Not all trademarks are created equal.  Some trademarks are ‘stronger’ in the legal sense than others, meaning that some marks are easier to register and enforce than other marks.  Trademarks need to be unique, distinctive, and not easily confused with other existing trademarks when they are applied to a product or service in order to be registerable with the United States Patent and Trademark Office (“USPTO”).

Trademarks are intellectual property that are classified into one of four categories of marks, based on how legally strong they are. The categories, listed in increasing strength, include: generic marks, descriptive marks, suggestive marks and fanciful or arbitrary marks.

Generic Marks

Generic marks are the weakest category of marks, and are not registerable or enforceable against others who use them. Generic marks are commonly used phrases associated with goods or services. Generic marks can either be generic at the outset of their use or become generic through improper use over a prolonged period of time. For example, using the mark SODA for sweet carbonated beverages would be a generic mark as the public associates the term “soda” with sweet carbonated beverages; the mark is considered generic at the outset of its use in this situation.

Marks that were once valid trademarks can further be reduced to a generic mark if the unauthorized use of the mark goes unpoliced. Distinctive, suggestive or fanciful or arbitrary marks can turn into unenforceable generic marks if the public commonly uses the mark in association with a particular good or service, and the trademark holder fails to police the use of its mark for an extended period of time. Common examples of once valid trademarks turning into generic marks include ZIPPER, ESCALATOR and ASPIRIN.

Descriptive Marks

Registerability and enforceability of descriptive marks is hit-or-miss, and that is why they are considered to be fairly weak marks. These types of marks describe some aspect of the product or service that the mark is being applied to. Descriptive marks fall into two subclasses: merely descriptive, and distinctive. Merely descriptive marks are not registerable, as they merely describe the product or services that the mark applies to (i.e., an image of brooms, vacuums and dusters for a cleaning service). However, a notable exemption allows descriptive marks that acquire distinctiveness to gain trademark protection. Distinctive marks can gain distinctiveness through extensive use in commerce for a period of 5 years or more.

Suggestive Marks

Suggestive marks are fairly strong marks, as they suggest something about the product or service to which they are applied, but do not describe the product or service. Some examples of suggestive marks include RAVISHING for a cosmetic line (suggesting that the make-up will make the user look ravishing).

Fanciful or Arbitrary Marks

The strongest marks are ones that are fanciful or arbitrary. These types of marks are easy to register and enforce based on their uniqueness.

• Fanciful marks are marks that are created from imagination. They have no definition in the dictionary, are completely unique, and are unusual. An example of a fanciful marks would be CHEMZA for use with selling hats. It is a made up word, with no significance other than being used as a trademark for selling hats.
• Arbitrary marks are marks that generally are a known thing applied to a completely different thing or service. Good examples of arbitrary marks include the mark KITTENS for use with hair accessories or MAJESTIC for weight loss management services.

For more information on the strength/distinctiveness of your mark, how to register a trademark or should you need advisement in an intellectual property matter, please reach out to our office.

For quite some time the paparazzi in California has relied upon the use of drones – which are unmanned, aerial devices that are operated remotely by a user or operator – to capture photographs of celebrities from afar, usually by piloting the unmanned drones over the private property owned by the celebrities to capture the shot. A new California bill aims to provide celebrities with a little more privacy by prohibiting the use of drones over private property, the LATimes reports.

Drone regulation has been a high-popularized issue in the area of technology law lately, especially in California.  Not only have the paparazzi made quite a bit of use out of drones for photography purposes, but others have taken up flying the contraptions to take photos of the wildfires that have been ravaging California.  The drones have even interfered with firefighting efforts in the recent past.  There have also been problems with drones being used to transport contraband into prison environments. However, many civilians enjoy drone manipulation as a hobby, and do not use their drones to break the law.

New Bill Puts Stop to Paparazzi Invasion of Celebrities’ Privacy

The bill, AB 856, deems flying a drone onto the private property of another for the purpose of taking photographs of video to be a physical invasion of privacy that will not be tolerated.  While previous versions of the bill would have made flying a drone within 350 feet over private property without consent a trespassing violation, the final version of the bill, which will be signed by Governor Jerry Brown in the upcoming weeks, is not as extreme.

Trespass is codified in California Penal Code Section 602 et seq. and already covers a variety of very specific trespassing violations.  Adding another trespass provision for the use of drones to take pictures of someone else, particularly a celebrity, would add more provisions to the already jumbled and dense area of trespass crimes.

The governor rejected many earlier versions of the drone bill as they would have created new crimes by adding new trespassing provisions to the law along with new punishments. In addition, making drone flying for photography purposes would unduly place restraints on a burgeoning drone industry. Rather, the new bill sets out to redefine the existing law to better incorporate invasions of privacy committed with a drone camera.

What Are The Existing Laws on Invasion of Privacy?

Invasion of privacy is based in tort law, and in California case law has established four tort actions based on invasion of privacy:

1. Intrusion into private places, conversations or other matters,
2. Public disclosures of private facts,
3. Presentation of a person to the public in a false light, and
4. Appropriation of another’s image or personality.

Shulman v. Group W Productions, Inc., 18 Cal.4th 200, 214 (1998). The use of drones to take unauthorized photos of celebrities in their homes and on their personal property would be an intrusion into a private place and under California Civil Code Section 1708.8, a person is liable for physical invasion of privacy when they knowingly enter the land of another person without permission for the purpose of capturing any form of visual image of the person whose privacy is being invaded.

This bill is yet another example of how the law must catch up at times to address the legal implications a new technology presents, and it highlights the importance of obtaining proper legal advisement while navigating the complicated world of technology.

If you are working with a new technology or other product/service and do not yet fully understand the legalities and implications of your venture, it is especially important to retain an experienced business attorney for advisement on how to limit your liability and protect any intellectual property rights.

The healthcare industry is a bustling marketplace for new ventures to enter these days. Americans are demanding better quality care at a better price, and recent healthcare reforms have paved the way for disruptive technology and new businesses to make a move into the healthcare industry. There are a number of unaddressed needs and challenges in our healthcare systems that are waiting for the right innovative solution to come along.

Be Mindful of Laws and Regulations That Apply to Your Business

As you work to move your new business into the healthcare industry, keep in mind that it is one of the most highly regulated industries out there, largely because people literally depend on healthcare products and services to save their lives and keep them healthy. Not only do new ventures in healthcare need to build their businesses within the parameters of the Affordable Care Act, but many also need to engage with the Food and Drug Administration (FDA).

While these rules and regulations may seem difficult to navigate and poses potential hurdles to developing your business, they are manageable and your business will get through them. When you need help navigating the law or other regulations that affect your business, you should contact a business lawyer that specializes in those specific matters.

Join a Healthcare-Specific Incubator or Accelerator

There are a number of healthcare-industry specific startup incubators and accelerators that new ventures can apply to and utilize to help get their business off the ground. These incubators help fledgling companies make contacts with potential investors and industry leaders, assist these companies with preparing grant applications, and can offer guidance and support on how to make it big in the healthcare industry. Incubators help to develop small companies into sustainable businesses, and many new ventures use incubators as a stepping stone, and sometimes even a spring-board, to further the success of their business.

Success Doesn’t Happen Overnight

Breaking into the healthcare industry is never quick work. New companies and startups have to demonstrate that they have a useful and practical new product or service that fills a need in the market and also need to build a name and reputation for themselves. There are two main impediments that can delay how quickly a new venture can make it big in healthcare.

First, there is the time and energy requirement that goes into familiarizing others with your products and services, building relationships with industry partners, and creating a network and support structure around your business. Getting noticed isn’t easy work, and while some new entities get a lot of attention when they first enter the healthcare industry, for many new companies and startups it can take several years to establish themselves. Be persistent, resilient, and adapt and grow your business, even if it is slowly – all progress is good progress when trying to make it in the healthcare sector.

Second, regulatory requirements can take a long time to get through as the FDA is not known for its speediness. The good news is, working through the regulatory processes isn’t so much about being difficult as it is about being lengthy. While there is a lot of red tape, your business will get through it if you just stick with it and are patient.

When you need help navigating the law or other regulations that affect your business, you should contact a business lawyer that specializes in those specific matters.

Many startup companies don’t realize the importance of hiring a business attorney.  Considering today’s technology-focused world, there are numerous reasons startup companies should spend the money for a lawyer who is skilled in copyright and intellectual property laws, trademarks, incorporating, agreements, contracts, and more.  In addition, many new companies make decisions without knowing whether they’re legal, just pushing the envelope, or even perhaps breaking the law.  As a Los Angeles startup company, do you really need to consult with an experienced Los Angeles business lawyer?  The answer is simple:  absolutely.

Here’s a quote you may or may not be familiar with by Guy Kawasaki:  “Ideas are easy.  Implementation is hard.”  Never a more true sentence spoken!

It really makes no difference whether yours is a digital startup or you’re just getting started with a brick-and-mortar business.  Every startup benefits by acquiring an attorney who specializes in the areas of business, including entity formation, founder agreements, and more.  In the early stages of a startup company, legal needs may vary in the areas of licensing, employment, partnership, and other areas depending on the nature of the startup, and its growth.  Mergers, acquisitions, and securities regulations are other areas many business attorneys specialize in, and that startups may eventually need guidance with.

Of the startup companies who do, why hire an attorney?  There are countless reasons, not the least of which include a business lawyer who is laser-focused on the success of his/her client provides long-term, strategic value in addition to focusing on risk-management for startups, and smart growth strategies.

If yours is a startup company, do you understand how to legally hire employees, compensate them, or even terminate an employee?  How is the proper way to go about protecting intellectual property, or advertise in a way that’s in compliance with federal rules?  If you intend to partner with another company or enter into an agreement, do you know all the rules and how to accomplish your goals without conflict?  Online, how can you maintain user privacy on your company website?  There are literally hundreds of questions startup companies have, which makes hiring a capable and trusted LA business lawyer critical to your success.

At Spotora & Associates, we understand the needs of startup companies, and how your success hinges on the guidance and support of a skilled and experienced attorney.  Avoid legal issues that could devastate the success of your business by consulting with a lawyer early on.

In October of 2014, a judge rejected a lawsuit filed by writers Stephanie Counts and Shari Gold claiming copyright infringement of their work by Fox’s ‘New Girl’ television series.

In January of last year, the writers sued William Morris Endeavor (WME) Entertainment, Fox, Liz Meriwether (showrunner of New Girl) and executive producer Peter Chernin for allegedly basing the ‘New Girl’ series on the writers’ own proposals for a movie or television series which they said would have been titled Square One.  As defendants in the suit, Fox demanded a dismissal of the charges saying in court documents that “the only similarities between the works arise from general, non-protectable ideas.”  In October, U.S. District Judge Stephen Wilson rejected the lawsuit against Fox and the other defendants, saying the copyright infringement claims were ambiguous.

The judge ultimately dismissed the claim without prejudice, meaning the writers could bring the claim against the defendants again.  However, after the plaintiffs/writers had rejected a settlement offer of $10,000 allegedly extended by Fox and switched lawyers, the statute of limitations came into play, suggesting that perhaps they did not obtain an explicit tolling agreement in order to extend the time to file the claim.

Ultimately, on June 12 of this year Judge Wilson granted WME (William Morris Endeavor) Entertainment’s motion to dismiss the idea theft claim.  This time the judge dismissed the claim with prejudice, meaning the plaintiffs cannot file a lawsuit against the defendants again.  The Court found that Counts and Gold failed to allege any facts which would excuse the writers from timely filing of the claim.

As Los Angeles business attorneys specializing in entertainment law, we know these types of copyright infringement claims are made frequently in the entertainment industry.  Writers, designers, and other artists or “creatives” often feel that their ideas and works have effectively been stolen.  In some situations this is indeed the case, in others it may not be.  Do not allow the statute of limitations to dictate the outcome of your claim. For copyright infringement and other entertainment issues, trust the team at Spotora & Associates for unparalleled legal guidance and support.

Recently, Cupertino-based Apple Inc. has been hit with a slew of new patent infringement lawsuits after the company was ordered last week to pay more than $530 million for infringing on the patents of a Texas company, according to an article at the LA Times.

Texas-based Smartflash was awarded $532.9 million by a jury, then filed an additional lawsuit on February 25 alleging that Apple violated the company’s patents in relation to devices that debuted after the original lawsuit was already in court. In the midst of all this, Ericsson, a pioneer in the Swedish mobile phone industry, hit Apple hard when the company filed seven federal lawsuits against Apple in an ongoing patent dispute, along with two complaints filed with the U.S. International Trade commission alleging that Apple had infringed on more than 40 patents in relation to various technologies relevant to iPads and iPhones.

In January of this year, a licensing agreement between Apple and Ericsson regarding royalties to be paid to the Swedish technology company for its mobile technology expired. Since that time, the companies have traded lawsuits, with Apple filing a suit against Ericsson in January regarding a fair rate for the rights to Ericsson’s patents. A spokeswoman for Apple revealed a statement made by Apple saying, “We’ve always been willing to pay a fair price to secure the rights to standards essential patents covering technology in our products. Unfortunately, we have not been able to agree with Ericsson on a fair rate for their patents so, as a last resort, we are asking the courts for help.”

Some of the patents Ericsson is taking legal action against Apple for include 2G, 3G, and 4G/LTE high-speed wireless technology; complaints filed in federal court also indicate Ericsson has taken legal action in regards to GPS technology.

While the initial lawsuit filed by Smartflash against Apple claimed infringement on three patents including devices that use iTunes and iTunes software, the new lawsuit filed by Smartflash LLC accused Apple of continuing to infringe on patents such as those for payment for songs, games, and other data in addition to methods utilized to manage digital rights. Apple denies the allegations, saying that the company manufactures no products, has no presence in the U.S., creates no jobs, and has no employees, and that Smartflash is exploiting Apple’s patent system in order to claim royalties for technology that Apple actually invented.

Spotora & Associates is a skilled team of Los Angeles intellectual property attorneys highly experienced and knowledgeable in the areas of patents, trademarks, copyright, trade secrets, and other areas of Internet law. Contact us today for unsurpassed legal guidance, support, and representation in matters regarding intangible rights.

Does the buying of keyword advertising trigger trademark infringement lawsuits?

The short answer is “yes, it can.” But while there have been many instances of such matters being aired in court, judges across the country have struggled to keep current with the matter and have issued less than uniform guidance. To understand the keyword advertising dilemma, it is important to first understand what keyword advertising is.

Keyword advertising, a multibillion-dollar business, refers to paid advertising on the Internet that links specific keywords or groups of keywords. If you have ever used the Internet search engine Google, you know that typing a phrase such as “sporting goods” into the search area would produce advertising links for sporting goods providers on the side of the screen.

Companies pay for the right to certain words so that customers click on the advertisements that lead to their Web sites. Often, companies pay for each “click-through” that is generated. But the controversy with this type of advertising occurs when companies buy a keyword that is part of a competitor’s trademark, bringing into play the Lanham Act.

In part, the Lanham Act is meant to protect the holder against those who “without the consent of the registrant, use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.”

To establish that keyword advertising violates the Lanham Act, it has to be proven that the trademark was actually used and that the general public would be confused about who is offering the goods or services in question.

Second Circuit courts have often found that the use of a keyword on its own is not a violation of the Lanham Act. Yet outside the Second Circuit, courts have often found the opposite to be true.

For example, in April 2008, the Eleventh Circuit ruled against a company who used a competitor’s trademarks within its invisible meta tags of its website. The court ruled that such practices were in fact trademark infringement.

Microsoft, Google and Yahoo! all sell keyword advertising and have been dragged into some Lanham Act court cases.

When it comes to companies protecting themselves against competitors misusing keyword advertising, it is important to track how your trademarks are being used on the Web. When a violation is suspected to have taken place, one should complain to a search engine, many of who often have their own complaint procedures in place. Experts also recommend that companies make sure they are the highest bidder for their advertising keywords that represent their trademarks to prevent others from using them.

To learn more, visit https://spotoralaw.com/.