Articles Posted in Intellectual Property

Protecting intellectual property through patents and copyrights is an important investment for many Texas companies. With the popularity of social media, some business owners may wonder how they can protect hashtags that they use for Internet marketing campaigns. Although hashtags do not qualify for patent or copyright protection, the words or short phrases in a hashtag may qualify for trademark protection.

The U.S. Patent and Trademark Office may allow a business to trademark a word or phrase that is preceded by a ‘#” symbol. To qualify for a trademark, the combination of symbols must be used to distinguish a company’s products or services from those of other companies. If the hashtag phrase is only used on social media websites or is too generic, the USPTO may refuse to register the trademark.

Before deciding to trademark a hashtag, a business owner might want to think about whether or not the hashtag is worth protecting. In general, it takes about six to eight months for a trademark to be registered, so the business owner should consider how long they plan to get use out of the trademark. It is also important to note that enforcement of a hashtag trademark can sometimes be detrimental to a company’s public image. Although Taco John’s was able to successfully enforce its ‘Taco Tuesday” trademark in 2010, the company received a lot of public criticism for its actions.

American Well, a telehealth company, filed a lawsuit on June 8 against its rival Teladoc, which has a corporate office in Texas, claiming that the company infringed upon its patent on technology that links telehealth service providers with consumers. A co-founder of American Well has held the patent since 2009.

In the lawsuit, which was filed in Boston, American Well accuses Teladoc of incorporating each element of the patent into its technology. These elements include accessing medical service providers’ information, receiving indications of newly available providers, receiving consumer requests for consultations with providers, identifying available providers and establishing real-time communications between providers and consumers.

American Well’s claim is based on assertions in Teladoc’s S-1 registration statement. Teladoc said in the filing that it does not think its business materially depends on trade secrets, trademarks, copyrights or patents.

Texas music fans may be interested to learn that on May 27, a judge ruled that a class action lawsuit against the satellite radio company Sirius XM could go forward. The lawsuit deals with songs recorded prior to Feb. 15, 1972 that Sirius XM has not paid royalties for because those songs are not protected under existing federal copyright laws.

The plaintiff in the lawsuit is a company controlled by two of the founding members of the band The Turtles, known for their many popular 1960s songs including “Happy Together.” Certifying a class action means that other artists can be brought into the lawsuit as well.

The situation may have implications for Pandora in addition to Sirius XM, and several other lawsuits exist against both companies in Florida and New York. Some states have separate laws that do protect artists in these types of situations, and some artists have successfully obtained copyright protection under those laws despite the lack of federal coverage.

Texas football fans might remember InVinceable, which was trademarked during the college career of quarterback Vince Young. It is an example of a trademark arising from an image or phrase that suddenly becomes part of the public consciousness, in contrast to planned marks which are more common. Indeed, intellectual property rights often represent the combined efforts of business sales gurus and marketing personnel. In either case, they must be protected.

Trademarks are administered in the United States by the U.S. Patent and Trademark Office. They are meant to prevent consumer confusion and protect their owners from infringement. Generally speaking, trademark rights inure as soon as a product or service enters the stream of commerce bearing the mark. In some cases, though, an individual or business may want to secure a mark even before putting anything up for sale. The USPTO allows applicants to file notice of their intent to use a certain mark. Once the mark is used in commerce, an intent-to-use application establishes the date of filing as the date of first use.

The U.S. Copyright Office may also protect business owners who are not yet ready to sell under their mark. Copyright law protects artistic designs such as logos even if they are not associated with a product or service. Regardless of the type of intellectual property, enforcement is key to protection. Owners of a trademark, copyright or patent must diligently enforce their intellectual property rights or risk losing them.

Many Texas businesses have trade secrets, such as formulas, computer codes or others, that they have taken reasonable steps to protect. In the event a person or another business violates the business’s trade secret protections, either by reverse engineering or through other means, the owner may take legal steps in order to obtain appropriate remedies.

The business may seek an injunction from a court to prevent either a threatened misappropriation of a trade secret or to stop any further use of one that has already been stolen. Upon the court’s issuing an injunction, the defendant will be prohibited from any use of the trade secret. If it violate the court’s orders, it can face significant penalties.

The business may also seek damages in addition to injunctive relief. Damages may include both the actual losses suffered due to the trade secret violation as well as amounts for any unjust enrichment the violator obtained through using the trade secret as well. Finally, the owner of the trade secret may also seek and obtain attorney’s fees that it has incurred.

Dallas businesses may be interested in the story of one legal battle that has been resolved after over a decade. Now, the nation’s highest court has weighed in on the question of whether one company was violating the intellectual property rights of another.

After 16 years of litigation through various levels of the justice system, the Supreme Court has made a final decision on a dispute between two companies with similar-sounding product names. The plaintiff, a company that produces a fastener known as Sealtight, primarily for aerospace companies, sued the defendant, who makes a product called SealTite, for trademark infringement. SealTite is a type of screw used in building construction. The prior ruling by the 8th Circuit dismissed the plaintiff’s infringement claim, which was then taken up by the higher court.

The major issue decided by the Supreme Court was whether a finding by the Trademark Trial and Appeals Board would preempt further litigation of the matter. The TTAB is often the first place that trademark disputes are heard when one trademark holder contests another company’s registration attempt. In this case, the TTAB decided that the defendant’s registration would be likely to confuse consumers and denied their registration. Now, the Supreme Court is saying that this original TTAB ruling may prevent higher courts from relitigating the same issue if the issue is the same in all important aspects.

On March 16, a federal jury determined that Apple did not breach five patents regarding wireless technology. This decision follows a February ruling in a separate Texas case ordering Apple to pay millions for patent infringement.

The patents in question in the March decision were under the ownership of Core Wireless, a subsidiary of Conversant Intellectual Property Management. The company originally claimed in 2012 that Apple violated more than 12 of its patents. Over the course of the case, Core Wireless reduced its claim to five patents, focusing on the communication protocols that Apple uses in its iPads and iPhones. Court documents show that Core Wireless wanted Apple to pay $100 million in damages, but the phone and tablet maker argued that if it was forced to pay anything, it should be less than $1 million. The jury took Apple’s side.

Conversant and Core Wireless own and buy patents, generating revenue through licensing. In this lawsuit, the patents were previously under Nokia ownership. Conversant purchased the patents in 2011. It is unclear if Nokia would have gained anything from Core Wireless winning the lawsuit. This case is one of many lawsuits that have been brought against Apple over the past several years. In February, a federal jury ordered the company to pay Smartflash $533 million for the infringement of three patents. A few days later, Ericsson filed seven lawsuits in Texas and submitted two complaints to the U.S. International Trade Commission, claiming that Apple has breached 41 of its wireless technology patents.

It is critical for small business owners in Texas to safeguard the brands and assets of their companies, including trademarks. Those who lack trademark protection could end up in legal battles that put them and their businesses in financial jeopardy. Small business owners may take certain steps to ensure that this does not happen.

The first step is choosing a strong, unique trademark that does not use generic terms or markings. The name needs to be specific to the nature of the company’s operations. Next, the owner should do research to ensure that the trademark chosen does not infringe upon other businesses’ marks. This can help prevent the entrepreneur from having to defend a claim of infringement. After that, the trademark that is chosen should be registered with the U.S. Patent and Trademark Office, which is relatively easy and inexpensive. Without the registration, another business could claim the trademark as its own and then sue the original business that used it.

To protect a small business from trademark infringement even further, the owner needs to build a brand around the company and make it as successful as possible. Brands that are widely recognized are less likely to be targeted than those that remain in a niche and are not as well known. The final task is monitoring the environment to ensure that competitors are not trying to infringe upon that success. Rivals who do may be waiting to see if the small business owner will fight back.

Investors in Texas might benefit from understanding more about the court case ordering Symantec Corp to pay $17 million for patent infringement. The case was decided by a federal jury on Feb. 6 in Delaware. Intellectual Ventures was the plaintiff in the case, seeking $298 million in damages for two patent infringements. The jury awarded the patent licensing company $17 million for damages from the two violations, but cleared Symantec of the third alleged patent violation.

Intellectual Ventures is currently one of the largest patent holders in the world, and in addition to its long-standing strategy of licensing a diverse portfolio of patents, the company has begun fling lawsuits against organizations violating its patent rights. Chief litigation counsel at Intellectual Ventures described the outcome as exemplifying the firm’s commitment towards protecting customers and inventor interests. According to Reuters, Symantec purchased one of the patents for less than $1 million.

During 2010, Intellectual Ventures accused Symantec of patent infringement that involved Norton antivirus, and other Internet and email security products. Three other companies that were sued by Intellectual Ventures at the time as Symantec but they opted to settle their cases outside of court. A spokesperson from Symantec expressed relief that the jury awarded the plaintiff much less then they requested. However, the Norton antivirus provider plans to explore alternative remedies that may be able to help reduce the amount of damages even further.

Texas observers of intellectual property law and associated litigation may have noted a high-profile case between the California-based manufacturers of Monster Energy Drinks and the seminal New York City hip-hop group, the Beastie Boys. Although the legal team for the Beastie Boys has won the original case, they are now attempting to force Monster to pay the legal fees.

A federal jury convened in Manhattan in June and awarded the Beastie Boys $1.7 million for the unauthorized use of some of their music in an online advertising campaign for Monster. The members of the band appeared personally in court to reaffirm their career-long commitment to eschewing advertising usage of their music. The jury found their arguments compelling and affirmed their legal right to compensation. However, the price of the representation and related costs necessary to reach that verdict was reportedly far more than the amount of the compensation granted.

The counsel for the Beastie Boys allege that the legal team for Monster Energy Drinks deliberately made the case longer and more difficult than it needed to be in order to punish the plaintiffs. They pointed to Monster’s apparent reluctance to engage in negotiations in good faith and efforts at overturning the verdict. They request that Monster be required to pay $2.4 million dollars in legal fees on top of the amount of the original verdict.

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