earlier post, Mr. Kappos previously served as IBM's vice-president and assistant general counsel for intellectual property.

Among other things, Mr. Kappos vowed to root out counterfeiting and piracy, highlighted his plethora of qualifications, and tackled questions about potential conflicts of interest with regard to future IBM patents. He intends to pursue an international anti-piracy strategy, working in conjunction with many foreign governments, particularly those in Asia. Many senators reacted favorably to Mr. Kappos and his confirmation appears to be imminent. The panel is expected to vote on Kappos in early August.

Mr. Kappos' resume certainly is impeccable, and he seems to be saying all the right things about his upcoming position. His plate will definitely be full as budget concerns at the USPTO loom over all policy decisions. I only hope that his ambitions aren't just pipe dreams and that concrete actions will be taken to make good on his promises!

An inventor named Paul Pantone has discovered a way to use Mountain Dew to help power cars. Mr. Pantone has developed the Global Environmental Energy Technology Fuel Processor which is a system that can be retrofitted onto existing internal combustion engines and enables them to run on a mixture that's up to 80% water. Check out the details of his apparatus in this YouTube video.

Interestingly, Mr. Pantone alleges that he worked on GEET for 25 years until he was framed for securities fraud and committed to a mental ward by seedy businessmen. Supposedly this was retaliation for Mr. Pantone's refusal to sell his patent. Mr. Pantone goes on to contend that by using GEET, greenhouse gases and emissions from a single car can be reduced by up to 90%!

The jury's still out regarding the efficacy of GEET as no independent verifications of Mr. Pantone's claims have been done. Still, the fact that he was issued a patent gives him some measure of credibility. Even if the technology and Mr. Pantone's history seem somewhat far-fetched, you have to admire his creative spirit!

This is my first blog entry that incorporates video. How did you enjoy it? Is it user-friendly enough? Does it keep your interest better? I need feedback! Please chime in.

Judge Sotomayor's career in the judicial system has spanned 30 years and she has ruled on both ends of the spectrum, issuing favorable judgements to both plaintiffs and defendants in IP matters.

In 1997, in Castle Rock Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132 (2d Cir. 1998), Judge Sotomayor held that a trivia book based on Seinfeld, called The Seinfeld Aptitude Test, violated various copyrights. She also found in favor of licensees of the rights to The Three Stooges in an action to protect their property.

However, in another major case, Tasini v. New York Times et al., 533 U.S. 483 (2001), Judge Sotomayor ruled against a number of freelance journalists claiming that major news outlets had improperly duplicated their work and displayed it on databases like LexisNexis without permission and in violation of copyright laws. Judge Sotomayor opined that these news organizations were in compliance with the Copyright Act of 1976. Ironically, the U.S. Supreme Court ultimately struck down her ruling!

Despite the variation in her decisions, I am glad that there will be a judge on the U.S. Supreme Court with some IP savvy to tackle what is sure to be a huge slate of cases involving new technology.

How do you feel about Judge Sotomayor's qualifications? How do you think her background will affect the Supreme Court's decisions? Please post your comments or contact me to discuss!

Judge Sonia Sotomayor was confirmed by the United States Senate on August 6 and will be sworn in as a member of the U.S. Supreme Court on August 8. Despite coming under fire from a variety of Republican opponents, Judge Sotomayor was voted in by a 68-31 tally.

Judge Sotomayor was a highly-decorated intellectual property attorney in private practice, and served as a partner in a Manhattan law firm prior to her tenure as a judge. She has relevant experience in cyberlaw and appears to be a quantum leap over Judge David Souter, the technologically-challenged Justice she is replacing.

Judge Sotomayor has impeccable credentials from her college years through her time on the bench. Her dedication and enthusiasm are striking: while doing trademark work for Louis Vuitton, she routinely took to the streets in a bulletproof vest and tracked down people peddling fake Louis Vuitton purses!

I admire Judge Sotomayor for her remarkable experiences and, being an intellectual property attorney myself, share her passion for clients! Up next, I'll go through some of her past history with IP cases.

More than ever, American franchises are contemplating foreign expansion as possibilities in the United States remain stagnant. The two most populous nations in the world, China and India, are key areas for growth and feature rapidly-flourishing intermediate consumer bases.

McDonald's has long been exemplary in terms of its global franchise model. In 2009, McDonald's opened just 53 new restaurants in the U.S., whereas internationally, it opened 286 new locations. This isn't simply an aberration, but has been the trend for the last couple of years. Meanwhile, McDonald's global sales have jumped 7.2%!

The reluctance of U.S. lenders to issue loans has hurt American franchising, but abroad, third-party investors are frequently willing to back projects financially. This becomes a mutually advantageous relationship as foreign investors reap the benefits of well-established, clearly defined American brands. People instantly recognize those double arches! In light of such symbiosis, international markets are ripe for development and can support sustainable growth.

How can your business grow in these challenging economic times? Want more tips and strategies? I do too. That's why I count on my business and franchising experts, Alpha Growth Strategies. I work closely with them to give my clients the edge in business development.

Reading through the news today it seems restaurant franchises are willing to do just about anything right now to get customers in the doors. The major hamburger franchises have always offered toys and collectable glasses to purchasers of certain meals. Additionally, some of the larger franchises conduct games annually, or almost annually, where customers can win high dollar prizes, including cash—think McDonald's® Monopoly® game. Kentucky Fried Chicken just unveiled a new sandwich with no bun! Yes, I said no bun. Other Franchises such as Tropical Smoothie Cafés and CiCi's Pizza are offering customers the chance to win VIP trips to Hollywood studios and Pizza parties where families can get coupon books.

Not every business has the financial resources like McDonalds® or other larger franchises. So what does a smaller franchise or business with more limited resources do to get the customers to their stores? I think one thing franchises can do is focus on their core customers. Offer a specific gimmick that would appeal to this unique group. Another strategy is joint advertising promotions. This means teaming up with a complementary business, and develop a promotion to benefit both businesses.

What kind of approaches are you using to maintain and grow your business or franchise in our current economic times? Are they working? Please, feel free to share.

Competitors to Google are working feverishly to invalidate or delay a settlement agreement between Google and numerous authors and publishers that would avoid copyright infringement litigation over the digitization of literary works for the Google Books platform.

Google Books is a digital book system which scans in books, converts them into text, and makes them available and searchable online. Authors and publishers sued Google for unauthorized use of copyrighted materials. In October 2008, Google and the complainants came to an agreement that would allow Google Books to continue development.

The settlement has not been approved yet and raises antitrust issues into which the United States Department of Justice is launching an investigation. Companies like Microsoft, Amazon, and Yahoo are banding together to fight the deal as they claim that it unfairly insulates Google from liability for violating copyrights.

I think that if Google freely contracts with the authors and publishers, then it should be honored. The other tech businesses should draft their own agreements to secure the same rights instead of whining about Google! What do you think? Please post your comments!

The United States Patent and Trademark Office is shifting toward full electronic patent application processing with a program called e-Office Action. After successfully testing it with a pilot project, the USPTO is moving forward with plans to implement the e-Office Action program.

Once the new program is in place, applicants will receive notices from the USPTO in e-mail form, alerting them to view new correspondence through the Private PAIR retrieval system on the USPTO website. This system obviates the need for paper mailings and is intended to streamline patent prosecution by getting information to applicants much faster.

Any registered patent attorney or agent is eligible to participate in the e-Office Action program and may submit provisional and non-provisional applications including utility, plant, design, reissue applications, and national stage applications.

I have been filing my clients' trademark applications with the USPTO for some time now, using an electronic system, similar to this procedure. Work is submitted instantaneously--truly an attorney's dream!

KB Toys, longtime vendor of children's toys, regrettably has filed for bankruptcy and is currently liquidating its assets in order to satisfy its creditors. Among the items up for bid were KB Toys trademark, logos, and domain name as the retailer is shutting down all of its approximately 460 stores.

For a business that began in the 1920s, they have only been using the name, "KB Toys" since 1996, according to their trademark registration, and "Kay-Bee Toys" since 1997, according to another trademark registration.

Those registrations cite a handful of other prior registrations. A trademark is any word, name, symbol, device, or any combination thereof used to identify and distinguish goods. One may last forever, but can expire due to either non-use or loss of distinctiveness. Ownership can arise due to either public use or registration, but registration affords many more advantages when it comes to deterring infringement.

Trademarks are assets. As such, these assets may be transferred or sold by executing an assignment. A retail operator called CE Stores secured the rights to KB Toys' intellectual property for $2.1 million dollars and may capitalize on the good will that KB Toys built up since its inception in 1922.

It's a shame that KB Toys has been forced into a situation where it has to part with the good will of its own intellectual property, isn't it?

Twitter can't seem to catch a break when it comes to trademarks. The United States Patent and Trademark Office has preliminarily denied Twitter's bid to trademark the word "tweet." Twitter appears to have lost the race, not against time to prevent their potential trademark from becoming generic, but against three other companies that filed applications containing the word "tweet."

TweetMarks, Cotweet, and TweetPhoto all submitted trademark applications for their respective names that predate Twitter's filing. What's ironic is that these are all independent sites that were created to piggyback onto Twitter! The USPTO wrote that a trademark on "tweet" would likely cause confusion among consumers as to its source. The goal of a trademark is for the public to be able to unequivocally identify a brand.

Twitter has indicated that it even if the trademark is ultimately registered, it would allow liberal use of "tweet" unless it would be injurious to the company. Now it seems that Twitter will be unable to protect the term at all. No matter what the outcome, millions will still be tweeting, including me!

I can think of other grounds upon which "tweet" would be denied registration. Trademarks should describe a product or service. They cannot be generic nouns, like "milk," "car," or "scissor." I have heard the word used as a noun ("Post a tweet so I'll know what you are doing"). Similarly, trademarks cannot be used as verbs ("Her thumbs are sore from tweeting on her phone"). Thus, trademark registration should only be granted if "tweet" was used as an adjective, as in, "Your tweet micro-blog is always updated," or "Stop sending tweet messages at the dinner table."

I can help you navigate the subtle trademark registration rules. Let me know if you have a question about them.

Even the United States Patent and Trademark Office isn't immune to posthumous Michael Jackson mania. The USPTO has opened a new exhibit in conjunction with the National Inventors Hall of Fame and Museum to commemorate the late Gloved One's contributions to intellectual property.

Catch it while you can! The exhibit is slated to run from July 15 to September 7, has no entry fee, and all are welcome to visit. As I mentioned in an earlier post, Michael Jackson was very savvy when it came to IP and even had his own patent for gravity-defying shoes.

Whether you loved him or hated him, there is no denying the indelible imprint Michael Jackson left. This is exemplified by the many trademarks he left behind, including this one, for his Heal the World Foundation. With all the bizarre news reports swirling about both his life and death, it's nice to focus on some of the positive things he did!

Want to see the exhibit in person? It's located inside the USPTO headquarters at 600 Dulany Street, Alexandria, VA, 22314.

The Volt can run on electricity alone, but requires lots of charging so who knows if such mileage results are remotely attainable for the average driver. The Volt's range on electric-only propulsion is 40 miles when it is completely charged. Theoretically, you could get infinite mileage for as long as the battery pack has enough power.

I think that potential licensees and car buyers should be wary of such lofty projections and also consider the fact that the development time of the Volt was considerably shortened, while the Prius is tried and true and has been around for nearly a decade!

I am skeptical that the quality and reliability of the Volt will be adequate as its creation appears to be a knee-jerk reaction to the giant spike in gas prices. Unless the Volt ends up being bulletproof and achieves insane fuel economy, Toyota will likely be the victor in this fight.

Do you think the Volt will pan out? Please post your comments or contact me to discuss!

Two auto industry titans are duking it out to sell their respective hybrid powertrain technology to other manufacturers and suppliers. Toyota and General Motors, the #1 and #2 carmakers in the world, are approaching competitors to license their slew of patents and other intellectual property to them.

Toyota has long been the preeminent leader in hybrid vehicles, introduced the first-generation of the ubiquitous Prius model with Hybrid Synergy Drive in 2001 and has sold millions upon millions of them. True to form, GM was late to the game and is rushing its plug-in hybrid model to market, the 2010 Chevrolet Volt powered by the Voltec propulsion system.

GM is touting the virtues of the Volt which has garnered preliminary mileage estimates of 230 mpg! At this stage, the 230 mpg claim seems ludicrous, but the Environmental Protection Agency appears to be backing it up.

Do you think 230 mpg is possible? Please post your comments! Up next, I'll discuss why I think we should reserve judgment as to the efficacy of the Volt.

Have you noticed that some brand names include the name of a location to denote where the products originate, while others include a location that is completely unrelated?

You can use a geographical or regional name in your trademark as long as its meets two requirements: the mark cannot be geographically misdescriptive or deceptive. First the term cannot be geographically misdescriptive. This means the mark identifies a location other than the origin of the goods or services. For example, Durango chewing tobacco is completely unrelated to the city of Durango. The product is neither produced or distributed from there.

Second, the mark cannot be deceptive. A mark is deceptive when consumers reasonably believe the goods or services originate from the described area due to that area's reputation. Back to the Durango example, that brand is both misdescriptive and deceptive because the city of Durango does in fact produce similar tobacco products. Therefore, consumers would reasonably infer that the Durango brand also originates from the named city.

On the other hand, misdescriptive terms are permitted if they are not deceptive, meaning consumers will not likely believe goods or services come from that area. For example, the Yukon is a trademark for an SUV. Although the Yukon is also the name of a location, it is not known for manufacturing SUVS. Therefore, consumers are not deceived into making the false connection between the product and the location.

Some of the reparations sought by the plaintiffs in a class-action suit against YouTube, the ubiquitous video sharing website, have been thrown out by a U.S. federal judge. Judge Louis Stanton, of the Southern District of New York, denied a number of plaintiffs' claims for statutory damages.

YouTube is a subsidiary of Google and receives 1.2 billion video views per day. Its level of exposure has soared as amateurs and professionals alike post over 65,000 new videos every day. The clips uploaded run the gamut from home videos to pro sports highlights to news updates.

The judge ruled that statutory damages for all domestic and foreign works that are not timely registered are barred by the Digital Millennium Copyright Act of 1998. He further declared that some of the videos in question were foreign works not governed by U.S. copyright law and therefore punitive damages would not be available for them. This decision appears to have no bearing on several of the other plaintiffs as their works fall under the Copyright Act.

YouTube is by no means out of the woods yet, as another, far more ominous lawsuit has been filed against Google by Viacom, to the tune of $1 billion dollars. At this stage, Google's main defense seems to be that as long as it immediately takes down illegal videos once it becomes aware of a violation, it is in compliance with the Copyright Act.

I, for one, really enjoy YouTube videos and hope that it can find a way to operate within the bounds of copyright law. It would be a shame for such an innovative site to be shut down, so hopefully some sort of licensing agreement or other permission can be secured.

What're your feelings on YouTube? Please post your comments or contact me to discuss!

A federal jury in Minnesota has awarded the Recording Industry Association of America $1.92 million dollars in its copyright infringement case against Jammie Thomas-Rasset, a 32 year-old woman from Brainerd, MN, for allegedly offering 24 songs for download on the Kazaa file-sharing platform.

Approximately 35,000 people have been threatened with legal action by the recording industry for illegal downloading, but Rasset's case was the first and only one of its kind to reach trial proceedings. For copyright violations, juries may enter verdicts of up to $150,000 per song pursuant to federal law.

Online music piracy has exploded since the advent of peer-to-peer networking and was popularized on the heels of software such as Napster. According to a 2007 study by the Institute for Policy Innovation, music piracy costs American workers $2.7 billion dollars annually, and 71,060 jobs are lost each year. Piracy divests artists of their rights to their own intellectual property and circumvents the traditional financial compensation structure. Currently, there are myriad channels available for legally acquiring music including iTunes, Zune, and Amazon.

Piracy remains a rampant problem, but the helter-skelter pursuit of individual offenders is not the answer. The recording industry should focus its collective energy on ensuring that P2P networking sites themselves are implementing adequate precautionary measures to deter copyright infringement. Such a strategy would effect a more equitable distribution of liability and prevent individuals from shouldering a disproportionate share.

The Recording Industry Association of America has triumphed over Usenet.com in a copyright infringement case originating in October 2007. The favorable ruling was issued by a federal court in the Southern District of New York, but the exact parameters of the punishment have yet to be determined. They could range from heavy fines to the complete disintegration of Usenet.

Usenet isn't a traditional peer-to-peer networking site, but affords users access to over 120,000 newsgroups enabling them to retrieve files on-demand from a single server hosted by Usenet that draws from stored content on several servers. The RIAA accused Usenet of actively encouraging users to share music illegally via its unusual structure.

This case represents a watershed moment in terms of the RIAA's tactics as it is now pursuing companies that are facilitating piracy instead of tracking down individuals. Furthermore, the RIAA is approaching internet service providers and requesting that they convey RIAA copyright infringement notices to their customers and suspend service for repeat offenders. The RIAA will refrain from taking legal action against the ISPs themselves in exchange for their cooperation.

The RIAA should be focusing on large-scale violations and the entities that make them possible. The RIAA's new outlook makes more than a little sense from both fault-finding and efficiency standpoints. It will be much easier to combat music piracy by going after the big fish.

Do you think this is a better strategy for the RIAA? Please post your comments or contact me to discuss!

The Internal Revenue Service (IRS) of the United States has announced that it will start working closely with foreign governments to more carefully scrutinize corporate tax returns and those of the rich. The move is designed to stop corporations and wealthy individuals from getting away with "tax arbitrage," a term that describes evading taxes in one country by stashing money in another country with more favorable tax laws.

The program is part of a larger initiative to ensure that wealthy individuals and big corporations comply with US tax laws and pay their fair share. So far, the joint audits will only be held with other countries with whom the US has a treaty to do so. The IRS says they will especially be keeping an eye out for abuses of deferral of taxes on earnings abroad. The crackdown has already netted the US some return; after an investigation UBS AG agreed to pay $780 million in owed taxes.

Corporations and the rich have a duty to pay their fair share of taxes. Those that choose not to comply with US tax laws or try to stretch the rules for their own benefit may very well find themselves the target of a very thorough joint IRS / international audit. Find out more about the new IRS program at US IRS to start co audits with other nations.

If you have a business legal matter, please contact Wood, Atter & Wolf, P.A. for legal counsel.

In a recent court case, a Florida woman, identified only as Ms. Meyers, sued her former employer, Central Florida Investments (CFI), claiming that she was sexually harassed by the firm's CEO, David Siegel over a period of five years. During the time that she was allegedly being harassed by Mr. Siegel, he reportedly offered her boyfriend one million dollars in exchange for allowing Mr. Siegel to spend the night with Ms. Meyers.

Ms. Meyers further claimed that Mr. Siegel's harassment included inappropriate touching, whether they were alone together or if there were other employees present. When she complained to other executives, they did nothing to help her, and she was eventually fired in 2000. The jury in the case awarded Ms. Meyers one year's salary in compensatory damages ($102,223), and over five hundred thousand dollars in punitive damages against both Siegel and CFI. The decision was upheld as "reasonable" on appeal. Read more details of the case at Florida Employment Harassment Case "Out of a Bad Movie."

CFI executives' response to Ms. Meyers' allegations put their company at risk. So, what should have happened? Companies should establish a policy for handling complaints of sexual harassment and should ensure that the policy is enforced - from implementing a proper and immediate investigation through remedial action. The accused should be given sufficient detail about the complaint and provided an opportunity to respond. Confidentiality should be maintained to protect both the accuser and the accused from adverse workplace and personal consequences. Executives should ensure that any negative action toward the accuser is reviewed to ensure that it is not done (or could be perceived to be done) in retaliation for bringing the complaint. Employers should also consider whether the investigation should be handled by a qualified outside party to ensure fairness to the accused and the accuser as well as to provide evidence of the company's desire to handle claims of harassment in a fair and timely manner.

If you live in the Jacksonville, Florida or Orlando, Florida area and have been the subject of sexual harassment or are an executive with a company faced with a claim of sexual harassment, please contact our firm, Wood, Atter & Wolf, P.A., for business legal counsel.

In 1999, total revenue in the US from sales and licensing of music was nearly fifteen billion dollars. By the end of 2000, that figure had dropped to just over six billion dollars. In fact, the Recording Industry Association of America (RIAA) has reported a decline in revenue for nine out of the last ten years, making the first decade of the twenty-first century the first decade that music sales were lower at the end of the decade than the beginning.

Of course, the last decade saw two separate recessions, which cannot have helped music sales. And sales during the 1990's were certainly helped a great deal by consumers re-purchasing all of their favorite taped and vinyl music on CDs.

An RIAA representative cited growing pains adjusting to digital music as the reason for the decline, saying that the music industry has been trying to adapt to rapid changes in how consumers buy and listen to music. He went on to admit that the music industry has had trouble monetizing evolving music delivery methods.

Thanks to Napster and other digital file sharing sites, customers now expect to download music from the internet for free or for very little money. So instead of purchasing a complete album of music for fifteen dollars, they can cherry pick songs for one dollar each on Apple's iTunes, or use an unauthorized file sharing site to get music.

According to Forrester Research, only sixty four percent of Americans believe that music is worth paying for. Another study showed that unauthorized file sharing sites still account for 90% of downloaded music. Find out more about the music industry's struggles at Music's lost decade: Sales cut in half.

These statistics reflect the current difficulties faced by artists trying to protect their interests due to constant advances in music delivery systems, however, as a starting point, musicians and songwriters must also take the first and most basic step of protection – filing a copyright on their "creation" at the outset.

If you live in the Jacksonville, Florida or Orlando, Florida area and need to have a copyright on your music or believe your copyright has been infringed, please contact our firm Wood, Atter & Wolf, P.A., for business legal counsel.

NASA chief Charles Bolden has announced that he will actively try to attract commercial space operators to Cape Canaveral. The so-called "space taxis" would be able to take advantage of the processing and launch facilities already in place in Florida's Kennedy Space Center. Bolden said his pitch to the commercial enterprises would be that they could save money and time by using existing infrastructure instead of building their own. He also indicated that NASA would help commercial operators modify existing infrastructure for their needs.

Kennedy Space Center director, Robert Cabana, has already said that NASA will begin upgrading its existing facilities in order to attract a private space company. The Constellation Moon project was originally slated to use the center's vehicle assembly building, hangars, and cargo bays, but the new budget constraints have prompted NASA to cut the program, leaving those assets unused. The same budget is allowing NASA to spend two billion dollars over five years to modernize the facilities.

The announcement may be good news for Florida workers employed at the space center, who were likely to lose their jobs when the space shuttle program is retired later this year. It will also be good for Florida's economy to attract large businesses to the area. Find out more about this story at Bolden: Florida should be home of private spaceflight.

If you live in the Jacksonville, Florida or Orlando, Florida area and have a business legal matter, please contact our firm, Wood, Atter & Wolf, P.A., for business legal counsel.

Florida horse and dog tracks have had a hard time competing with Seminole Indian casinos. Casinos are still the only place a Florida resident can play traditional blackjack, but the track owners have persuaded the state of Florida to allow them to offer electronic blackjack to their gamblers.

The virtual blackjack game does not feature a real dealer and a green felt table, but it does offer starting bets as low as $3; the Seminole casinos start at a $10 minimum. Another major difference between the two games is the fact that the cards dealt in electronic blackjack are generated completely at random, which convinced the state to consider the games equivalent to slot machines and allow them at racetracks.

The casinos have been criticized for continuing to offer real blackjack, ever since a 2007 pact with Florida Governor Charlie Christ that allowed them to offer blackjack was invalidated by the courts. Florida Attorney General Bill McCollum has gone so far as to request that federal authorities step in to prevent the casinos from offering any so-called "banked" games. The tribe points to the licensing of blackjack at the racetracks as a clear signal that they are allowed to offer blackjack as well. Federal regulators are still looking into the issue.

In the meantime, Florida blackjack players have their choice of the real thing or the electronic version. Find out more about this story at South Florida parimutuels bet on virtual blackjack machines.

In these difficult times even non-traditional businesses such as casinos, racetracks and others in the gaming industry have hurdles to overcome in attracting a dwindling share of the market. Businesses becoming increasingly creative in securing that market share should seek legal advice to ensure that those expanded activities are in compliance with the law.

If you live in the Jacksonville, Florida or Orlando, Florida area and have a business legal matter, please contact our firm, Wood, Atter & Wolf, P.A., for business legal counsel.

A Jacksonville, Florida Circuit Judge was ordered to recuse himself from a foreclosure case brought by Bank of America's Countrywide division against Joseph W. Mines Jr. According to court records, Mines, who is representing himself in the matter, was close to losing his home when he filed a complaint against the Judge, stating that he believed an affiliate of Bank of America had given the judge a favorable loan interest rate that was not available to the general public.

The appeals court in Tallahassee, Florida required the Judge to remove himself from the case, saying that if the allegations were true they would be cause for Mines to fear that he would not receive a fair and impartial hearing. For the sake of all concerned, including the Judge, it is preferable that such matters be heard in an atmosphere free of even a suggestion of partiality. It should be noted that the Appeals Court did not say that the allegations against the Judge were true.

With the high rate of foreclosures in Florida, more cases like this one are bound to show up in the newspapers. Judges and attorneys alike need to be sure that their personal and business dealing are completely above board in order to maintain the public's trust. Read more details about the allegations at Judge in Countrywide Case Removed Over Claim of Discount Loan.

If you live in the Jacksonville, Florida or Orlando, Florida area and have a business legal matter, please contact our firm for business legal counsel.

Los Angeles Superior Court Judge Mitchell Beckloff has agreed that the administrators of late pop star Michael Jackson will receive ten percent of his estate, with the exception of several sizeable assets. The administrators are attorney John Branca music industry executive John McClain. The pair has been administering the estate since June 25th, 2009.

The judge's ruling means that each man will receive five percent of any profits from the estate, not including profits from the "This Is It" movie, released shortly after Jackson's death, nor Jackson's interest in the Sony-ATV music catalog.

To reach his decision, Judge Beckloff discussed the arrangements with attorneys representing both administrators, and the attorneys of Jackson's children and mother, Katherine Jackson. None of the family members raised any objections to the compensation.

Branca and McClain's attorney said that he believes the men will be fairly compensated for their services. Jackson's estate is estimated to be worth $500 million. Attorneys for the family agreed, saying that the percentage compensation will serve as an incentive for the men to work hard to grow the business. Find out more details about the administration of Jackson's estate at Compensation approved for Jackson estate admins.

If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with estate planning, please contact our firm for estate planning legal counsel.

Craig J. Nevius is a Hollywood producer, who collaborated with Farrah Fawcett on a documentary featuring the late actress' battle with cancer. The Fawcett estate recently sued Nevius, claiming that he botched the documentary project and embezzled hundreds of thousands of dollars from the actresses' company, Sweetened By Risk. The suit claims further that Nevius exploited Fawcett and leaked sensitive information to the media about her medical condition.

According to the estate, before NBC was able to air the documentary, called "Farrah's Story," they had to extensively rework the footage for it to be usable. The extra work, which included help from Fawcett's longtime companion, Ryan O'Neal, caused them to almost miss the air date.

Nevius' attorney has claimed that the charges are an attempt to intimidate and injure his client, who brought suit against Fawcett, O'Neal, and another party over the same documentary last year. That case claims that O'Neal and Richard B. Francis, Fawcett's business manager, interfered with Nevius' filming of "Farrah's Story." It is still pending. Francis is also a trustee of Fawcett's estate. Read more about the multiple lawsuits involving Farrah Fawcett's estate at Fawcett estate sues producer.

If you require assistance with estate planning, please contact an estate planning attorney for estate planning legal counsel.

The estate of late pop star Michael Jackson filed suit recently against two California-based organizations that it claims have infringed on its "King of Pop" and "Thriller" trademarks while pretending to be a charitable organization endorsed by Jackson.

This is the first trademark infringement suit filed by the estate since Jackson's death in June of 2009. The Heal the World Foundation and an affiliated corporation called United Fleet were named in the suit, which states that the defendants have registered 6 trademarks and applied for 41 more that could be considered "identical or confusingly similar" to the Michael Jackson estate's trademarks. The suit seeks to both to prevent the defendants from using the trademarks and also asks for the destruction of any infringing products.

Trademarks were developed as a means of protecting the public by making it easy for them to identify the source of a given good. Trademark holders need to be vigilant to prevent their marks from being infringed upon by parties with no rights to the mark. This not only protects their financial interests but helps them maintain their good name with the public.

If you have an unresolved business legal matter, please contact a trademark attorney our firm for expert legal counsel.

Find out more about this story at Michael Jackson Estate Alleges Violations of Trademarks, Rights of Publicity.

Throughout the course of the year, it is important to keep track of documents that you will use to fill out your tax return. Once the tax return is filed, however, how long must you keep those records? If you are audited by the Internal Revenue Service (IRS), you will be required to produce them.

According to the IRS website, the length of time a document should be retained depends on what type of document it is, and what activity it is documenting. In general, it recommends that taxpayers keep supporting tax documentation until the period of limitations on that year's return runs out.

The period of limitations refers to the time during which you may amend your tax return or the IRS may assess additional taxes. Some general guidelines for retaining tax returns and supporting documentations include:

• In general, keep copies of your filed returns indefinitely, for your own records and to help you fill out subsequent year's tax forms

• If you did not owe an additional tax and you have filed properly, keep records for three years

• If you did not report income that you should have reported, filed a fraudulent return, or did not file a return at all, keep the records indefinitely

• If you file a claim for a credit or refund after you filed your original return, keep records for three years from the date the original return was filed

• If you claimed a loss on securities or bad debt, keep records for seven years

• If the records relate to property, keep the documents until the period of limitations expires for the tax year in which you dispose of the property in a taxable disposition

Keep in mind that your insurance company or creditors may require you to retain records longer than the IRS does. Read the IRS article at How long should I keep records?

If you require assistance with tax planning, please contact a tax attorney for legal counsel.

True story: I loved Twitter. Then I hated Twitter. And now I use it only to diversify my online social media portfolio. I mean, the micro-blogging site has even spawned new lingo in the English language! As I just used the term, an update posted on Twitter is referred to as a "tweet."

Consequently, Twitter has submitted a trademark application to the U.S. Patent and Trademark Office for the word "tweet." This process likely will turn into a race against the clock as "tweet" may become genericized before Twitter can fully establish its rights in the term.

A genericized trademark refers to one that has become so prevalent that it comprises the definition for a general class of product or service. Such a trademark no longer carries the specific connotation intended by the applicant but has developed into the generic description itself. Notable examples of genericized trademarks include "cellophane." Companies like Xerox take painstaking efforts to educate the public not to use the word as a verb ("Xerox this memo,") but rather, as an adjective ("Make a Xerox photocopy.")

What this means is that Twitter must actively take measures to inhibit broad usage of "tweet" or else it may effectively forfeit some of its rights in the word. One option is to formally notify users of proper trademark use. I would love to be part of the ad campaign that promotes phrases like, "Send me a tweet micro-blog." It is critical for trademark applicants to maintain the fine balance of popularizing their brands while concurrently preventing genericide so that they may retain their full intellectual property rights in their trademarks.

Are these rules nitpicky? Sure they are! But they all serve a purpose. Want to find out more? Send me a tweet!

Goldman Sachs Group, Inc. is currently doing damage control after learning that one of its former computer programmers, Sergey Aleynikov, allegedly made off with highly sensitive computer code comprising Goldman Sachs' latest trading model. A trading model consists of a series of algorithms that temporally optimize risk. The model dictates investment strategy and transactions are made accordingly. This entire process is referred to as automated trading.

A trading model constitutes key intellectual property and enables investors to make moves more quickly than more traditional means. Automated trading has become more and more popular as it has yielded huge profits for investment banks. Higher levels of speed and volume confer a considerable competitive edge, so banks seek to create models that execute trades as quickly as possible. Million dollar transactions can take place less than a second!

What's surprising about Goldman Sachs' predicament is that the theft was allegedly perpetrated by a programmer, and not a high-level trader. In addition, Aleynikov is accused of stealing actual computer code as opposed to memorizing the platform and drafting a new, copycat version. This indicates that companies must identify potential leaks from every angle and take a variety of precautions.

I wonder if Goldman Sachs had confidentiality agreements with its employees. With rogue former employees like Aleynikov, it may not have made a difference, since he probably doesn't have the assets to compensate Goldman Sachs for their financial losses and business advantages. I also wonder if there were non-compete agreements in place, preventing former employees from running off to work for a competitor, or start their own business. Furthermore, I wonder how much of Goldman Sachs' information could have been protected under trade secret laws, where minimizing the exposure of these secrets to employees would offer them the best protection.

Are you a business whose assets are in intellectual property? Do you have special skills, customer lists, or processes you don't want your competitors to have? An intellectual property lawyer with a strong foundation in business law can help you cover all your bases!

Independent internet radio service providers have struck a deal with the Copyright Royalty Board that will keep them afloat. The internet stations were concerned that astronomical royalties would inflate their costs to the point of sinking their businesses. Some had worried that required royalties could potentially be set at double their total revenue!

Internet radio stations continuously stream music and draw over 42 million American listeners every week. Traditional radio stations have licensing agreements in place which enable them to legally broadcast music and which are paid for by substantial income from advertising.

The contract agreed upon by the parties spans 10 years, expires in 2015, and includes a graduated royalty fee structure whereby artists and record companies receive progressively higher payouts over time which may be tendered in the form of a cut of the stations' profits. The compensation paid will be directly proportional to the popularity of the radio stations.

Some key stations, such as such as Pandora, have yet to join the deal, but it is anticipated that they will soon sign on the dotted line. Such an agreement was critical for internet radio as it needed a plan that would enable it to be financially viable. The industry is still fairly new and in its formative years, so very few independent providers are turning a profit right now. It will take some time before these providers can compete with larger stations that are affiliated with large media conglomerates.

I love internet radio and listen to it practically every day! It has so many more dimensions than regular radio and gives users new ways to mix and match music to suit their individual tastes. I'm glad that some middle ground could be found so that internet radio can go on uninterrupted!

Are you a fan of internet radio? Let me know what you think!

Computer giant International Business Machines, Corp. has been taken to court by MOSAID Technologies, Inc., a Canadian intellectual property development firm, for suspected unlicensed use of MOSAID's technology. It is claimed that IBM manufactured and sold microprocessor and circuit products that use Dynamic Random Access Memory patents belonging to MOSAID. The suit was filed in U.S. District Court in Delaware and alleges six different counts of infringement.

MOSAID has been a trailblazer with respect to DRAM and has enjoyed a virtual monopoly over the DRAM licensing market. MOSAID has agreements in place with Fujitsu, NEC, Toshiba, Hitachi, Mitsubishi Electric, and Oki Semiconductor. Interestingly, MOSAID says that its hand was forced regarding IBM due to stalled talks between the parties regarding possible licensing for the patents in question.

This is not the first time that MOSAID has cried foul; it has filed suits against Samsung, Infineon, and several other companies in the past for similar conduct. Samsung ultimately settled with MOSAID and came away with a five-year license agreement to use MOSAID's inventions.

I think MOSAID is doing the smart thing by actively pursuing companies it feels are infringing upon its patents and ensuring that it is justly compensated for its innovation. Despite the difficult process of initiating litigation against every potential copycat, it is imperative that intellectual property be guarded as fiercely as possible so that your business can reap the hard-earned benefits of its R&D. Patent prosecution can and does pay dividends for decades.

Contact a patent attorney to protect the fruits of your labor for years to come!

 Gap Inc. has inked a new franchise agreement that will yield new Gap stores in Thailand. Armin Systems Limited, a retailer in Thailand, has been designated as licensee and will open the first Gap location in Bangkok in the spring of 2010.

The Gap is the biggest independent retailer and includes the Banana Republic, Old Navy, Piperlime, and Athleta brands. Along with its partners, the Gap has opened 100 Gap franchise stores plus 34 Banana Republic franchise stores in 17 countries. Across North America, Europe, and Japan, the Gap has over 3,100 locations.

Despite this already sizable network, the company is looking to emerging regions to help buoy sales as the recession has curbed spending in the United States. The Gap clearly understands the importance of spreading internationally and getting its name out to more and more areas.

On the other hand, oversaturation of markets also can be a concern so it is crucial for companies to tactically place their locations to provide the widest consumer access possible without any overlap. Remember when you couldn't walk one block without seeing three Starbucks? It was forced to scale back because it had flooded cities with shops! It's definitely a fine tuning act to open new stores without creating too much supply and is one that shouldn't be done without proper advice.

Want to strategically expand your business? A methodical franchise attorney can help you increase your branches the right way!

Several gene research groups have taken legal action against Myriad Genetics & Laboratories, the University of Utah, and the United States Patent and Trademark Office in an ostensible attempt to end human gene patenting in the United States. The suit centers around two human genes with ties to breast and ovarian cancer for which the University was granted seven patents and licensed them to Myriad.

The objective of the plaintiffs appears to be to reverse over 20 years of precedent providing for the allowance of patents on human genes. Thousands of patents have been issued on human genes and a victory for the gene research groups would result in a seismic shift in the legal landscape.

I think that we should carefully scrutinize what we consider to be patentable human gene processes. However, I strongly believe that innovation should be rewarded, and that access to technology should have minimal limits. Researchers should be fairly compensated for their efforts and the public should also enjoy the benefits of progress.

Eliminating the potential for patents altogether would remove a considerable incentive for entities to invest R&D money into exploratory projects, and ironically may prevent breakthroughs from occurring in the first place. On the other hand, it is important to ensure that people aren't excluded from the use of new gene technology to the point that public health suffers. For that reason, it is critical that both advancement and access are maximized!

Do you think human genes should be patentable? Please post your comments or contact me to discuss!

Ever since he suffered an accident as a baby, Sam Genensky was classified as legally blind, having about 20/1000 vision in the only one of his eyes that worked. Despite this difficulty, Dr. Genensky became a pioneer of low vision improvement and designed a system called Randsight that magnifies text 31 times its original size and displays it on a video screen.

Dr. Genensky broke the chains of his poor eyesight and went on to graduate with honors from Brown University, earn a PhD in mathematics, and work as a mathematician for RAND Corp. for many years. It was during his time at RAND that he was able to make his stunning breakthrough.

Dr. Genensky's penchant for innovation started at an early age; in high school he altered a pair of his father's binoculars from World War I to help him read the blackboard in class. It's no wonder that he was able to create technology to help similarly-situated people. Dr. Genensky said that Randsight enabled him to read 130 words per minute!

I think it's simply amazing that a man with such a disadvantage was able to have more success than the average person with full capabilities. Dr. Genensky passed away on June 26th, 2009, but clearly has left a lasting legacy. Not only was he a brilliant inventor, he was a great inspiration!

What do you think of Dr. Genensky's accomplishments? Please post your comments!

51 of your local Florida Winn-Dixie grocery stores have been remodeled not only on the inside, but the signs outside will be changing as well. The Jacksonville, Florida-based supermarket chain has announced that it is creating a new brand called Fresh Checked Every Day to accompany the renovations. Many of the revamped stores are located in Duval County.

Winn-Dixie currently has about a 13.3% share of the Florida grocery market, behind both Publix and Walmart. The new remodeling plan is a substantial investment, especially considering the fact that Winn-Dixie filed for bankruptcy in 2005. Some of the major changes include larger produce departments, custom sub shops, and greater selections of natural and organic foods.

While it is important to reach different demographics and appeal to a wide consumer base, a business should be careful not to cause brand dilution. For instance, Food Lion, a Mid-Atlantic grocery chain, recently spun off two new brands: Bottom Dollar and Bloom. As a result, customers now suffer some confusion as to Food Lion's identity.

Building a brand image is a long process that takes years and it shouldn't be tarnished by adding sub brands haphazardly! The key to bigger and better business is a strategic growth scheme. Consult a franchise attorney to find out where, when, and how you should expand!

In the wake of the worst American recession since the Great Depression, plummeting vehicle sales, and impending Chapter 11 bankruptcy, embattled automaker General Motors announced in 2009 that it would end franchise agreements with 1,270 dealerships across the country in 2010. Of its eight current nameplates, Pontiac will be eliminated, and Saturn, Saab, and Hummer all have been sold off.

GM stretched itself too thin and saddled itself with an inflated number of uncompetitive brands. The irony of the situation is that GM is finally showing flashes of potential and is producing desirable cars (e.g. the ZR1, CTS, and upcoming LaCrosse) after years of bad engineering, bean counting, and allowing that cut-corner mindset to adversely affect the quality of its cars.

The damage is likely to get much worse: GM is seeking to slash the number of dealerships by a total of approximately 2,400 by the end of 2010. GM failed to strategically align itself globally, made poor agreements with the United Auto Workers, and neglected to value engineering and the quality of its products above all else. GM made its own bed and has to sleep in it. Regrettably, now thousands of dealers may have to pay the price for GM's ineptitude.

Although GM launched an pathos-packed campaign (including a television commercial!) to re-new its tarnished image and gain America's support, how would you feel if you were abruptly dropped after a franchise agreement you had worked hard to negotiate and uphold? I would be livid if I lost my business due to the mismanagement and incompetence of my franchisor!

How do GM's actions strike you? Is it fair to the franchisees? Contact me to discuss!

Jay Leno may be the predictable, humorless, lisping shadow of the much more talented, suave, and hilarious Conan O'Brien, but that's not the only thing our mega-chinned lackey was lacking. For five years, thejaylenoshow.com domain name did not belong to the veteran comedian and former Tonight Show host. Instead, it was occupied by one Guadalupe Zambrano in order to drum up interest in his real estate page. Fortunately, Jay Leno now has rightful possession of the web address after the World Intellectual Property Organization recently mandated that it be returned to him.

Cybersquatting refers to bad faith registration of a domain name so as to profit from someone else's trademark. To add insult to injury, cybersquatters often attempt to extort money from the trademark holders by offering to sell the addresses back to them. The U.S. Antisquatting Consumer Protection Act was enacted to deter this type of exploitation. Misleading users in an effort to draw them to a particular site is banned by the Act.

The WIPO held that following a 30-year career, Leno had procured common law trademark rights to his name, and gave Zambrano a 10-day window to surrender the web address to Leno. A domain name represents one of the keys to widespread recognition, builds website traffic, and helps to create a natural association between a site and a person or entity.

I'm glad that the WIPO issued a decisive ruling and empowered trademark holders. People who have worked for years to build goodwill in their names deserve protection. Opportunistic cybersquatters should not be rewarded for their deceptive tactics! However, I don't know why this is the only registered trademark with Jay Leno's name. If you know, would you please pass it along to me?

By now, everyone has heard of Byrd and Melanie Billings, the Florida couple who were gunned down in cold blood in their own home in early July, 2009. Not one detail of this sad story is run of the mill as the Billings were the proud parents of 17 children, 13 of whom were adopted and have special needs. Now another puzzling wrinkle has been added to mix; Mr. Billings reportedly copyrighted his children's names and repeatedly alleged infringement.

I know what you're thinking: "Copyrighting a name?! Is that possible?!"

My answer is no. And even if it is, it's doubtful that he would be able to pursue a copyright infringement claim. Copyrights protect an expression of creativity on a tangible medium. I don't care how creative Hollywood parents get with their babies' names--it's not eligible for copyright protection. Write a poem with the kid's name, and now the poem is eligible for copyright protection.

Strangely, Mr. Billings frequently sent letters to the Florida Department of Children and Families, accusing the agency of infringing upon copyrights on his children's names and demanding $100 million dollars in silver coins or Federal Reserve notes. He claimed that the DCF violated copyrights, trademarks, contracts, admiralty and maritime law, the Truth in Lending Act, and committed libel. This story has gotten odder and odder in the days have since the shootings.

Mr. Billings appears to have had a checkered past including ownership of a strip club, alleged involvement in an adoption scam, and associations with disreputable individuals. This has led some to speculate whether the killings were a contract hit. Unfortunately, nothing conclusive has been discovered as to motive.

Despite the darker facts that have emerged, the Billings seem to have been a sweet couple blessed with the wherewithal to take care of several developmentally-disabled children. It's tragic that some of their own colleagues may have been responsible for their murders, and I sincerely hope that the perpetrators are brought to justice and punished to the full extent of the law. I can't fathom such callous indifference to life!

How do you feel about these new revelations? Please post your comments!

A highly effective way to expand your business is franchising, but what makes some franchisors more successful than others? The following tips may guide your decision-making process as you grow your company through franchising.

It is important to work with a reputable and experienced franchise development company. Even as a franchise attorney, I turn to my business development experts at Alpha Growth Strategies to review and advise as to the best way to make business take off. Select a company that is willing to assist you throughout the franchising process, including negotiating leases and making financial projections, and not just with producing contracts and the Franchise Disclosure Document.

Also, don't be frugal when it comes to your initial investments in a franchise operation. Typically, franchisors who enjoy success are those who invest in state of the art computer and IT systems. Communication and information is the foundation of any business venture. Additionally, select a location for the franchise headquarters that includes room to expand and that will deliver a positive first impression to prospective franchisees. These may seem like unreasonable expenses at first, but the extra investment will pay off with a higher rate of franchise purchases in the future.

Finally, hire a good public relations firm with experience in the field of your business. Such an outside source of expertise will help generate ideas to distinguish your company from others in the market place.

Numerous reports have surfaced alleging that the underlying ideas for one of the wildly successful Harry Potter books may not have come from author J.K. Rowling but instead may have been an imitation of a preexisting fictional personality dubbed Willy the Wizard.

Rowling's 2000 fantasy novel, Harry Potter and the Goblet of Fire, is contended to have a striking resemblance to a book written by British author Adrian Jacobs in 1987 titled "The Adventures of Willy the Wizard – No 1 Livid Land." Interestingly, it is claimed that Jacobs, who died several years ago, had unsuccessfully submitted the manuscript for his novel to the same literary agent that currently represents Rowling. Jacobs' estate has commenced a copyright infringement action against Rowling's publishing company, Bloomsbury Publishing Plc.

Copyrights enable authors, artists, musicians, and other composers to guard their intellectual property and deter plagiarism. In the absence of a license agreement or other authorization, the original author has exclusive rights to reproduce or create derivatives of his or her work.

I, for one, hope that the accusations are unmeritorious as Rowling has been an inspiration to many and substantiation of such claims would cast a dark cloud over a series that has entertained millions. Duplicating another's original literary work and passing it off as one's own is tantamount to theft and would be extremely distasteful, especially for a multi-billion dollar franchise such as that of Harry Potter.

What's your reaction to these allegations? Please post your thoughts and comments!

The current proliferation of social-networking sites has been nothing short of astonishing! The two hottest sites at the moment, Facebook and Twitter, have 200+ million, and 12+ million users, respectively!

Facebook is a profile-based system, where users can post individual information, add friends, and communicate with them in a variety of ways. Twitter features the ability to tweet, which is an instant announcement to the world as to what you're up to, in 160 characters or less. Several Jacksonville businesses are capitalizing on Twitter's popularity and are utilizing the site to reach countless new customers by posting the latest, most up to date information regarding their products and services. Twitter may serve as an effective means for targeted advertising, particularly to younger clientele.

My advice for you professionals out there: don't mix business with pleasure! Sure, it's hilarious to show the world your candid camera moments at your brother's bachelor party, but your clients might not appreciate your rock star persona. At the same time, if all you tweet about is the N'th hour you have been slaving away at your desk, your social circle might start to look more like a pinhole.

The solution is to create two profiles: one for business, and one for pleasure. Compare the Facebook page I created for business, in addition to my original personal one. If you are so inclined, compare my business Twitter page with my personal page.

One of the keys to the popularity of these sites is free, virtually unrestricted access. This technology is not only burgeoning in the United States, but is veritably global. Media outlets like CNN are even relying on Twitter for breaking news!

It is vital for businesses to be adaptive and maximize their exposure through dynamic new technology. Customers cannot visit your business unless they know where to look! Where can I find you? Visit my Facebook and Twitter profiles, and leave me a note!

 The Associated Press has reached an agreement with All Headline News, to drop its intellectual property lawsuit alleging that AHN essentially stole AP stories and tried to pass them off as its own. The complaint included misappropriation of news reports as well as copyright and trademark infringement.

The suit was filed in January 2008 in the U.S. District Court for the Southern District of New York and the AP relied heavily on the theory of "hot news." This theory was originally set forth in International News Service v. Associated Press, 248 U.S. 215 (1918), wherein the Supreme Court held that, as far as ownership rights, breaking news may be treated like quasi-property. U.S. District Court Judge P. Kevin Castel ruled that "hot news" could serve as a basis for a misappropriation claim in the instant case, because money, time, and resources were expended to gather this information. This decision was somewhat surprising as most view "hot news" to have limited applicability.

The AP accused AHN of actively copying its news information without a license and rewriting it to appear as AHN's original work. The suit was ultimately resolved in June 2009 and as part of the deal, AHN conceded that it had used AP intellectual property without permission in several instances.

If someone had pilfered my work, I would find out whether they intended on giving me credit for my work, or whether they intended to compensate me for what was rightfully mine! It is unsettling when people try to take credit for someone else's efforts, because it doesn't offer any motivation for creative, hard-working individuals to keep contributing to the public sphere.

Want to insulate yourself from intellectual property theft? Contact an intellectual property attorney to learn how to guard your important business content!

The word patent may naturally evoke ideas of innovative inventions and gadgets. But you should also be aware that patentable subject matter encompasses more than just tangible inventions or machines. It is also possible to patent a process or method.

You can obtain a utility patent for any new and useful process, machine, article of manufacture, or composition of matter. A process is defined as a series of steps or acts to be performed. To determine if a process is patentable, the examiners at the USPTO apply a number of tests, such as whether the process includes laws of nature, natural phenomena, or abstract ideas, which are all non-patentable, or whether the process transforms an article into a different state or thing, which is consistent with patentable subject matter. Previously, the main test was whether a process produces useful, concrete, or tangible results. This standard has been overruled by court rulings.

A process is not sufficiently transformative if it merely involves gathering data into an algorithm, such as conducting clinical tests and determining if any abnormalities exist. On the other hand, a process is patentable if it transforms the raw data into a particular visual depiction for display. In such case, the data is representative of a physical object or article.

For more information about obtaining a patent for your novel and useful process, contact a competent patent attorney.

Once you have developed a business plan and established a franchise, it is important to stay connected with your franchisees. Your success, in the form of license and franchise fees as well as profit sharing, may depend largely on their success. Therefore it is vital that you are able to be their guide. Consultants in the field of franchising have identified various ways to deliver messages to business contacts.

The use of newsletters is one of the more traditional methods of sharing information. For example a franchisor may send franchisees a monthly newsletter to discuss brand ideas as well new marketing insight. In addition, an innovative franchisor will solicit feedback and advice from franchisees about their particular operation. This will provide material for future newsletters. In this manner, each franchisee may benefit from the collective knowledge of the whole group. Another way to disseminate information is through videos. This is especially useful in situations where language barriers are present, such as international restaurant franchises.

Of all the communication methods available, intranets are the most revolutionary because they can relay information in an instant. An intranet is a private computer network that transmits secured information between users. This is different from the Internet, where the public has general accessibility to data. Franchises using intranets benefit from message boards or chat boards where franchisees can post messages or get quick advice from each other. Therefore franchisees save time and money as they are able to get help with problems almost as they arise.

For various reasons, a franchisee may want to get out of a particular business and sell the franchise. But is this permitted? Can a franchisee sell a franchise or is this something only franchisors can do?

In general, the answer is yes, however some conditions may apply depending on the Franchise Disclosure Document (FDD). In addition to governing operational issues such as royalty fees, the FDD often contains provisions regarding franchise resell. For example, the original franchisor usually reserves the right to approve new buyers. This provision protects the franchisor as well as other current franchisees by preventing under-qualified individuals from becoming business owners and besmirching the business reputation and consumer good will. On the other hand, the franchisor's right to approve the new buyer might serve as a detriment by hindering the franchisee's ability to sell the business.

If you are considering purchasing a franchise, examine the FDD to fully understand the terms of the franchise agreement. Particularly, look for provisions that might affect franchise resell if you are unsure of long you want to own the business. It is important to identify undesirable aspects of the FDD because a franchisor may be willing to negotiate. In any event, it is not advisable to enter any purchase agreements without first consulting a franchise attorney.

We all know Apple, the trendy electronics and software brainchild responsible for mesmerizing us with iPhones and iPods. The technology giant hypnotizes us, and we truly believe that without their fresh, avant-garde products, we are not sexy or cool. (*Ahem* Despite their marketing prowess, I still believe I can be sexy and cool as a PC girl.)

What most don't know is how unequivocally silent Apple has been when it comes to disclosing information about its research and development. Despite online advances such as Facebook, Twitter, and other sources for disclosure, the company remains tightlipped with respect to its engineering.

Strict controls are imposed in the name of security to prevent employees from releasing any valuable information and harsh sanctions are in place for those who do. Apple is virtually impervious to leaks and even goes so far as to keep its own employees in the dark; many themselves are shocked when new products, such as the latest iPhone 3GS, are unveiled. The company is also famous for its product plan ruses designed to mislead both outsiders and also its own employees as to the state of certain Apple technology.

Even seemly innocuous information, such as the health of CEO Steve Jobs following a secret liver transplant, is kept under lock and key. Such unwavering devotion to discretion is a calculated business model and is indicative of executives that fully appreciate the high value of intellectual property. However, this secrecy can breed suspicion and give birth to consipiracy theories among consumers. Trade secrets are critical for any business and comprise the essence of brand image and identification, but today's sophisticated public demand the truth and trust in the products they support.

What measures should your business take to protect its trade secrets? An intellectual property attorney can show you how to preserve your sensitive information, and balance a positive brand name image.

According to Irving Picard, the bankruptcy trustee handling the infamous Bernard Madoff fraud case, Jeffry Picower "was the biggest beneficiary of Madoff's scheme, having withdrawn either directly or through the entities he controlled more than $7.2 billion of other investors' money." At the time of his death, Picower was being sued by the trust for the $7.2 billion dollars. His friend, Madoff is currently serving a 150 year term after pleading guilty to running a Ponzi scheme that bilked investors out of $65 billion.

Picower was listed recently as one of the top 400 wealthiest Americans by Forbes Magazine. He died in Palm Beach Florida of a heart attack in October of 2009. In his will he left $200 million to his wife, Barbara, $10 million to his daughter, Gabrielle, and $10 million in trust to his assistant, April Freilich. According to Mrs. Picower, her husband was committed to compensating victims of Madoff's scheme for their losses.

It is unclear how he intended to do so. According to the family lawyer, William Zabel, there will be enough money left over after the settlement to establish a philanthropic foundation, which will be headed by Barbara Picower. Find out more about the provisions of Jeffry Picower's will at Madoff friend Picower leaves $200 million to wife.

If you have a business law matter, please contact a business law attorney for legal counsel.

Most people don't mean to cheat on their taxes, but sometimes vague rules and changing regulations can mean you are cheating on your taxes without even realizing it. The following are the three most common tax mistakes most people make, and how to avoid them.

Mistake #1: Not keeping business and personal affairs separate

This can be harder to do than it sounds. You may be friends with a customer, go on vacation with a client, or buy a vacation home that you rent out in the off season. But you will be better off if you can keep business and personal affairs as separate as possible. Some common mistakes in this area include claiming that a hobby is a business or trying to deduct the fees for your divorce because it put your business at risk.

Mistake #2: Not keeping good records

This isn't just for business owners. Gamblers should keep records of their losses; they can use them to offset a big win they get later in the year. Charitable donation should be made by check, not cash so that you have a record of how much you gave and to whom.

Mistake #3: Not keeping 1099 and other informational forms

1099s and 1098s are considered "information returns," meaning that you are not required to send them in with your return. But you need a system to track and account for 1099s whether you are the payer or the payee. Also be sure to check the information carefully and request a correction if required.

Read more details of each of these common tax mistakes at 3 tax mistakes made every day.

If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with tax planning, please contact a tax attorney for tax planning legal counsel.

Many known brands incorporate punctuation, such an asterisk (E*Trade) or an exclamation point (Yahoo!), into their trademarks. But does this translate into a stronger mark? More importantly, will punctuation make your trademark stronger?

In general, punctuation will not increase your trademark's strength unless it alters the actual meaning of the words or creates more consumer identification with the mark. In other words, punctuation tends to strengthen trademarks when it causes consumers to associate the mark with a particular good or service. For example, E*Trade and Yahoo! are known partially for their punctuation.

If a mark consists of terms that are generic or merely descriptive of goods or services however, adding punctuation will not increase its strength or make it more capable of being registered as a trademark. This is because changing the appearance of the mark does not change its meaning in the eyes of consumers. For example, the Trademark Trial and Appeal Board held that the mark "3-O's", used in connection with car wheel rims, to be merely descriptive and denied trademark registration. The TTAB noted the term thirty is commonly used to describe the diameter of wheel rims. Despite the unique configuration of the hyphenated 3 and O, there is no difference between the mark and the descriptive term because consumers understand the two as synonyms.

Are you considering registering a trademark? Be sure to consult with an intellectual property attorney to assess the strength of your mark and possible methods for improvement.

Like other entrepreneurial individuals, you may have thought about purchasing a franchise but do not know where to start. Though we use goods and services provided by franchises on a daily basis, information about buying the actual business does not always appear to be so readily accessible. In reality though, the information is easy find if you know what you are looking for.

Before looking at any specific franchises, determine what type of business most appeals to you. For example, if you have enjoyed working in food service over the past years, you might prefer a restaurant franchise or other similar food service oriented business. On the other hand, it is not advisable to purchase a franchise related to past negative work experiences.

Then, assess whether that type of business is economically feasible in your geographic area. Just because you like a business idea does not necessarily mean customers will. Accomplish this by examining other franchises in the area that have endured throughout the years. I usually refer my clients to a franchise development consultant, like Alpha Growth Strategies, to assist in evaluating potential sites.

After determining what type of business will fit both you and the area, your search for franchise opportunities will be more focused. Find information about specific business at the Franchise Registry. The Franchise Registry lists businesses that are approved by the Small Business Association as being fair.

Don't go about evaluating franchise opportunities alone! For more advice regarding franchise opportunities or purchasing a franchise, contact a franchise attorney to schedule a consultation, and be sure a franchise development consultant participates in the meeting.

Like most other modern business owners, you likely use keyword adverting through internet search engines. Most advertisers use generic terms such as 'massage' or 'furniture' as keywords. However, using the registered trademark of another as a keyword for your product or service may constitute infringement. So if you plan on using a third party trademark in this manner, proceed with caution and observe the tips below.

In case you are unfamiliar with the terminology, keyword advertising involves the advertiser using the services of an internet search engine, such as Yahoo! or Google to attract customers. The advertiser will purchase from the online search service certain terms or keywords that correspond to its products or service. When a potential customer enters the keyword into the search engine's website, they are directed to the advertiser website.

If your advertising efforts result in a likelihood of consumer confusion, you could be liable for trademark infringement. The best practice is to refrain from using another company's name as a keyword. Instead, employ generic terms that refer to your business. If you do use another company's exact name or trademark, avoid using the term in the description of your website. Alternately, make it clear to consumers that another party owns the mark and that you are only using it for advertising or comparison purposes.

When applying for trademark registration with a use-based application, it is necessary to provide information regarding use of the mark in commerce. While the lay definition of 'commerce' is simply business transactions, the legal definition provides specific requirements.

In Federal Trademark terms, commerce refers to that which is regulated by the U.S. Congress. This includes interstate commerce, which is any transaction between states. For example, using the mark in the ordinary course of trade across state lines or out of the country is satisfactory. Other forms of interstate commerce include advertising over the internet because it involves the transfer of information through communication networks that cross state lines and is available to a national audience. In addition, advertising through television qualifies as use in commerce even if produced and broadcasted within one state. This is because television is federally regulated.

Proof of use in commerce is accomplished with a sworn statement declaring how the trademark is used as well as the date of its first use. For more information regarding use in commerce or trademark applications in general, contact a qualified trademark attorney.

 Congress has received a request from the United States Patent and Trademark Office for rule changes to offset ongoing heavy financial losses the agency has sustained. Revenue from patent filing and maintenance fees has been shrinking rapidly and the USPTO has been forced to make budget cuts across the board.

A steady influx of patent portfolios from companies, a substantial backlog, and internal red tape all have contributed to diminishing returns. Annually, the USPTO receives approximately 450,000 applications which must be analyzed and then either granted or rejected by one of 6,285 patent examiners.

The USPTO has approached various congressional committees for appropriations and suggestions on how to address its shortfalls. Ominously, USPTO surveys have revealed that patent attorneys and companies believe that the USPTO's economic condition may deteriorate further.

The agency looks to improve efficiency and bolster operations as President Barack Obama recently nominated David Kappos to be the new Under Secretary of Commerce for Intellectual Property and Director of the USPTO. Kappos currently serves as IBM vice-president and assistant general counsel for intellectual property.

Kappos has been a patent-reform advocate, lobbying for higher-quality patents and a reduction in excessive patent litigation. Hopefully this new director will implement new, cost-effective strategies and steer clear of such knee-jerk reactions as increasing patent fees.

Will the USPTO's monetary woes affect the progress of your patent? File early with the help a thorough patent attorney to avoid potential delays and higher expenses!

Popular social networking website Facebook implemented a new policy effective as of June 13, 2009 enabling users to register URLs for their usernames. What this means is that a Facebook user may register, for instance, www.facebook.com/pepsi as the address for his or her profile. The registry process is a first-to-register system awarding a specific username to whomever requests it the earliest.

Users with no connection to, or legal permission from, registered trademark owners may seek to register existing trademarks on Facebook and preempt the registered trademark owners from obtaining their rightful usernames. An association of your trademark with an unrelated profile, especially on a platform as prevalent as Facebook, unfortunately can have detrimental consequences for your product, service, and/or brand image.

My firm has used its own trademark on its Facebook page. It is "www.facebook.com/WoodAtterWolf." I would be incensed to know that other law firms might be using our trademark to direct traffic away from our profile, towards themselves, and I would certainly take measures to stop this infringing use.

Facebook has included some limited safeguards but the onus is on the registered trademark owners to actively ensure that misuse does not occur. If you have discovered infringement, Facebook provides a link to report unauthorized use of your trademark to them.

I am curious as to ICANN's (the Internet Corporation for Assigned Names and Numbers) role in this subject. ICANN has adopted several domain name dispute policies, including the UDRP (Uniform Domain Name Dispute Resolution Policy) for its accredited registrars. My guess is that many Facebook users who use another's trademark name for their profile will find themselves tangled up in a domain name dispute resolution procedure. This could be a messy situation, since there are many complicated and intricate rules even under the UDRP.

Unsure of the implications this development may have on your registered trademark? A trademark attorney can inform you of all the potential ramifications.

The recently deceased superstar was known by many names: the King of Pop, M.J., Jack-o, and the list goes on. We also recognize him either as a dark-skinned cherub-faced child or a pale, middle-aged man with over-processed facial features. Why don't we also know him as an Intellectual Property Goldmine? Love him or hate him, the supremely talented character was a genius when it came to securing various forms of intellectual property during his long and decorated career as an artist and performer. Michael Jackson brilliantly relied on copyrights, trademarks, and even patents to protect his work, and was an avid collector of others' proprietary works.

Jackson registered his name with the U.S. Patent and Trademark Office and held a multitude of trademarks ranging from performances to merchandise to fan clubs. Even for a personality as distinctive as Jackson, trademarks played an important role in further distinguishing him from others.

Not only did Jackson guard his own work and attributes, he even acquired copyrights to other music. He owned a 50 percent stake of Sony/ATV, a joint venture which controls publishing rights to two hundred and fifty one Beatles songs. Jackson famously outbid Paul McCartney to purchase the song-copyright catalog in 1985. Today, Sony/ATV is estimated to be worth upwards of $1 billion dollars.

Amazingly, Michael Jackson even patented his very own invention, a method and means for creating an anti-gravity illusion. The patent features a shoe interfitting with a peg protruding from a stage and enables a wearer to lean forward at a 45 degree angle to the floor without falling. It certainly appears to be unprecedented for a musician to have obtained a patent himself.

In the course of business, you may often receive emails that are punctuated at the end with a disclaimer that reads as follows: "The contents of this email are intended for the aforementioned recipient and are confidential." But are these messages effective in protecting your valuable business information and trade secrets?

The general answer is that such disclaimers do not protect anything. The reason behind this is that a disclaimer does not create a legally binding contract. For an agreement to be enforceable, all parties involved must agree to the terms. A disclaimer is nothing more than a warning from one party to the other. And besides, what good does the disclaimer do after the entire body has been read?

To protect your confidential information, avoid sending it though email. Instead, send the data through the regular postal service and package it in a box or envelope bearing a "confidential" or "classified information" stamp. If it is absolutely necessary to send the information through email, then place a disclaimer at the very beginning of the message. In this manner, if an unintended recipient receives it, they will not have to read the entire message to realize it is confidential.

Despite a poor economy, a weak job market, and an increasing number of layoffs, now is a great time to buy a franchise. The number of franchises in the industry has increased and created competition among franchisors, which are becoming more aggressive in recruiting franchisees.

Some franchisors have resorted to attracting buyers with discounts on initial fees and costs. For example, one company announced that it would waive a $30,000 franchise fee for qualified military veterans.

Other franchisors have developed creative tactics to target nontraditional franchisees. One such tactic is to offer employee discounts. This plan encourages employees to purchase a franchise by rewarding high performers with a discount on the initial franchise price. The resulting franchises are often highly successful because the franchisee is better-trained and less likely to make costly mistakes.

Franchisors are also offering money-back guarantees to reduce the uncertainty associated with buying a business. A typical guarantee provides that if the business has not reached certain revenue goals after the first year, the franchisor will buy the franchise back. In most cases, the guarantee is only valid if the franchisee follows franchise guidelines in operating the business.

It is a buyer's market when it comes to franchises. In light of this competition, be aware that many franchisors are willing to negotiate fees and payments structures. If you have thought about purchasing a franchise, consult a franchise attorney for advice and assistance with the acquisition.

Universal Music Group, the copyright holder of Prince's song, "Let's Go Crazy," earned over $6.9 billion in 2007. In February of that same year, toddler Holden Lenz was lucky to take 6.9 steps on his own two feet. But that didn't stop Universal from suing Holden's parents for copyright infringement, when they posted a 30-second video on YouTube of the baby bobbing to "Let's Go Crazy," playing faintly in the background of their kitchen in Pennsylvania.

Long before the tot could sing a nursery rhyme, his case set a precedent in federal court. The Northern District of California interpreted the Digital Millenium Copyright Act (DCMA) as requiring copyright owners to conduct a good faith evaluation of alleged infringement to consider fair use of the work, prior to sending takedown notices to websites like YouTube. Failure to do so could expose the owner to damages. This case essentially placed the burden of preventing online copyright infringement back on the owner.

The DCMA establishes safe harbors for internet hosts, so that they are not liable for the infringing acts of individual website owners or public posts on websites. Online companies like Facebook, MySpace, and YouTube enjoy the benefit of this safe harbor if they expeditiously remove allegedly infringing material, upon receiving a Takedown Notice from the owner. The online company then must notify the posting party, so that he can send a counternotification that he believes, in good faith, that he is not infringing. Unless the owner filed an infringement suit against the posting party, the online company, obviously caught in the middle of this war, then has 14 business days to restore the material on their site.

Because the Takedown Notice is relatively easy to send, and it starts such a flurry of burdens on online companies, the Lenz case requires copyright owners to do their due diligence to first determine whether there has been fair use of their material. Otherwise, the copyright holder faces liability for misrepresentation.

While strict copyright laws are intended to promote creativity, by protecting the rights of those who express creativity on a tangible medium. Although initially counterintuitive to place the burden back on copyright owners to perform due diligence investigations on alleged infringers, this requirement may, in itself, promote creativity. Lenz's attorney, Corynne McSherry argued that people who post on online sites "create a new and more vibrant public sphere," and that these posts should not be discouraged.

I absolutely agree with McSherry. I am one of millions of Facebook junkies. My friends' videos, photos, and posts are what make Facebook so intriguing (and addictive). The fair use of copyrighted material becomes a springboard for my friends' own creative works. Without my friends' contributions, the allure of Facebook would literally fade away.

What do you think? Read more about this story in an article by the ABA Journal. I'd love to hear your comments--contact me to discuss!

In 2008, a California appeals court decided that even if a patient is harmed by a manufacturer of a generic drug for failing to warn consumers of possible side effects, the manufacturer of the brand name equivalent could still be liable for negligent misrepresentation.

In Conte v. Wyeth, Inc., the plaintiff, Elizabeth Conte, was prescribed Reglan for acid reflux. The generic equivalent is metoclopramide. After using the generic version of the drug for four years, she developed tardive dyskinesia, a neurological disorder. The condition is associated with tremors and involuntary twitches. Judge Peter Siggins reasoned that name-brand drug manufacturers know or should know that doctors would prescribe the generic equivalents, and the brand name manufacturers thus must educate doctors and consumers about possible side effects of the drugs, regardless of which version is ultimately prescribed.

It is important to note that the manufacturers of the generic drugs are not absolved. They simply now share liability with their brand-name competitors.

Warez is a term internet users created that refers to illegally downloaded copyrighted works. It likely originated from the plural of "software" as such groups often use specialized computer programs and servers to transfer large amounts of data, such a music and digital films.

Illegal downloading is a serious crime in the United States. In fact, I discussed the harsher penalties recently imposed by President Bush in the Pro-IP Act of 2008.

A Federal Court of Appeals recently upheld a 30-month sentence for downloading copyrighted works through a warez group. The defendant was guilty of illegally downloading films and music from the Czech Republic.

In this case, the defendant was indicted under a Federal statute for willful copyright infringement by reproducing or distributing during a 180-day period at least ten copies of one or more copyrighted works with a retail value of more than $2500. Even though the defendant had no criminal record and did not benefit financially from the activity, a federal judge determined that the prison sentence was reasonable.

All things considered, it is a good idea to be aware of the downloading activities on your computers or networks. According to federal law, many people may qualify for harsh penalties, including some very hard time.

On August 1st of last year, Copyright Office fees changed. While basic electronic filing will still be $35.00 per claim, the fees for form CO filing (which is filed electronically, printed out, then mailed to the Office) will jump to $50.00. Paper applications for published photographs will increase to $65.00. Currently, the fee for form CO filing is $45.00 and the fee for a paper application for published photographs is only $45.00. The Copyright Office stated that increased fees for paper applications are associated with the higher cost of processing them.

A copyright protects the expression of your original works of authorship including literary, artistic, or musical compositions and sound recordings. For example, if you register an original set of song lyrics, you can prohibit others from reproducing them without your express authorization. In this manner you may be able to charge royalties in exchange for such authorization.

The change in fee structure may seem slight. However, in light of the current economy, any future increase in registration fees should provide you with the necessary reason to expedite your copyright application and submit it before the changes take effect.

My advice? Get your copyright applications filed before the fee changes! Don't forget to contact a good copyright or intellectual property lawyer to assist you.

Are you a college or graduate student with a good idea for a new invention? Check out the Collegiate Inventors Competition. The competition has recognized, rewarded, and encouraged hundreds of inventors worldwide since 1990. To be eligible, you must either be a graduate or a college student, or have been enrolled as such in the past 12 months.

An entry shall include a model of your invention that is complete and workable. The invention must be the original work of the applicant and cannot have been made available for public use or patented more than one year prior to submission. Entering the competition does not constitute a public disclosure. Two winners will receive cash prizes of $15,000.00. Additionally, 12 finalists will each win a $2,000.00 cash prize and an all expenses paid trip to present their work to a panel of judges.

Even if you miss this year's competition, you still need to protect your invention! Do a patent search to see what other inventions are similar to yours. It might be in your best interest to file a patent application, to prevent others from using your methods to build your invention. Schedule a consultation with a patent attorney to discuss your legal rights.

If you have a successful business, you may want to consider expanding through franchising. By franchising, you can grow larger and faster because the franchisees provide the funds for the growth, not you.

One important issue to consider before franchising is whether you have developed a strong trademark for your business. This is crucial because a strong trademark delivers a consistent message to consumers about your franchise's products and services. Franchisees will pay higher royalties for a franchise like Subway, which has a nationally reputed trademark, than they will for a franchise with little or no consumer recognition.

In the very least, be sure to register your trademark before franchising. Registration provides a presumption that your trademark is valid. This will facilitate any claim of infringement in the unfortunate event that one of your franchisees attempts to improperly license or use your trademark.

A strong trademark is a term or phrase that does not merely describe the goods or services. Rather, strong trademarks require imagination, thought, or perceptions to link the mark with the provider of the goods or services. Such marks may suggest the quality of the goods or services, or may not have anything at all to do with the goods or services. For example, Greyhound might imply that a bus line provides fast transportation. Apple, on the other hand, may have nothing to do with a line of computers.

In an earlier post, it was stated that an inaccurate declaration of use on a trademark application would amount to fraud unless corrected before registration. According to a recent Trademark Trial and Appeals Board case, however, such inaccurate statements of use can be cured even after trademark registration.

If the registrant corrects the false statement prior to any challenge to the registration, it creates a presumption against fraud. This means that if the challenging party produces no other evidence to support registration fraud, the registrant will be found not-guilty of fraud. This decision provides a positive direction for future trademark registrants, even though it is not binding and therefore not mandatory authority. The option to cure a statement that has the potential to incur liability of fraud is a benefit to the trademark owner. Many future owners are initially unsure about the exact intended use of their mark. As a result, a common practice is to overstate such declarations of use because an understatement will likely lead to insufficient trademark protection.

Don't take a chance with your trademark application! Have a competent trademark attorney prepare or review your application.

Franchises are built upon sound business models. However, buying into a franchise does not always guarantee success. As a potential business owner, financial success depends on whether or not you are diligent and avoid some of the common mistakes new franchisees often make.

Commonly, a franchisee proceeds to purchase a franchise without fully understanding the terms in the franchise disclosure document (FDD), the document outlining the franchisee's and the franchisor's responsibilities. This results in later misunderstandings between the parties, such as conflicts in fee scheduling and grand opening dates. If you are thinking about buying a franchise, a good idea is to create a list of questions that arise when you review the disclosure documents. Go over this list with your attorney at a later time. Also, present the list to the franchisor for written clarification to your questions.

Another mistake is failure to contact enough current franchisees. By speaking with other franchise owners, you will be in a better negotiating position because you can compare the offer the franchisor made you with offers made to other franchisees. Contact current franchisees other than those referred by the franchisor. In this manner, you will come to understand both positive and negative aspects of the franchise.

Similarly, franchisees also do not investigate failures within the particular franchise. When contacting other owners, find out what has and has not worked for that business. This will help avoid costly mistakes and may even save your franchise in the future.

Avoid these mistakes by contacting an experienced franchise attorney to set up a consultation.

It's one thing to have a patentable invention, but it's quite another to have a valuable invention. Before seeking a patent, or if you already own a patent, before selling or licensing the rights, it is important to ascertain its monetary value. That way, you will be able to make better decisions regarding whether or not to invest in a patent. Additionally, knowing how much your invention is worth enables you to negotiate more effectively with potential buyers. Practitioners use the following factors to assess the value of a patent.

Is there a market? First determine if anyone would be willing to purchase your invention. To do this, identify whether or not consumers actually need the product. You might accomplish this through personal experience, if the idea for your invention was born out of necessity, for example. This is usually only effective if the situation giving rise to such necessity is common to other people. If a market exists, determine its size. For example, try to figure out if the invention would serve a specialized niche of consumers or a broad base.

Are there comparable products? Another factor is to identify any comparable products already on the market. What are the other products' price points, and does your invention offer something new? For example, your invention may solve a problem in a specific area in which other similar products already exist. Highly valued products are those offering significantly more benefits than the competition.

While congress has yet to pass any laws addressing the 2010 estate tax lapse, several states are racing to enact legislation to assist families whose estate plans have fallen apart. Experts worry that the new, temporary estate tax laws could cause people to accidentally disinherit spouses, which in turn would lead to costly and lengthy court battles over the intent of the deceased. The lapse could ultimately impoverish widows and widowers, and end up requiring families to pay more estate taxes than are necessary.

Virginia has led a handful of other states in passing emergency legislation to nip these problems in the bud. Florida currently has estate tax legislation pending. Most of the emergency estate laws require any tax terms or formulas to be read as if the 2009 estate tax were still in effect, unless specifically spelled out otherwise. In Florida, potential beneficiaries may go to court if they believe that the actual estate plan is not what the deceased intended; those with ambiguous documents can go to court right away to determine the decedent's intent, and all heirs might have to wait until the court has ruled to collect their inheritance.

Unfortunately, since no one expected the congress to allow the estate and other taxes to lapse, most wills and trusts are still written to maximize estate tax savings under the 2009 estate and generation-skipping tax rules. Read more about the confusion caused by the estate tax lapse at States Race To Clean Up Congress' Estate Tax Mess.

If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with tax planning, please contact our firm for estate planning legal counsel.

There are many reasons why the State of Florida is a great state to declare your residency in.  I meet with clients and prospective clients all the time who are residents of another state and talk to them about why they should consider becoming a Florida resident.

The first reason to become a Florida resident is that there is no Florida income, estate, inheritance, gift, intangibles or generation-skipping tax.  Most states impose at least one of the above taxes on its residents.  Real property and tangible personal property are generally subject to estate tax by the state in which the property is located.  All other property such as bank and investment accounts are generally subject to the estate tax laws in place in the state the decedent resided in prior to their death.

An example that demonstrates this is Bob.  Bob has a checking account in a Florida bank, has him home in Florida homesteaded, a car, an IRA and a vacation home in New York.  Upon Bob's death, his vacation home in New York would be subject to New York estate taxes but the rest of his property would pass estate tax free under Florida law.  I won't discuss the federal estate tax as that is a completely different animal.

Florida residents and others should consult with an estate planning and tax attorney to review the various documents and strategies to take full advantage of the tax benefits under Florida law.

A federal criminal investigation has cost Narcy Novak control of her late husband's estate, valued at over $10 million. A Broward county judge initially named Ms. Novak as the representative of Ben Novak Jr.'s estate, but later reversed the order, citing a federal grand jury investigation into a criminal conspiracy allegedly involving the Novaks. The grand jury investigation is taking place in New York State.

Novak's father built the Fontainebleau Hotel, a landmark on Miami Beach, Florida. Novak himself was found slain in a New York hotel recently. He had apparently been beaten to death. Novak's relatives have fought against Ms. Novak receiving control over the estate, saying in court that they believe Ms. Novak was behind her husband's murder. Ms. Novak has not been charged in relation to her husband's death. Her lawyer has stated that she is innocent of the family's charges.

Managing an estate can be complicated, even without a federal jury investigation and allegations of murder surrounding the decedent. If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with estate planning, please contact an estate planning attorney for estate planning legal counsel.

Read more about this wealthy Florida family's estate woes at Widow of Fla. hotel heir loses control of husband's $10M estate because of federal probe.

Even thought the federal estate tax has lapsed for 2010, nineteen states and the District of Columbia will still take a piece of your estate after you die. Eleven of those states and the District of Columbia only collect an estate tax. Six other states only charge an inheritance tax, which rate depends on the heir's relationship to the benefactor. New Jersey and Maryland collect both estate and inheritance taxes.

Of course, state estate tax laws are constantly changing. Several states have estate taxes that are tied to the federal estate tax, and therefore lapsed in 2010 as well. Some of these states, like Delaware, rushed to implement a temporary tax to make up for it. Exemption levels are always changing, too. With many states hurting financially and the federal estate tax in limbo, expect more of them to change their estate tax laws throughout 2010.

Florida does not currently tax estates. You can find out more about which states do and how much at Where Not To Die In 2010.

Estate planning is more challenging now than ever. If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with estate planning, please contact an estate planning attorney for estate planning legal counsel.

Has this ever happened to you? You come up with a great idea for an invention. But before giving any thought to getting a patent, you contact a company and offer to sell your lucrative and profitable idea. Have you forfeited your rights to patent the invention? How do you disclose a proposal without forfeiting ownership?

You may still be able to patent your invention. The patent application will require proof that you came up with the idea first. One way to establish you are the inventor is to provide evidence of correspondence between you and the company discussing the idea.

However, a more effective method to avoid forfeiting a claim to an invention is to plan ahead by filing a provisional application for patent. A provisional application grants an earlier filing date as well as "Patent Pending" status to be used when disclosing your idea. Protection lasts up to 12 months from the filing date and is a relatively inexpensive investment. Thus, you are able to disclose your invention to potential buyers without fear of it being stolen and without the higher application costs associated with non-provisional patent applications. Before the 12-month period lapses, you can either allow the pendency status to expire or convert the provisional application to a non-provisional application, which will provide the benefit, if the application is granted, of being able to sue for patent infringement.

You can protect your secret formulas, recipes, or processes through trade secret law as long as the information at question is valuable to your business and you keep the information secret. But what measures do you have to take to maintain secrecy?

The Florida Uniform Trade Secrets Act, which governs trade secrets in Florida, only requires the information to be subjected to efforts that are reasonable under the circumstances to maintain secrecy.

One of the more famous cases that concern the maintenance of trade secrets is that of Coca-Cola. As you may be familiar, the secret formula for Coca-Cola is known to only a handful of senior executives. Each recipe holder must swear by oath not to disclose the secret recipe. This inclusive group appoints a successor when one of them dies to ensure the number of individuals with knowledge of the Coke formula remains constant. Finally, the designated executives are not permitted to travel together because a single accident might eliminate the formula's existence.

Another case involved KFC's extreme measures taken to protect their recipe from being stolen, during its relocation.

Surely, you do not have to go to these extremes to protect your trade secret. Secrecy is the main requirement. Therefore, you can maintain secrecy simply by not disclosing your information. You can accomplish this by keeping written documents, such as recipes, in a secured environment such as a safe or even a locked drawer. Also, if you must disclose your information, to essential employees for example, be sure that you use a confidentiality agreement or have them sign a non-disclosure form. Furthermore, if you wish to protect a website source code, you can prevent Internet users from viewing the code.

I disclosed the secret to preserving trade secrets in an article published by the Jacksonville Business Journal; read to find out more!

If your employer assigns you the task of producing a creative work, such as a photograph or a collage for advertising purposes, do not automatically assume you will own the intellectual property (IP) rights or even receive credit for it.

The employer usually owns the IP rights to anything made in the "ordinary course of employment." This is known as the work-for-hire doctrine. As with most legal concepts, the doctrine defines the "ordinary course of employment" in a very precise manner, reducing it into factors to be considered together. One factor is whether or not the work is produced during company time or with company resources. Another factor is whether either party takes action to indicate ownership of the intellectual party. Finally, a third inquiry is whether the work is included in the employee's job description. Projects that are within the employee's job description are likely considered works-for-hire.

However, you can still retain IP ownership over property created in the ordinary course of employment by executing a written agreement with the employer. Negotiate with your employer so that the terms of the agreement are clear and all parties involved are aware of expectations and responsibilities. Retaining such rights is important because IP licensing can be highly profitable.

If you have thought about engaging in creative endeavors for your employer, consider whether the product is going to be a work-for-hire. If you are unsure about your rights, or wish to retain certain rights with the ability to license, contact me for advice regarding negotiations and drafting the written agreement.

KFC. Coca-Cola. Pepsi. What do these companies have in common? Their success depends largely on a secret recipe or formula. If your business is built upon such a recipe or formula, then you may have considered protecting your information as a trade secret.

In Florida, the Florida Uniform Trade Secrets Act governs trade secrets. A trade secret is defined as information that is subject to efforts to maintain secrecy and derives value from not being generally known to other persons who could obtain value with it. See my advice for trade secret holders, in the Jacksonville Business Journal.

As mentioned earlier, a trade secret offers legal protection such as damages or an injunction. Unlike trademarks or patents, trade secret protection does not require a formal registration. To gain protection, you must generally follow three guidelines: the information cannot be generally known to the public, the information must be valuable to your business, and finally, you must take reasonable measurements to protect the secrecy of the information. Your trade secret may last as long as you protect it.

Want more information about protecting your trade secrets? Contact me, and I will be happy to give you a consultation.

Perhaps the most important question in the patent process is "Do I really need a patent?" In the excitement of innovation, it is easy to prematurely opt for a patent. On the other hand, you may have a marketable invention and not even realize it. To answer the question above, consult the factors below.

Does your idea have value? Before applying for a patent, it may be wise to determine if the proposed invention or system will be of any value to consumers. A patent prohibits others from copying your invention but does not guarantee that you will make any money from it.

Do you thoroughly understand the market implications of the invention? Patent applications are sometimes created so narrowly that they fail to protect future market applications. Before seeking a patent, consider all the possible uses for your product or system as well as the possible ways to market it. This will assist your attorney in drafting a patent that protects your interests both in the present and in the future.

How much are you willing to invest? In exploiting an invention, the patent application fees are but a single step in process. Consider the available resources needed for the entire project. In addition to obtaining a patent, you may also need to develop and execute a marketing plan and a manufacturing plan if the invention involves physical products.

If you have considered obtaining a patent, contact an experienced intellectual property attorney for advice regarding how to proceed or whether another form of protection is more applicable.

You may be familiar with Octomom, the Florida woman who recently gave birth to octuplets, but have you heard of Octomom the brand? Nadya Suleman, "affectionately" nicknamed "Octomom" by the tabloid media, recently applied to the USPTO to register the nickname as a trademark for use with clothing and disposable diapers. The application presents some interesting issues.

Commentators say the term "Octomom" is probably capable of functioning as a trademark as long as it is used to identify a brand or a source of goods or services. Others contend that trademark examiners will think otherwise. The application includes a section stating the "mark identifies Nadya Suleman, whose consent(s) to register is made of record." Such a statement may cause her mark to be perceived as identifying a person, rather than products or services.

In the same light, even if Suleman was to trademark her own name, surnames usually receive the same treatment as descriptive marks under trademark law. Therefore terms that include a name, "Jones Cosmetics" for example, are not protectable without a secondary meaning. Suleman has not established a secondary meaning for her name or nickname, because she has yet to use the term in commerce to identify clothing or disposable diapers. It is likely that the USPTO may require her to offer proof that the name has a reputation connected with the listed goods and not merely to her.

If you have considered obtaining a trademark for a brand that contains a name, contact an experienced trademark attorney for advice regarding secondary meaning requirements.

Most potential franchisees face a common impediment: money. The start-up fees and capital costs of a new venture can be extremely onerous and may even prevent many small businesses from launching. One solution to these costs is to finance with a Small Business Administration loan. Lately, however, potential franchisees are finding it increasingly difficult to obtain credit. To answer this obstacle, the International Franchise Association recently began campaigning to increase available credit for small business start-ups.

In this lagging economy the credit market has become rigid. As a result, SBA guaranteed loans decreased substantially in the last year. The IFA continues to champion small businesses and franchises as the cure to the recession. In support, the IFA reports that such entities are responsible for 60 – 80 percent of jobs created each year. Further, every $ 1 million invested or loaned to franchises and small business creates 34 jobs and over $3.5 million in total returns. The IFA has presented a two prong proposal for Congress. First, Congress should encourage banks to generate loans by reducing SBA lender fees. Second, Congress should eliminate the current SBA loan limits and allow the market to govern loan prices. This is will further encourage banks to issue loans for small businesses and franchises.

The IFA provides a template email and urges small business owners to take action to see these proposals through by contacting their Representative or Senator.

If you have registered a trademark for your business, you may have also thought about using your logo with promotional merchandise. Many trademark holders increase brand awareness by affixing their mark to hats, t-shirts, or mugs. There are different methods of ensuring that the logo retains its protected status while you use it in this manner.

The best way to protect the mark is through registering multiple classes on the trademark application. For example, in addition to stating the mark will be used in connection with your particular goods or services, also indicate the mark will be used with classes that include promotional items such as t-Shirts, Class 25, and coffee mugs, Class 21.

In the alternative, if money is a concern, you may enforce your mark without registering for additional classes. Common law trademark rights can prevent others from using your mark in a particular region, with specified goods or services, if you are already using the mark. Because federal registration can cost anywhere from $275 to $ 325 per class, common law enforcement may be a more economical choice for business promoters with limited start-up capital. However, while common law rights protects the mark, they do not provide the same presumption of validity and ownership as federal protection.

If you have any questions about obtaining a trademark, or about common law trademark rights, contact an experienced trademark attorney.

Veteran franchise owners advise initial start-up costs can become excessive if you are impatient. In other words, rushing to open your business almost always costs more in the long run. The following tips provide ways to reduce franchise start-up expenses by deliberate decision making.

Negotiate fees: While fees are generally the same so that all franchisees are treated equally, contact existing franchisees to see what their fees were. If there is a deviation, even slightly, find out the reason for the lowered fee, and see if you can qualify for the same discounted rate. This will put you in a better position to negotiate with the franchisor.

Package Deals: Some franchisors offer a package franchise, also known as a turnkey package. In these arrangements everything needed to begin operating the business is included for one price. For example, the franchisor or a third party may supply the inventory, the physical store, and all the equipment for operating the business. Turnkey packages benefit franchisees by saving time because franchisee does not have to acquire and organize the resources on their own. On the other hand, turnkey packages are more expensive because the added convenience adds to the price as well.

Shop For Equipment: When starting a franchise, many business owners fail to shop around for equipment. It is a good idea to get as many prices for equipment as possible in order to determine a reasonable price range. Also, by obtaining bids from multiple sources, you can negotiate with your selected supplier for even more savings.

Used Equipment and Fixtures: Purchasing used equipment for your business can translate into substantial savings. Just make sure the items meet your franchise guidelines. For example, buying used commercial kitchen appliances for a restaurant or used display shelves and fixtures for a retail store and greatly reduce the initial cost of operating.

Facing the reality of being laid off by your company, you may have considered the prospect of owning your own business. While there are various entrepreneurial avenues to financial independence, many people are turning towards becoming franchisees. But what businesses are available for purchase?

Many franchise websites offer lists of available franchises. In particular, you can narrow your search by industry type, stay-at-home solutions, or environmentally sound "Green" franchises such as cleaning services, which employ eco-friendly detergents that do not contain CFCs.

Many franchises offer a proven business model as well as a widely recognized brand. With the necessary capital and initiative, you can soon be at the helm of your own business.

Such online lists of franchises are a good starting point to determine what type of franchise you intend to procure. But instead of entering into any agreements online, you can avoid potential scams by contacting an experienced franchise consultant, and consulting with a franchise attorney.

Many people consider purchasing a franchise, but what about the other end of the franchising industry: expanding their own business and becoming a franchisor? Not all businesses translate into good franchises, however. So how can you determine whether your business will succeed as a franchise?

Good franchises share a few common elements. First, your business plan should include goals and objectives in order to identify your client profile. As the franchisor, keep in mind that your client is not the end consumer, but rather the individual purchasing your franchise. To advertise more effectively, determine the precise client demographic your franchise would most likely attract.

A business plan should be easy to replicate. One way to accomplish this is to have a plan featuring specific details, right down to daily operations and training. Franchisees are often people who want to run a business, but wish to forgo the trial and error inherent in building a business from scratch. Therefore, your product should meet their needs in providing a business ready for operation without undue experimentation.

Finally, determine how many stores a geographical region can support. Do not make the mistake of allowing too many franchises operate within a close proximity to each other. This inevitably results in competition among your franchisees.

Controversy surrounds a future Washington D.C. memorial dedicated to the late Dr. Martin Luther King Jr. The Martin Luther King Jr. National Memorial Project Foundation, a nonprofit organization, arranged the construction of the memorial and is paying for it through private fundraising efforts. The Foundation will transfer the memorial to the National Park Service upon completion. Dr. King's descendants charged the Foundation nearly $800,000 in licensing fees for the use of his words and image in the fundraising materials.

In response to the royalties payments, critics have blasted the King family for "profiteering." One professor even stated, "any family would be so thrilled to have their forefathers celebrated and memorialized in D.C. that it would never dawn on them to ask for a penny."

Those criticizing the King Family fail to acknowledge they have a right of publicity. In the past, when commercial merchandisers or publishers used Dr. King's words or image without permission, the Kings sued for their share of the income. The right of publicity is a common law doctrine, which allows an entity to charge royalties for, or prevent altogether, the commercial use of a protected name, likeness, or personality. Unlike copyrights or trademarks, the right of publicity does not expire after a certain number of years or death of the property holder. Rather, the right is descendible to the holder's heirs and lasts as long as it is enforced.

To date, the King Family has not charged for the actual memorial because it only features public domain materials, which are not protected and can be used by anyone. The Foundation may be liable to the Kings for future fees, however, if it uses words or quotes that fall within the Family's property rights. Some argue against this because the memorial will be given to the government, not a commercial entity. However, the King's should be permitted to charge at least a nominal fee in order to maintain their right of publicity.

In response to businesses' growing frustration with the limited availability of simple internet domain names, the Internet Corporation for Assigned Names and Numbers (ICANN) plans to sell new top-level domain (TLD) names.

Domain names have historically ended with these popular TLDs: .com, .net, and .edu. Currently, there are only 21 TLDs. ICANN proposes to make "personalized" TLDs available to any business with $185,000. Allowing a business to have their name become the TLD opens up an enormous, and possibly endless, combination for domain names. For example, a famous fast food chain can end their domain name in ".mcdonalds." Subdomain names for the TLD can also be available to identify a particular business, like "bankofamerica.bank."

The availability of personalized TLDs will become a nightmare from the intellectual property enforcement standpoint. The increasing number of domain names means additional time and money to monitor misappropriation, and to protect customers from infringers.

In attempting a preemptive strike against infringers, ICANN proposes that it will review applicants who must argue why they should be awarded a particular TLD. Grounds for rejecting an applicant include: having a TLD that is confusingly similar to another, pursuing an immoral TLD like .xxx, or seeking a culturally or politically insensitive TLD.

As the economy undulates up and down, many people seek ways to cut costs. Inventors are no exception. If you are thinking about registering a patent, consider the following tips to help reduce the application fees, which I also share with my patent clients.

Be up-front. Provide your patent attorney with a complete and detailed description of the invention early in the application process. This reduces the need for later revisions, which increases costs. Attorneys often charge based on the amount of work performed. Therefore the total application price may increase if there are numerous updates and revisions. For instance, I usually charge a flat rate for preparing the application, but any work that needs to be done after that is completed on an hourly billing rate.

Be knowledgeable. Patent attorneys are experts at intellectual property law, but they may not be as well versed in the subject matter of your invention. It is therefore crucial that you provide them with enough of this information to complete the patent application. Giving your attorney sufficient information about the particular field of science or engineering relevant to your invention eliminates the need to engage in extensive research, which may also drive up costs.

Be complete. Before applying for a patent registration, have a complete idea, with sketches or drawings of your invention. Adding new features and alternate embodiments after the attorney has already drafted the application can further impact costs. While you do not need a prototype to file an application, I usually advise that my clients build a prototype. Seeing the invention in action and testing it often reveals features that need tweaking and improvement. It can be costly to add these updated features once I have filed the patent application.

What do these tips have in common? Communication. As with many attorney-client relationships, it is important to be open with your attorney. In any event, your patent attorney will likely let you know if you have provided sufficient information or if more information is needed.

While many people avoid hiring an attorney by filling out one-size-fits-all legal forms, if you plan to file your own trademark application, you may want to reconsider. Assistance from a trademark attorney is a wise investment.

Each and every field on the trademark application form has legal significance. That is, every entry defines legal rights, and an inappropriate entry may grant or deny an unintended legal benefit. Often, trademark owners commit several common errors while filing their own application, such as not selecting the proper filing basis or submitting an improper specimen. Another mistake is filling out the application by seeing how colleagues have completed theirs, or filling it out "the way I always do." Cookie-cutter answers are not always appropriate for a new trademark application.

Further, trademark owners may declare that they have used a trademark in commerce when, in fact, they have not. In trademark law, commerce refers to use across state lines. Because the Trademark Examiners do not always verify whether this requirement is met, your registered trademark may, in fact, be invalid and unenforceable.

Have a trademark attorney help you file your application. A good attorney should sit down with you to discuss your trademark, and the best way to maximize your legal rights by properly filing your application.

Congress is in the process of enacting new patent legislation that would introduce a first-to-file system, a significant change to current United States patent law.

If the amendment passes, the effective date of an invention will be the date the application is filed instead of the date of actual invention. Currently, the United States is one of the few counties to follow the first-to-invent system. Under this system, inventors apply for patents after first conceiving an idea then diligently reducing it to practice, which can be achieved by building a prototype. The effective date is determined by the date the inventor conceived the idea.

The first-to-file system is not without its critics. The main critique is that the system is unfair to the small independent inventor because it lends an advantage to well-funded corporations, which have sufficient capital to win the race to the Patent Office. This argument is based on the notion that independent inventors often create their inventions before investing in a patent application. On the other hand, large companies are able to file multiple applications first, and then proceed with the most workable ideas.

Many of my clients are independent inventors, who tinker with inventions as a hobby. For this reason, I affectionately refer to them as "garage inventors." I oppose a first-to-file system for patent applications procedures, because I do believe that it would unfairly prejudice garage inventors. This certainly would discourage them from continuing to contribute their innovations and ideas to this country's economy.

In order to register your trademark with the USPTO, you will need to submit a specimen. You may have heard this term or read about it, but what exactly does it mean? Also, what is the proper way to submit a specimen for a trademark application?

First of all, a specimen is "an actual example" of your mark being used in commerce or with the identified goods or services. This is more than a drawing of your mark.

For trademarks used with goods, a specimen is an example of the mark with the actual product or packaging. This includes tags or labels, containers, displays, or simply a photograph of the product bearing the mark. Invoices, brochures, and other documents are generally not acceptable forms of specimens for goods. However, such materials may be sufficient for service mark specimens.

For service marks, a specimen should show the mark used in conjunction with sale or advertising of the service. Examples include, signs, brochures, business cards, or stationary. The only requirement is that the document containing the mark also references the nature of the service. For example a business card bearing your mark along with the phrase automobile detailing service is sufficient.

In any event, your specimen should not include the actual product (or service for that matter) and must be either flat and no larger than 8 ½ by 11 inches if filing by paper application or contained in a digital JPEG image if filing electronically.

For questions regarding protecting your works of authorship, contact an intellectual property lawyer today.

Wood, Atter & Wolf recently hosted an exhibit at the 2009 Business & Career Expo, hosted by the Jacksonville Regional Chamber of Commerce at the Prime Osborn Convention Center. Admission was FREE to the public!

We showcased Trademark and Franchise law with Alpha Growth Strategies, who are experts in business development and franchising. Together, we featured legal and business consultations regarding trademark registration, licensing, and business/franchise evaluations.

The Expo featured 250 exhibits, and attracted over 1500 people. For more information on next year's event, contact us.

Congress is changing the rules for tax breaks on charitable donation made to Haiti relief efforts in the wake of the devastating earthquake that ravaged the country earlier this year. The breaks are modeled after similar measures passed after Hurricane Katrina and the Indian Ocean Tsunami.

One bill allows Florida taxpayers to deduct any donations made to Haiti relief efforts through the end of February 2010 on their 2009 taxes. For those who texted a $10 donation to the Red Cross (by texting "HAITI" to "90999"), a phone bill showing the donation is considered sufficient proof. It is estimated that the Red Cross has received nearly $25 million in text message donations.

Congressional representatives have stated that the bill would provide an immediate benefit for those who have already given and an incentive for those who are considering it. But keep in mind that the deduction is only applicable if you itemize deductions.

A second bill would exempt cash donations from certain deduction limits for both businesses and individuals. It also would extend a special rule for corporations to deduct the market value of food contributions.

Find out more about this story at Tax Breaks For Haiti Relief Widening.

If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with tax planning, please contact our firm for tax planning legal counsel.

Money Central at MSN.com recently published a helpful article for those who never want to get audited by the IRS. Following these steps can keep you off the IRS's radar and out of the hot seat at tax time.

Tip #1: Double check your math

The IRS automatically checks and corrects arithmetic errors on your return, and a few mistakes is not going to trigger an audit. That said, too many mistakes could send up red flags that you weren't careful in your preparation, and that could lead to an audit. To select audit subjects, the IRS generally compares your deduction to the average deductions claimed by similar taxpayers. If yours are significantly different, they may decide to take a closer look.

Tip #2: Don't stand out from the crowd

Several groups are more likely to be audited than others. A highly-audited group includes the self-employed, who have more opportunity to hide income or falsify business expenses. Other suspect groups include those who make most of their income in cash, offshore credit card users and high-risk, high-income taxpayers.

Tip #3: Be prepared to substantiate

If you are audited, the IRS will probably focus on those items that are typically not adequately documented by taxpayers. These are generally automobile expenses, travel, meals and entertainment. Meals and entertainment expenditures over $75 require a receipt, less expensive meals can be tracked in a diary.

Finally, if you do get audited, coming in with a box of disorganized receipts will work against you. The more receipts you can produce and the more organized you are, the better your chances of coming through the audit unscathed. Read more tips about avoiding an audit at 5 ways to avoid an audit.

If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with tax planning, please contact our firm for tax planning legal counsel.

I recently gave a seminar entitled, "From Emblems to Empires," which teaches business owners how to use trademarks to produce, protect, and promote their business. In line with the business growth topics, Franchise Law professor and former restaurant franchise CEO, Jim Cataland talked about the characteristics of a franchisable concept. Bill Saccula, president of Alpha Growth Strategies, told us about businesses that are making the transition into becoming a franchise operation.

The event was held at Havana-Jax in Jacksonville, Florida. There was a networking mixer and heavy hors d'oeuvres were served. Admission was $15.00, but free for members of:

- JAAA (Jacksonville Asian American Alliance)

- IndoUS Chamber of Commerce of Northeast Florida

- Puerto Rico Chamber of Commerce of Northeast Florida

The event was a great success; hope you can make the next one.

When does a fan's admiration become copyright infringement? This question was at issue when J.K. Rowling, author of the famed Harry Potter novels, filed a complaint against Steve Vander Ark, a fan of the series. In ruling for infringement, a federal judged enjoined Ark from publishing his book, "The Harry Potter Lexicon" and awarded Rowling monetary damages.

Prior to writing the book, Ark created a website, also called "The Harry Potter Lexicon." The website defines and cross references characters and elements from Rowling's novels in addition to providing updates about Harry Potter film releases and events.

During the lawsuit, Ark defended his position with fair use. Fair use is a legal defense that allows an author or artist copy a limited amount of preexisting material, without permission, for incorporation into a new work.

However, the judge determined that the Lexicon was a mere compilation of Rowling's copyrighted work and did not qualify as a new expression for the fair use defense. Other examples of compilations include "Best Of" albums such as Best Hits of the 1980s. Generally, the creators of such compilations must either own the rights or have authorization to use the individual works.

If you have been involved in a franchise deal in the past few years, you may be more familiar with the latter term in the title: the Uniform Franchise Offering Circular, or the UFOC. However, as of July 2007, the Federal Trade Commission has replaced the UFOC with the FDD. Despite this change, the term "UFOC" is still widely and incorrectly used. Now, the FDD is the document that a franchisor must provide to potential franchisees prior to entering into a contract.

Like the UFOC, the FDD discloses details to potential franchisees in order to facilitate an educated buying decision. However, the FDD is different form the UFOC is several aspects.

Differences between the FDD and the old UFOC include different time requirements governing when such disclosures must be made. Also, unlike the UFOC, both parties can use passwords and electronic signatures to electrically sign an FDD.

Perhaps the most important change provided by the FDD is the requirement that the franchisor disclose more detailed information to the franchisee. Such newly required disclosures include information about parent companies; information regarding lawsuits or bankruptcies; whether any interest exists between approved suppliers and franchise executives; information about the types of distribution channels the franchisor or other franchisees use; and finally data regarding how many franchises were sold, terminated, or transferred over the past three years.

As you consider if and which franchise to purchase, be sure to pay close attention to the FDD. It should be an in-depth disclosure, with each paragraph having legal or strategic significance. For guidance with the UFOC, contact an experienced franchise attorney and a franchise consultant.

I'm sure you noticed this artistic image of Barack Obama during the 2008 Presidential Election. Street artist, Shepard Fairey, created it and based the work on an Associated Press photo found on Google Image. Now, AP claims that the artist copied their photo without the "required permission." Is this an example of copyright infringement? For now, the parties' attorneys are not disclosing much information; however Fairey's lawyer has brought mentioned the doctrine of fair use.

Fair use is a legal defense to avoid copyright infringement liability. It is not an exact rule; rather, it weighs various factors: the purpose and character of the use, the nature of the work that was copied, the amount the copyrighted work was copied, and the effect of the new work on potential markets for the copyrighted work.

Fairey's poster features a portrait of Barack Obama looking into the distance and splashed in red, white, and blue. At the bottom is an underlined word reading, "HOPE." Fairey said he made the picture specifically for the campaign after being requested to do so. However, the Obama campaign was hesitant about using an image to which they did not own the rights. Although the image was never officially used by the Presidential campaign, supporters distributed copies of the popular image at rallies and posted it on their websites

Now that the election is over, Fairey's work will be displayed in an art exhibit at the Institute of Contemporary Art in Boston as well as an exhibit at the National Portrait Gallery in Washington. The work is also being published in various books pertaining to the 2008 Election.

If you are an artist and wish to create a piece of artwork based on previous work, you may want to first consider getting authorization from the original owners. You can be sure that the details will be negotiated. Our law firm not only does trademark registration, but also negotiates licensing deals, drafts cease & desist letters, and is well-equipped to litigate a dispute. If you need assistance in these matters, contact us.

If you're thinking of acquiring a franchise, it is a good idea to first investigate the company. Although there is no uniform database that will inform you whether a company is operating legally or in good faith, there are a few leads to utilize in your investigation.

Find out if the company has registered with the Better Business Bureau or if anyone has filed a complaint against the company. You can discover if any complaints have been filed by contacting the Federal Trade Commission. Simply send a written request for information to the following address. Include in the letter the name of the company of interest as well as your name and address. Often, this is a free service to the public. The address: Freedom of Information Act Request, Federal Trade Commission, Washington, D.C. 20580.

Also, you can check out the applicable state agency for registering business opportunities. In Florida, franchisors are required to file with the Florida Department of Agriculture and Consumer Affairs, Division of Consumer Services.

Another fact to consider is whether the company has changed its name in the past. Businesses that alter their name and change their address of operation may have something to hide or wish to avoid accountability. Furthermore, it is a good idea to obtain the contact information of 10 prior franchise purchasers. Get in touch with them to find out how this franchise has dealt with others in the past. Also, make sure these references are legit and not just paid by the franchisor to give a good review. Finally, another good idea is to find out the number of other franchisees in your geographic area. It may not be a good idea to enter a saturated market.

Above all, when deciding whether or not to purchase a franchise, you can never be too careful. Not only should you consult with a franchise attorney to cover the legal requirements, but you should also consult with a franchise consultant. I recommend Alpha Growth Strategies, whose expertise can benefit any franchise across the country. They can be contacted at 417 Cheryl Court, Jacksonville, FL 32259.

There is a new way to stay informed of the news and notices from the United States Patent and Trademark Office by using an RSS feed. Now, instead of constantly checking the Official Gazette and Federal Register Announcements, you can receive real time updates on your email homepage.

RSS, or Rich Site Summary, is an information format that allows you to receive updates as they are published. You can use a favorite web mail homepage or an RSS feed reader to receive multiple lists of information by "subscribing" to each source. For example, with your Yahoo or Google homepage, you can get the latest headlines from the New York Times as well as recent blog entries from your favorite blog.

You can also subscribe to the Trademark Lawyer Blog by clicking the Subscribe icon on this page.

What happens to your intellectual property when you share it on a social network such a Facebook? For a short period of time, user content such as photos appeared to belong to the website.

Recently, Facebook briefly changed its terms of service. The new terms appeared to claim ownership in the intellectual property rights of any user content you uploaded, even after you deleted your account. Critics claimed that under this version of the terms, Facebook could potentially use your photos for commercial purposes or prevent you from doing the same.

After protest from users, Facebook CEO, Mark Zuckerberg, reverted back to an original version of the terms of use. The language granting Facebook such extensive ownership of your content appears to be absent. Zuckerberg stated in his blog that it is necessary to have some license over user content in order for the network to exist.

The team at Facebook is now in the process of drafting new terms of service that is more user friendly and easier to understand. Facebook users are encouraged to provide ideas for the new document. Read more about this topic here.

You may have seen advertisements wherein one brand name compares its product with that of its direct competitor. Such ads point out key differences between the products while displaying the competitor's trademark. You may have wondered how an advertiser can use another company's trademark without being liable for infringement. Also, if you own a business, you may have wondered if you are permitted to use your competitor's trademark in your advertisements.

Comparative advertising is widely used and even encouraged in the United States because it relays more information to consumers, enabling them to make better choices. If you plan to engage in comparative advertising, however, you should be careful to use the competitor's trademark in a way that is accurate and non-deceptive. You should also show that the products sold under the competitor's mark are different form yours. Also, do not give the impression that the competitor endorses or supports your product. Finally, in displaying the competitor's trademark in your advertisement, do not alter their logo or name in any way, and remember to include the proper designation such as "TM" or "®."

The most popular form of comparative advertising is when a product is "compared with other leading brands." Other brand names are not specifically identified, therefore avoiding allegations of improper use of the marks.

Another form of comparative advertising actually involves permissive use of the competitor's brand name. For example, if Cheer laundry detergent wanted to compare their product with Tide, Cheer may agree to pay Tide for permission to use the Tide logo.

It is possible to have a federal trademark, state trademark, or both. You can register a mark with the United States Patent and Trademark Office to obtain a federal trademark. By registering with the USPTO, you may protect your mark from infringement throughout the United States for a fee of $275.00 per class of goods or services. On the other hand, you can register your mark through The Florida Department of State, Division of Corporations to acquire a state trademark. In this manner, you may protect your mark from infringement in the State of Florida for a fee of only $87.50 per class of goods or services.

Why register in both? In the event of infringement, you can seek remedies under both the federal and state laws. I recommend filing both federal and state applications if your competition in your industry is fierce and lucrative. An example of this would be the technology industry, especially prior to the ".com" bubble bursting.

You must, however, qualify to file for a trademark registration. Be sure that your trademark qualifies for registration before paying the filing fees, since those are non-refundable.

Congratulations to Doctor Easy Medical Products! They recently registered trademarks for a name and logo with the Florida Department of State, Division of Corporations. They registered the same trademark and logo with the United States Patent and Trademark Office in November 2008.

The Elephant Ear Washer and logo depicting a blue elephant spouting water from its trunk identifies a product that Doctor Easy produces. The product is an ear-washing device, which incorporates a pump spray bottle and a plastic "elephant trunk" tube that is long and flexible.

Have you considered registering a trademark? Before seeking federal or state registration, you may want to determine the geographic area you'll use the mark and how much you are willing to pay for the application fee. For a federal registration, filing fees are $275 per class of goods/services. For a Florida registration, filing fees are $87.50. Filing fee costs differ from state to state.

For more information on state and federal trademarks, contact a trademark attorney.

If you are a trademark applicant or registrant with the United States Patent and Trademark Office, be weary if a company contacts you offering services such as trademark monitoring or document filing. Such companies may appear to be affiliated with the USPTO and often request fees for their services. They usually send official looking communications that include personalized information like your trademark file number or the name of your mark. Such items are public information. Do not be confused as these companies are not government entities. They merely attempt to profit from public naivety. In a recent news article, the USPTO has warned that it does not provide such trademark services and is not affiliated with any such companies that do.

Further, if you have employed an attorney to file your trademark application, then you should not receive any correspondence from the USPTO. Your attorney acts as your agent in dealing with trademark matters. Therefore, all USPTO communications should go to your counsel.

If a company or organization that appears to be affiliated with the USPTO has contacted you or requested fees, you may file a complaint with the Federal Trade Commission.

If you have any questions regarding the trademark filing process, or are unsure if you have received a communication from the USPTO, contact an experienced trademark attorney.

Small businesses rely on their proprietary assets, and many of these business depend on global transactions. However, less than one fifth of these businesses realize that their federal trademark and patent protections are limited to the United States. Are your IP assets protected abroad?

Without a doubt, profits fall prey to overseas counterfeiting and piracy. Counterfeiting is the creation of imitation products while piracy involves the unauthorized use or reproduction of software.

Stopfakes.gov is a great resource to help determine whether you should seek international protection. The website features different tool-kits to educate business owners about intellectual property (IP) protection in various foreign countries. Also included are instructions for filing a compliant against international infringers.

Strategy Targeting Organized Piracy (STOP) is part of a government effort with a two part objective. The first part is to strengthen IP enforcement throughout the world. The second part is to prevent IP crime throughout the world. STOP, along with other government organizations, provide protection to domestic businesses by regulating U.S. boarders and preventing the importation of counterfeited products, for example.

For more information on international trademarks or patents, contact a trademark attorney who understand the need to work closely with IP counsel abroad.

Worthington Millwork, based in Jacksonville, Florida, specializes in the design of architectural columns. Their website features a user-friendly approach to custom-designing columns; clients use the "3-Step Column Builder" to chose the base, column, and capital combination.

In addition to receiving trademark registration for their logo earlier this year, the company has recently been issued a Certificate of Trademark Registration from the U.S. Patent & Trademark Office for their name: Worthington. The mark consists of standard characters without a claim to any particular font, size, style, size, or color. This means that parties intending to use the name in any context--for example, over the radio, in different colors, or different fonts--will have to receive permission from Worthington Millwork.

Trademark registration includes many benefits such as the right to file a Complaint in federal court. By registering their name, Worthington has ensured that others will not be able to use it in the same class of goods or services. Improper use would lead to customer confusion and Worthington would have the power to take legal action. Thus trademark registration protects the company. Registration also protects the consumer by discouraging impostors from marketing inferior goods or services under the same name.

Are you interested in registering your company name or logo? Contact a trademark attorney for advice and help with the process.

"You got the right one baby!"

"The breakfast of champions"

"Reach out and touch someone"

These are slogans that identify Pepsico, Wheaties, and AT&T. Slogans and jingles can add enormous value to your business or brand by generating consumer good will and awareness. Not only will customers associate the slogan with your product or service, but the slogan may also evoke positive feelings. How many times have you had Mazda's "Zoom zoom zoom" song stuck in your head all day? A trademark identifies the source of origin of goods or services. However, trademark registration is not limited to names and logos. You can also register a slogan. In order to register a slogan as a trademark, the slogan must have acquired a distinctive character as a consequence of use and the slogan must associate, in the eyes of the public, between the goods or services and their origin. For more information about obtaining trademark registration for a slogan, contact a competent trademark attorney.

Clients from coast to coast often ask me: "Should I register my trademark with the U.S. Trademark Office or in with the state in which I do business?" My laconic answer is: YES!

It is possible to have a federal trademark, state trademark, or both. You can register a mark with the United States Patent and Trademark Office to obtain a federal trademark. By registering with the USPTO, you may protect your mark from infringement throughout the United States for a fee of $275.00 per class of goods/services.

On the other hand, you can register your mark with the state in which you do business. The Florida Department of State, Division of Corporations to acquire a state trademark. In this manner, you may protect your mark from infringement in the State of Florida for a fee of only $87.50 per class of goods/services.

Have you considered registering a trademark? Before seeking federal or state registration, you may want to determine the geographic area you'll use the mark and how much you are willing to pay for the application fee.

For more information on state and federal trademarks, contact a trademark attorney.

Caerus Institute of Open Innovation recently hosted a global summit on innovation, patents, and intellectual property. The event, "Intellectual Property Firestorm Meets Open Innovation 2.0", took place at the Illinois Institute of Technology in Chicago.

The summit brought together leaders from the intellectual property sector and the engineering industry to focus on methods of maximizing the value of mid- to large sized businesses. Experts discussed topics such as open innovation in action, open innovation 2.0, and the implications for intellectual property quality and quantity goals for high tech companies. Attendees also had an opportunity to network at a social/mixer when the conference concluded.

Open Innovation refers to the new idea that businesses can be more profitable by sharing information. Today, businesses are beginning to incorporate outside research and inventions with their own internal research. This is different from the traditional "closed innovation" model where businesses generally kept research and development information secret until market release. For instance, one of the principles of open innovation is working with smart people both inside your company and outside your company.

Before applying for a trademark, carefully consider the goods and services with which you plan to use your mark. It is better to be precise, otherwise you may lose your trademark protection.

During the application process and before the issuance of a registration number, a trademark applicant must declare whether the mark will be used in connection with all the goods or services listed in the application. Afterward, the trademark owner must periodically make similar declarations in order to renew the registration.

In the U.S., you can only register a mark for actual use. For example, you cannot declare that the mark is used in conjunction with all types of apparel when you only use the mark with accessories for women. Recent decisions from the Trademark Trial and Appeal Board (TTAB) suggest that inaccurate declarations of use may be considered fraudulent and invalidate the trademark in its entirety. Although fraud normally requires a willingness or knowing element, the TTAB has reasoned that trademark applicants are in a position to know whether their declaration of use is accurate. Therefore, any inaccuracies may amount to fraud.

Every line in the application form has legal significance! Carefully examine and document how you use or intend to use your mark in order to avoid an inaccurate declaration of use on your application. By omitting uses on your application or renewal, you may lose protection for the mark in connection with that particular good or service. But by being over inclusive, you may end up with no protection at all.

For assistance with registering trademarks or for information regarding proper filing methods, contact a competent trademark attorney.

Worthington Millwork, based in Jacksonville, Florida, specializes in the design of architectural columns. Their website features a user-friendly approach to custom-designing columns; clients use the "3-Step Column Builder" to choose the base, column, and capital combination.

The logo you see here has recently been issued a Certificate of Trademark Registration from the U.S. Patent & Trademark Office. In addition to the logo's design, the colors, blue and white, are essential features of the trademark.

First used in commerce in 1985, the mark identifies the brand and appears on the Worthington Millwork website, as well as their on their product catalog and company literature. For nearly 20 years, Worthington Millwork has been providing residential and commercial customers with architectural columns, wall niches, and many other functional and decorative architectural details.

Registering your company name or logo provides several benefits such as notice of your ownership and allowing you to bring an action in federal court if someone uses your trademark with the same goods or services for which it is registered.

Do you have a unique logo or name for your business? Consider contacting a trademark attorney to help with the process.

Eolas is suing Apple and 22 other companies, including Adobe, Amazon, Apple, Blockbuster, Citigroup, Ebay, Frito-Lay, Google, J.C. Penney, JP Morgan Chase & Co., Office Depot, Playboy, Staples, Sun Microsystems, Texas Instruments, Yahoo and YouTube.

The suit alleges that these companies are in violation of Eoals' US Patent Numbers 5,838,906 and 7,599,985, which involve fully-interactive browser embedded applications. The company has stated that they developed their technology over 15 years ago, long before the marketplace had heard of them or thought of using them.

Intellectual property rights are the foundation of most business models, especially those based on technology. The US patent system has been very effective in protecting innovators from competitors who would unfairly profit from the innovator's hard work.

If you have a business legal matter, please contact our firm for legal counsel.

Find out more about this lawsuit at Patent holder that won against Microsoft now targets Apple.

Yahoo! Finance recently published an article listing the top 15 franchise failures for 2008. They based the ranking on the rate of Small Business Association (SBA) loan defaults among franchisees. Yahoo! cited the troubled economy as the major factor for the failures.

Topping the list were Noble Roman's Pizza, with 53% of franchisees defaulting on their SBA loans, PJ's Coffee and Tea Café, with a 50% default rate, and Super Suppers, with 42% of the gourmet prepared meals franchise failing. Pizza franchises seem to have fared the worst out of all the business types, with five of the fifteen biggest failures being pizza franchises.

What can potential franchisees take way from this story? If you are considering opening a franchise, it is important to do your due diligence. Take a close look at which franchises are failing and why, before you take out an SBA loan. You should scrutinize the Franchise Disclosure Documents and the Franchise Agreement with the aid of an experienced franchise attorney. An attorney can also help you conduct research into the parent company's background, which is invaluable in helping you to better understand the financial aspects of the business, and to determine whether there are red flags pointing towards the business' demise. Please contact our firm for Franchise legal counsel.

To find out more about these unsuccessful franchises, visit Top 15 Franchise Failures.

Have you ever said, "Wrap it in cellophane" to ask for your food to be wrapped in plastic? How about, "Kleenex is softer to blow your nose" to recommend facial tissue to a friend, or "I need a xerox of this report" to request a photocopy of your document?

Cellophane, Kleenex, and Xerox are all trademarked brand names. By using a brand name to describe a generic product, you may be furthering trademark dilution.

Dilution occurs when a trademark becomes so overused that the trademark starts to identify a product itself, rather than the brand or company behind the product. Personally, I find that to be the case with "Band-Aid" and "Google." Why? Because we over-look the fact that the plastic bandage for our paper cut was not, in fact, made by Johnson & Johnson, even if we did ask for a Band-Aid. In addition, how many other Internet search engines are used when we're asked to "Google it"? Compare this with consumers' attitudes to other products: watch how noses turn up to cola that did not originate from the Coca-Cola company!

If a trademark becomes too diluted, it may become a generic term and lose protection under trademark laws. Companies on the verge of losing their protected status due to dilution will often launch extensive and expensive campaigns to prevent the public from using their trademarks in a generic fashion.

Are you concerned about the dilution of your trademark? Contact a trademark attorney for a consultation.

During the week of June 22-27, 2009, inventors and innovators gathered in Alexandria, VA for Innovation Week. The United States Patent and Trademark Office hosted this event at their headquarters in order to celebrate the important role patents and the USPTO play in the economy and the advancement of science and technology.

The event was open to the public and included dexhibits on display, technology specific presentations to patent examiners, and a multi-day conference for independent inventors.  Interested parties were able to attend Innovation Week as a spectator or were able to take a more active role in the event by participating as a keynote speaker, technology specific presenter, and patent exhibitor.

As the Internet becomes a more integral part of life and business, disputes inevitably arise over domain name use. A domain name, sometimes called an "Internet address" or "URL", is registered with a domain name registry. The Uniform Domain Name Dispute Resolution Policy (UDRP) provides trademark owners a remedy against infringing use of domain names.

Domain name registrars can adopt the UDRP by incorporating its language. In that case, you will be contractually bound to the terms of the UDRP when you sign a registration agreement. By registering a domain name, you represent that you are authorized to use that term. In other words, you warrant that the word you use for your domain name will not infringe on another person's protected trademark.

A valid trademark owner can file a complaint with an approved dispute resolution service provider if abusive domain name registration is suspected. Abusive registration includes using a domain name that's considered identical or misleadingly similar to a protected mark, in bad faith, and with out authorization from the owner of the protected mark. The offender may be required to submit to an administrative proceeding such as arbitration by an independent panel of the dispute resolution service. If the panel determines that the offender has violated policy rules, the offender's domain name may be suspended or transferred to the owner of the original trademark. In any event, offenders are not entitled to refunds from the domain name registrar.

If you suspect improper use of your registered trademark in an internet domain name, contact a competent trademark attorney to explore the possibility of filing a complaint.

In October 2008, federal agents arrested over 60 members of the California based Mongols Motorcycle Club. The three-year undercover operation was code named "Operation Black Rain ." In addition to the normal criminal charges, the indictment also sought to control the gang's "very identity": their own registered trademark.

The Mongols, investigators learned, operated more like a legitimate corporation rather than a typical gang of outlaws. Most notably is their ownership in intellectual property. "Mongols" is a registered trademark (Reg. No. 2,916,965) listed as being used with "services, namely, promoting the interests of persons interested in the recreation of riding motorcycles. The bikers have also registered as a trademark their logo, seen above.

These marks could be classified as "collective marks", that is, a trademark used to identify membership in an association. As an intellectual property attorney, I am appalled to find out that a registrant could be banned from using their own trademarks for the purposes they have claimed. Sure, they may be involved in criminal activity, but if they are, in fact, a group of people interested in riding motorcycles, punish their criminal acts, not the way they identify themselves. Is it even constitutional to prevent someone from identifying themselves as a member of a group? Is it rational to presume that every member of this group is a criminal?

In what was termed an unprecedented move, the U.S. Attorney filed a restraining order against the motorcycle gang to prevent them from using their name or trademark. The order was granted in United States v. Ruben Cavazos, et. al. The Federal judge stated that, as an asset to the defendant, Mongol Nation, the trademark would be subject to forfeiture as the defendants were convicted in criminal proceedings. Additionally, the court ordered defendants and virtually anyone connected to them–agents, family members-to surrender all paraphernalia containing the name and trademark.

What are your opinions in this matter? I welcome your thoughts and comments.

No "orphan works" are not the labors of a parentless child. Orphan works are copyrighted materials where the creator is difficult or impossible to find. If a reasonable effort is put into finding the creator, the work is considered to be orphaned. The problem arises when people want to make legitimate and good-faith use of the orphan work, but can't find the creator to enter into a licensing agreement.

In Canada, my native country, the Copyright Board of Canada has permitted the issuance of licenses on behalf of lost authors for the use of orphan works. As of August 2008, the Board issued 226 licenses, and only seven applications have been denied.

Here in the U.S., legislation is pending in Congress, intended to ease the orphan works problem. It is similar to the Canadian model, in that reasonable steps must be undertaken to locate the creator. If a license is granted to a good faith user, the legislation proposes to attach an orphan works symbol on the licensed material, in the event that the original author surfaces. If and when the original author steps forward, the good faith user will then have to pay reasonable compensation, the amount to be determined by the parties or by a court of law.

If you have expressed your creativity in any form, protect your expressions from becoming orphaned! Contact a copyright attorney to register your works.

"Pseudo mark" is a designation the U.S. Patent & Trademark Office assigns to marks that has an alternative meaning or spelling. For example, if the mark was comprised of H2O arranged in a cascading manner, the pseudo mark field in the USPTO database might display the mark as "water fall."

The USPTO assigns pseudo marks in their database to assist in the trademark search process.

The pseudo mark label does not show up on the registration certificate, and this categorization has no legal significance.

In general, the "TM" symbol used in conjunction with a trademark means that the party using that mark is claiming ownership of the mark, but has not registered the mark. The "R" symbol can only be used to show that a trademark has been registered.

There is a classification for trademarks for words that are literally associated with the products they identify. These marks are generic. Words like "milk," "car," or "towel" are all generic words, because they are the nouns of those particular goods. Generic marks can never be used as trademarks. It prevents others from using those words to label those products.

Just because a party uses the "TM" symbol on a generic mark does not make that word a trademark. In fact, three cases before the Trademark Trial and Appeal Board specifically stated that "The presence of the letters 'SM' or 'TM' do not transform an otherwise unregistrable designation into a mark." See In re Remington Products Inc., 3 USPQ2D 1714 (TTAB 1987), In re Anchor Hocking Corp., 223 USPQ 85 (TTAB 1984), and In re Minnetonka, Inc., 212 USPQ 772 (TTAB 1981).

Wonder if your trademark is registrable? Contact me for a consultation.

The trademark application can only be filed by the party who is the owner of (or is entitled to use) the mark as of the application filing date. The applicant may be any person or entity capable of suing and being sued in a court of law. "Entities" includes corporations, partnerships, joint ventures, unions, associations and other organizations capable of suing and being sued in a court of law.

If the president of a corporation is identified on a trademark application as the owner of the mark, when in fact the corporation is the owner, the application is void, because only an owner can file an application. However, if the president and a related company both use the mark, the president will be permitted to be named the owner, if in fact he or she really is using the mark.

If the applicant owns all (or substantially all) of the related company in such a way that he or she controlled that company's activities, there is unity of control, meaning that the the applicant and the company are considered to be a single source, and either could be named as the trademark owner for purposes of trademark application.

For more detailed rules on the trademark process, refer to the TMEP (Trademark Manual of Examining Procedures).

Trademark registration is a complex task, with legal implications lurking in every field on the application. Seek the assistance of a trademark attorney to guide you through this process.

The new Pro-IP Act makes current copyright laws more strict, in a sense. For instance, any property used to commit (or facilitate the commission of) a criminal offense involving copyrighted works may be seized. This provision amends §506 of the existing Copyright Act. Also, it makes it unlawful to export unauthorized copies of protected works from the U.S.

The new Pro-IP Act amps up enforcement efforts against counterfeiting and piracy. One of the ways it achieves this is that the Act creates a position, appointed by the President: the Intellectual Property Enforcement Coordinator (IPEC), within the Executive branch. The role of the IPEC is to develop & implement a Joint Strategic Plan to combat counterfeiting and piracy. In addition, the Act increases funding and resources to enforce copyright laws.

Not surprisingly, copyright holders, owners, and registrants are happy about these stricter laws that protect them and their works. However, public advisory groups and those advocating for more access to creative works educational settings are concerned that this new law does not benefit groups that it intends to benefit, namely, the public and students. Some criticisms are regarding the increase in expected litigation, making it cost-prohibitive to give the public or students access to a greater variety of creative works. Another concern is that the PRO-IP Act is of more benefit to big media companies, rather than the public and independent artists.

The new Pro-IP Act is the thankfully succinct nickname for the new "Prioritizing Resources and Organization for Intellectual Property" Act. Its objective is to protect innovation, and to better encourage creative contributions to the U.S. economy. President Bush signed the bill into law on October 13, 2008.

In an age where an 11-year old's act of downloading music can cost his parents a six-figure (and in some cases, seven-figure!) judgment, the new Pro-IP act makes it more likely that these judgments roll into the eight-digit categories.

Downloading music is not the only way that copyright laws can be violated. Any type of "copy and paste" work could be an act of infringement. This has widespread implications as more people, including children, are blogging, sharing ring tones, and personalizing web pages.

Now I've seen it all. ...all except for Elvis, that is. In browsing through the Copyright Office's FAQs, there is an answer to the question posed: "How do I protect my sighting of Elvis?"

Copyright protects creative expression on a tangible medium. That means that the expression must have some element of creativity to be protected. While works like sculptures, paintings, and musical scores are obviously creative expressions; lists and forms are among items that are not, and cannot be protected.

A "tangible medium" is something like paper, canvas, or digital recordings. So while a song you sing outloud is, in itself, not eligible for copyright protection, it can be if you write the lyrics on paper or save the melody to a CD.

So to answer the question about whether a sighting can be protected, the answer is unequivocally "No." However, while the sighting itself cannot be protected, if you took a photograph (a creative expression on a tangible medium), the photograph can be eligible for copyright protection. For the Copyright Office's detailed answer, click here.

Invention submission companies and product development companies help patent and trademark owners license and sell their inventions, products, and services. A cursory internet search of these terms will turn up a plethora of hits. Beware! Like any industry, there are legitimate businesses, and there are scams. When choosing one of these companies, keep these tips in mind:

Tip 1: Be familiar with what you own. If you have an invention, be sure you are familiar with the disclosures and descriptions in your patent. If you have a trademark, be sure that it is registered, and be aware of which specific goods and services your trademark will be identifying. If what ends up on the market is not what your patent or trademark claims to be yours, you might lose out on rights to the marketed products or services.

Tip 2: Research the company. Don't be shy about asking the firm for references and credentials. Once you get this information, follow up with them. Check with organizations like the Better Business Bureau. Find out if there is any pending litigation against them, and what issues are in dispute.

Tip 3: Be careful with your money. Almost every patent and trademark owner is enthusiastic and eager to start mass production and distribution. This excited ambition is easily exploited by dishonest enterprises. Be weary of large fees due in advance. When you do forward your money, know exactly how this money is being used. Have an attorney review any agreements before signing the dotted line. Once the deal is signed, be sure to ask for regular accounting statements, so you know how much in royalties you are earning, and you know which parties have licensed your patents and trademarks.

Licensing, marketing, and distributing your products involves an array of legal specialties, include contract analysis, negotiating licensing terms, and enforcement of ownership rights. Be sure to have an attorney familiar with all these facets to assist you.

In my previous post, I shared strategies the USPTO recommends for doing your patent search. Here are some practical tips I have to offer when doing your own search:

Tip 1: When doing your search, keep in mind that even if you don't find your exact invention, look at inventions that are similar to yours. You will need to cite these similar inventions in your patent application.

Tip 2: Remember that it's the CLAIMS that control what is patented, so verify that your invention has not been described in a prior claim. Use the rest of the patent document to interpret terms used in the claims.

Tip 3: Look at the figures and drawings. Pictures speak a thousand words. Save yourself the grief of reading through a patent document--your invention may be nothing like the patented invention, and you can determine this with one glimpse of the figure. Many people have trouble viewing the figures. You need to download the appropriate software; the links are available here at the USPTO site. I find that an easier way to look at full patents and images is to go to www.google.com/patents, type in the patent number I found from the USPTO database, and download the .pdf file.

Tip 4: When you find a patent that is similar to your invention, take a look at the column labelled "References Cited." These are patents that are similar to the patent you just found. Take a look at the patents under "References Cited" to see if they are similar to your invention too.

Tip 5: Take notes. Once you get into the research, you'll see what I mean! All the patents will begin to look the same, and you'll mix them up. List the name, patent/application number, and the title of the patent at the top of a 3-hole punched sheet of paper. Use the entire page to take notes and make your sketches. Highlight key terms on the patent document itself. Keep everything together in a binder, so you can re-arrange and insert/remove notes as needed.

Tip 6: Learn from prior patents. If the patent examiner finds prior art that makes your invention OBVIOUS or NOT NOVEL, you'll be out of luck. Find a way to distinguish yourself from the inventions disclosed in the claims of the prior patents.

Tip 7: Don't be afraid to ask for help. Find Patent and Trademark Depository Library (PTDL) staff in your state. They are available to provide training on U.S. patent search processes and research tools including the Cassis DVD-ROM system, the PubWEST database, and the USPTO website. You can also contact a patent attorney for advice and assistance.

I've often said that doing a patent search is a lot like making pizza from scratch: they are tasks that require some skill, but the skills can be self-taught or hired. Both tasks can also be excrutiatingly tedious, but they can also be educational and fun.

Before your invention can qualify for patent registration, there are two basic requirements that must be satisfied: your invention must be NOVEL and UNOBVIOUS. This means that it can not have already been invented, and that it can not be an obvious variation of something that has already been invented. The way to find out whether your invention is novel or unobvious is to do a patent search.

You can hire a patent attorney, patent agent, or a patent research firm to do the search for you. This will likely cost you several hundred dollars. In the alternative, you can undertake this task on your own. Here are seven tips offered by the U.S. Patent Office for doing your own search:

Step 1. Brainstorm keywords related to the purpose, use and composition of the invention.

Step 2. Look up the words in the Index to the U.S. Patent Classification to find potential class/subclasses.

Step 3. Verify the relevancy of the class/subclasses by using the Classification Schedule in the Manual of Classification.

Step 4. Read the Classification Definitions to verify the scope of the subclasses and note "see also" references.

Step 5. Search the Issued Patents and the Published Applications databases by "Current US Classification" and access full-text patents and published applications.

Step 6. Review the claims, specifications and drawings of documents retrieved for relevancy.

Step 7. Check all references and note the "U.S. Cl." and "Field of Search" areas for additional class/subclasses to search.

Stay tuned to my next blog post, where I offer my 7 tips to help you along your patent search.

Of the five titles of the Digital Millennium Copyright Act ("DCMA"), I have the most inquiries about Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"). This title addresses liability of online service providers ("OSPs") in copyright infringement actions.

With the advent of the Internet, instances of copyright infringement exploded. Copying another's work is as easy as a copy and paste from one source to another. Copyright owners faced the challenge of enforcing their rights against online infringers, who were either difficult and/or expensive to find, and once found, these infringers often had no money to compensate the original author/creator. As such, copyright owners turned to OSPs as parties in litigation, since OSPs were easier to find, and often had more financial resources to pursue.

The DMCA was signed into law in 1998 to better protect OSPs from the massive onslaught of infringement claims. In general, OCILLA created safe harbors for OSPs, such that OSPs could not be held liable for copyright infringement if its capacity was only as a passive conduit for Internet information, and if it did not know about or actively participate in the alleged infringement.

To qualify for these safe harbors, OSPs should do the following:

1) Designate an agent to receive infringement claim notices from copyright owners;

2) Designate a person to deal with those infringement claim notices;

3) Implement and execute a policy to terminate the accounts of repeate copyright infringers, and make this policy known to all Internet subscribers;

4) Take action, such as removing or blocking access to allegedly infringing content, once alleged infringement has been discovered; and

5) Accomodate and cooperate with measures that copyright owners take to identify or protect their copyrighted works (which could include use of watermarks or encryption to prevent copying and pasting of their work).

For more information, visit the U.S. Copyright Office website.

Around the world, all eyes would turn to Times Square in New York City on New Year's Eve. Millions would watch as Dick Clark entertained us, and finally counted down to the infamous dropping ball in the seconds before the new year arrived in the Big Apple.

He was born on November 30, 1929, but he alleges in a recent trademark registration that he has been using his name, "Dick Clark," since 1948 to "promote the goods and services of others by allowing sponsors to affiliate their goods and services with a television celebrity." (Reg. No. 3533080).

Dick Clark also holds the phrase, "Dick Clark's New Year's Rockin' Eve," to be his trademarks. He has one registration for the phrase's use in association with slot machines (Reg. No. 2688315). He also has a pending application for use of the phrase in conjunction with pre-recorded CDs, DVDs, and video tapes (Ser. No. 77612030).

Interestingly, his familiar sign-off catchphrase is not a registered trademark: "For now, Dick Clark. So long!"

Congratulations to Metro Diner, a local restaurant in the historic San Marco neighborhood in Jacksonville, Florida! They have registered three trademarks with the State of Florida: their name, their logo, and their slogan, "Where The Locals Eat."

The logo, as you can see, is in the signature dark and light green colors. Their slogan is very apropos to their typical customers who crowd the diner for breakfast and lunch.

Protect your business identity--register your trademarks today. Contact a trademark and business attorney to help you through the process.

A divorced, single mother of four is taking on the mogul of sexy lingerie. She can do it because she spent $12,000 to build a prototype and apply for a patent, which was issued in 2004.

Katerina Plew invented a bra featuring numerous loops and hooks, so the straps can be positioned in a combination that would keep them hidden under most styles of clothing. Plew sent a copy of her patent and various promotional materials to Victoria's Secret, in hopes that she could license the rights to them. About a year after Victoria's Secret cancelled their appointment with her, Plew saw her invention offered for sale at a Victoria's Secret store. Watch the AP video featuring Plew's story.

Plew took the proper steps to protect her invention. Take a look at the patent for this bra. Without this patent, she would not be able to prove how others are infringing upon how her invention is made. If you have an invention, I recommend that you build a working prototype, and seek the advice of a patent attorney before attempting to market or promote your invention.

Last summer I took a vacation far from my office in Jacksonville, Florida, to visit New York City for the first time. It was an interesting experience, to say the least. One of the most interesting sights, of course, being The Naked Cowboy.

The Naked Cowboy is not your average guitar-strumming entertainer. You can't miss him: he's the buff guy in white briefs, a straw hat, cowboy boots, and oh yeah, he spends most of his days in the middle of Times Square. If that's not surprising enough for you, he allegedly makes $5,000 per hour.

Recently, Mars, Inc. launched an ad campaign for their product, M&Ms. The TV commercial features a blue version of their candy coated chocolate, standing in Times Square, dressed in a manner that unmistakably is mimicking The Naked Cowboy.

The Naked Cowboy, whose real name is Robert Burke, is suing Mars, Inc. for $6 million for trademark infringement, unfair use of his image to endorse a product he does not support, and attorneys' fees. See the Complaint he filed here. The trademark infringement allegations are based on Burke's registered trademarks of the name "The Naked Cowboy," and his image (Reg. Nos. 2560456 & 2760208, respectively).

With the Complaint filed in February, it could be months or years until the case is dismissed, settled, or goes to trial. For updated information, contact me, and I'll see what information I can dig up.

The 3 Golden Rules in determining whether a business is franchiseable are whether: 1. There is a UNIQUE concept 2. The operations are SIMPLE, so that it can be replicated and easy to train 3. The business has a history of FINANCIAL SUCCESS

Gordon Ramsay, the notoriously razor-tongued head chef on Fox's reality show, "Hell's Kitchen," is hosting another show called "Kitchen Nightmares." "Kitchen Nightmares'" premise is much broader than that of its predecessor, because Chef Ramsay not only critiques the menu items, but also the way the business is operated. Each episode focuses on a quaint Mom & Pop restaurant in desperate need of an overhaul. Think of a marriage between "Trading Spaces" and "Nanny 911."

Chef Ramsay addresses problems by sampling the menu, rummaging through the inventory, observing the work habits of the owners, managers, and chefs, and considering the decor in the establishment. As expected, he will eat "the worst meal" he has ever had. Surprisingly, however, he will find moldy cherry tomatoes in the same container as fresh ones, or cooked chicken stored with its raw counterparts. And typically, Chef Ramsay will identify communication problems among those running the restaurant, as well as ambition or respect issues within those individuals.

Chef Ramsay's remedies often include simplifying the menu. In one episode, he made the ingredients easier to obtain by choosing supplies from local farmers. His remedy also includes defining and delegating very specific responsibilities to each owner or manager. And finally, he gives the restaurant a face-lift. It's worthy to note that he doesn't do any renovating, and he often leaves the fixtures as they are, but his creativity totally transforms the dining room atmosphere. In an episode with a waterfront seafood-themed restaurant, he added miniature fish bowls at each table, and gave diners a piece of rope with a guide to tying nautical knots while waiting for their food. The "little" things and a coat of fresh paint often made for an astounding presentation.

In essence, Chef Ramsay made these restaurants franchisable. By offering fresh, simple, yet gourmet menu items, and serving in an aesthetically pleasing dining room, he made the products and the service UNIQUE. By delegating management responsibility, streamlining food preparation, and implementing hygenic procedures for food storage, he made the business method SIMPLE. And finally, of course there are always panning views of the customer line out the door, to show that this is a FINANCIALLY SUCCESSFUL operation.

Are you a business owner? Would you like a Chef Ramsay-style consultation (minus the curt insults) of your operation to determine whether it is franchisable, or find out what you can do get it to that stage? Is your business at the stage to prepare it for franchising? Arrange a consultation with me.

Not all states see non-competition agreements through the same eyes. Here in Florida, as long as the agreement's restrictions are reasonable, the contract is enforceable.

Some states are much stricter. For example, Texas and Georgia courts make it very difficult to enforce covenants not to compete.

Most notably, California totally voids non-compete agreements between employers and employees, pursuant to Cal. Bus. & Prof. Code § 16600-16607.

If you need a non-compete agreement drafted, or if you have questions about an existing agreement, first check the terms of the contract to see if it mentions the state in which disputes are to be brought. If the contract is silent on that issue, contact an attorney in the state where the parties signed the agreement, or where the breach occurred.

Non-compete agreements (also called "non-competition agreements" or "covenants not to compete") are contracts wherein employers protect themselves from unfair competition, usually by former employees.

From my office in Jacksonville, Florida, there are times when a client will bring in one of these contracts, only to find out that the contract has to be enforced through the courts and laws of another state.

An excellent resource on where to begin when such an issue arises is to refer to Covenants Not To Compete, A State-by-State Survey (5th Ed.), Brian M. Malsberger, Ed. ABA Section of Labor & Employment Law (BNA Books 2006). Target.com writes a detailed description of the book.

So you're in business. You've registered your trademark, identifying the goods or services you're offering. Your business may be restricted to your city, or you may have customers/clients in big cities like Jacksonville or a small town like Palatka. In any event, one of the biggest mistakes my clients make is to file away their trademark's Certificate of Registration, and not give their trademark a second thought.

Florida Statute 495.071 prescribes the duration and renewal procedures for Florida trademarks. Here are some tips:

1. Registration expires 5 years from the date of registration.

2. Renewal can be filed as early as 6 months before the date of registration expiration.

3. Prepare a statement that your trademark is still in use in Florida, for the same class of goods or services as when you filed your registration.

4. Prepare to provide a specimen showing use of your mark in connection with those goods or services.

5. Set aside $87.50 (per class of goods & services) for the filing fee.

One of the biggest misconceptions is that an idea can be patented. Even a Yahoo or Google search about patenting an idea will lead people to believe that this is the case. Often, I will have a creative mind book a consultation with me to discuss patenting an idea for an invention. Truth be told, their ideas usually are very good ones. However, they have no idea how to make or build this invention. For example, if someone told me that a great invention would be a machine that would stop world hunger. Although it's a fantastic idea, unless this inventor knows how to build one, there is no patentable subject matter.

Building a business so successful that others want to emulate it is the ultimate American Dream. However, going big has its restrictions. Even without formally calling it a "franchise relationship," if the arrangement walks like a franchise, and talks like a franchise, chances are....

The Federal Trade Commission (FTC) defines a commercial relationship to be a franchise when:

(1) the franchisee is permitted to use the franchisor's trademarks;

(2) the franchisor has the ongoing right to control significant aspects of the franchisee's operation; and

(3) as a condition to continue this relationship, the franchisee pays the franchisor.

When a business relationship falls under this franchise relationship, the FTC requires that the franchisor discloses specific information to the franchisee. The items to be disclosed are outlined in 16 CFR 436.

One of the biggest misconceptions is that an idea can be patented. Even a Yahoo or Google search about patenting an idea will lead people to believe that this is the case. Often, I will have a creative mind book a consultation with me to discuss patenting an idea for an invention. Truth be told, their ideas usually are very good ones. However, they have no idea how to make or build this invention. For example, if someone told me that a great invention would be a machine that would stop world hunger. Although it's a fantastic idea, unless this inventor knows how to build one, there is no patentable subject matter.

Assuming that this idea for an invention is novel and unobvious, there is a requirement that the inventor can describe how this invention is built or put together. This is because a patent is like a recipe: anyone with skill and knowledge in the field of that invention should be able to pick up a patent, and understand how a workable version of this invention is built.

Just because you know how to build the invention doesn't mean you need a prototype to get a patent.

Questions about whether your invention is patentable? Contact me for a consultation.

The Trademark Expo was held recently at the U.S. Patent & Trademark Office headquarters in Alexandria, Virginia.

Trademarks play a critical role in our marketplace both here at home and around the world. From the moment our GE alarm clocks wake us up, until we turn off our Sony TVs after the late night news, we are bombarded with brand names. The Trademark Expo pays homage to this enormous influence on our choices of goods and services by featuring displays, exhibits, company booths, roaming mascots, and seminars.

The Expo is free and open to the public. All individuals, businesses, and educational institutions that hold a valid registered U.S. trademark are encouraged to apply to exhibit.

Last year's Expo attracted 7,000 people.

Being a patent attorney, I feel the pressure of people's expectations that I be the first to hear about new inventions. While procrastinating on the Internet, I couldn't help but notice a recent article about the Top 10 Wacky Inventions for the Home. It includes a fruit bowl that emits UV light, allegedly to keep fruit fresher for longer, a device that tells you what mood your plant is in, and a waterproof PC.

We've all heard that necessity is the mother of invention, but in this case, the desire for trinkets is the cool big sister coming home from college, and wowing you with what she's learned in Science 101 classes.

Doctor Easy Medical Products' trademark, seen above, was recently registered with the U.S. Patent & Trademark Office. This logo is used to identify a product with a plastic tube that directs a stream of fluid into the ear to flush out ear wax. The inspiration for the term "elephant" came from the fact that the plastic tube was long and flexible, resembling an elephant's trunk.

This logo helps consumers identify Doctor Easy Medical Products as the authentic source for the ear washer, as well as other health & beauty products. To register a logo, name, or slogan that helps consumers identify your goods or services, consult with a trademark attorney.

The new disclosure requirements came into effect in July 2008. The FTC has an excellent FAQ page to address questions concerning this amendment. It is a fantastic resource for franchisors and franchisees.

Just because another party has registered a trademark does not necessarily exclude you from using and registering that trademark as well. Trademark protection depends on the scope of use, extent of use, use of the trademark in a geographic location, and association with a particular set of goods or services, among other factors.

Furthermore, a registered owner may agree to allow another to use the registered trademark, or grant a license to another to use that trademark. Permissive use or licensing involves negotiation of fees, costs, use, and royalties.

On the other hand, registration does not guarantee exclusive ownership. Rights associated with registration may cease if the owner stops using the trademark (either entirely or for the purposes stated in the application for registration), if the owner fails to pay maintenance fees, or if another party can prove that the registered owner was not, in fact, the first to continuously use the trademark to identify goods or services.

The Federal Trade Commission requires that a franchisor provides potential franchisees with Franchise Disclosure Documents compliant with 16 CFR 436 at least 14 calendar-days before the prospective franchisee signs a binding agreement with, or makes any payment to, the franchisor.

The itemized list of information franchisors are required to disclose to potential franchisees are:

1. The Franchisor and any Parents, Predecessors, and Affiliates

2. Business Experience

3. Litigation

4. Bankruptcy

5. Initial Fees

6. Other Fees

7. Estimated Initial Investment

8. Restrictions on Sources of Products and Services

9. Franchisee's Obligations

10. Financing

11. Franchisor's Assistance, Advertising, Computer Systems, and Training

12. Territory

13. Trademarks

14. Patents, Copyrights, and Proprietary Information

15. Obligation to Participate in the Actual Operation of the Franchise Business

16. Restrictions on What the Franchisee May Sell

17. Renewal, Termination, Transfer, and Dispute Resolution

18. Public Figures

19. Financial Performance Representations

20. Outlets and Franchisee Information

21. Financial Statements

22. Contracts

23. Receipts

Exhibits

A. Franchise Agreement

For help preparing or reviewing these documents, contact an attorney who is familiar with Franchise Disclosure Documents and Franchise Agreements.

So your business is successful. You have a proven business model with effective marketing and distribution systems in place. You are producing profits and steadily capturing market share. Yet, you ask yourself, "How can I take my operation to the next level?"

On the other hand, you may be trying to start up a business, but be tired of re-inventing the wheel. You want to own your own business, but don't know what policies and procedures to implement. You wonder, "Isn't there an easier way to improve my chances of success?"

Franchising can sometimes be the fitting solution. A franchise is a relationship between a franchisor and a franchisee. Franchisors are those who seek to expand their reach beyond a local or regionalized market. Franchisees are the ones who get access to an established brand, a proven business model, and marketing and supply support. In exchange, the franchisor collects a front-end fee, ongoing royalties, and the ability to increase brand recognition and market share on a larger scale.

Entering into this relationship, either as a franchisor or franchisee, has many legal implications. The documentation, including the franchise agreement and the disclosure documents (regulated by the Federal Trade Commision). Whether starting a franchise or buying into one, talk to a franchise attorney about these important documents.

Trademark rights continue as long as the owner continues to use it consistently to identify goods or services. A trademark owner can lose rights to the trademark through abandonment of the mark, non-use of the mark, or by granting naked licenses. Tally-Ho Inc. v. Coast Community College District, 889 F.2d 1018, Footnote 6 (11th Cir. 1989).

Getting our minds out of the gutter, "naked licenses" have nothing to do with nudity. Naked licenses are when a trademark owner licenses the use of a trademark without controlling the quality of the goods or services provided by the licensee. If consumers cannot expect consistency of goods or services associated with a trademark, in effect, consumers will cease to attribute those products with that mark. This is essentially the same as non-use of a trademark.

Quality control is vital in trademarks and licensing, which is why many franchises thrive. The intolerance for anomalies assures consumers that they can depend on the goods and services to be exactly as they expect. This high level of predictability is the secret to many franchises' success.

So trademark owners, don't be caught with your pants down when licensing the your rights. Ensure that your licensees are delivering the same quality of goods and services that you have originally attached to your trademark.

While monogamy is the prevailing standard accepted in our society when it comes to spouses and boyfriends or girlfriends, this is not necessarily so when it comes to a license for your patent or trademark.

When you offer the rights to use your patent or trademark, in exchange for fees and royalties, you are licensing those opportunities to another. That other party is called the licensee.

A monogamous license, more appropriately termed, an exclusive license, is where you have only one licensee. Typically, licensees agree to paying higher fees and royalties for the benefit of being the only ones who are allowed to benefit from the intellectual property. NBC was hugely successful last month, because they were the exclusive network to provide Olympic coverage.

There are times, however, where it benefits the patent or trademark owner to enter into a licensing agreement with as many licensees as possible. This is a non-exclusive license. Although a licensee will probably pay less in fees and royalties, the patent or trademark owner benefits from collecting this revenue from multiple licensees. Franchises are an excellent example of non-exclusive licenses to numerous franchisees for the use of trademarks, patents, and other proprietary assets.