Terms. YouTube.

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 Terms and Conditions.  Terms of Use.

Terms. YouTube.

Terms. YouTube.

Read it and understand it BEFORE you sign it, OR pay the price. Reading Terms and Conditions or Terms of Use or Terms of Service is quickly becoming the foundation for many social media related lawsuits.  I am constantly blogging about this topic, speaking about it in my lectures, and reiterating its importance to my clients over and over again. Yet, folks still ignore the warning—until it’s too late. They simply do NOT want to read the Terms of Service, Terms of Use, or Terms and Conditions before accepting them (collectively known as the “Terms”).

Terms.

There are a ton of reasons why people choose not to read the Terms before they sign those documents.  Among the many reasons are:

  1. The Terms are too long;
  2. The Terms are too complicated;
  3. I trust the person/company that issued them;
  4. I feel I have no choice but to accept the Terms.

If YOUR reason for not reading the Terms, before you sign them, is one of the above (and BTW, clicking “I Accept” is signing), then a recent decision handed down by the United States District Court for the District of Columbia may serve as a strong warning.

Song Fi vs. YouTube and Google. Arbitration.

The plaintiff sued YouTube in Washington, DC, despite the fact that YouTube’s Terms state all disputes must be resolved in the Northern District of California through arbitration. The plaintiff, who lives in DC, understandably did not want to fly from DC to California every week to litigate the claim. Plus, the plaintiff obviously felt he had a better chance of winning in a lawsuit, rather than in an arbitration hearing. So, he attacked YouTube’s Terms by stating they were unconscionable. He further stated that he “didn’t read them anyway,” because he felt he had no choice. The plaintiff argued that YouTube has “overwhelming power in its chosen market” and that the plaintiff as a “small, independent music company,” had no choice but to accept YouTube’s Terms. He continued saying, he “Lacked any kind of meaningful choice as to whether to upload their video to the YouTube website and agree to the Terms set forth by YouTube.”

For every person who wants the right to make adult choices, yet then chooses to see him or herself as a victim—when convenient, LISTEN UP!

Terms. Contracts.

The court came back and said, Terms of Use are contracts and there was nothing in YouTube’s Terms that was unfair or unreasonable.  The court further said, “Though YouTube is undoubtedly a popular video-sharing website, it is not the case that Plaintiffs lacked any kind of meaningful choice as to whether to upload their video to the YouTube website and agree to the conditions set forth by YouTube. Plaintiffs could have publicized the LuvYa video by putting it on various other file-sharing websites or on an independent website.” The court further sent the case to California.

So what is the takeaway?

  1. Read every document before you sign it, because whether or not you read it, YOU WILL BE HELD LIABLE for it.
  2. If you object to the terms of the agreement, DON’T SIGN IT—you have a choice, albeit not the choice you like.
  3. If you sign a document that has a jurisdiction provision that says all disputes must be resolved in a certain state, BELIEVE IT. Sometimes there are ways to get out of that, but you will have to pay a lawyer to fight it and you may still lose.
  4. If you sign a document that says all disputes must be resolved by arbitration, BELIEVE IT. Again there are exceptions, but you will likely have to pay a ton of money to prove you are right.
  5. As long as the Terms of Use are clear, visible, and can be understood, most courts will uphold them.
  6. YOU ALWAYS HAVE A CHOICE.

Until next time, I’m Attorney Francine Ward. Find me on my Facebook Law Fan Page, Twitter Law Page, Google+, and LinkedIn.

Trademark Registration. USPTO. Trademark.

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Trademark Registration. USPTO. Trademark.

Just off the press! The United States Patent &Trademark Office (USPTO) has announced that the USPTO will start sending email reminders to trademark registrants who have “live” registrations, as of January 2015. There are some caveats, among them is that USPTO must have a valid email address on file and the trademark registration must be live, not a dead trademark registration. Email reminders will also be sent to registrants regarding the filing of the Declaration of Continued Use , which is due between years 5-6 after trademark registration.

Trademark Registrants.

In order to ensure that trademark registrants receive email reminders, registration owners should add the USPTO to its “safe senders list.” If trademark registrants have done so in the past, they may want to reconfirm that their email server will accept email from the USPTO and will not treat it as junk mail or spam. It is important to know that despite this effort on the part of the USPTO to make it easier for trademark registrants not to lose their valuable trademarks, it is still the responsibility of the trademark registrant to be on top of any statutory obligations. Any failure by the USPTO to provide the courtesy email reminders or any non-receipt of such reminders will not excuse a registration owner who fails to meet its statutory obligations.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. What do you think? Law Facebook Fan Page, Law Twitter Feed, Google+, LinkedIn.

Election Day. Register to Vote. Vote.

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Register to Vote. Election Day.

Election Day. Vote. Register to Vote.

Election Day. Vote. Register to Vote.

Did you register to vote? Will you vote today?  On any given day we make choices about everything from the time we wake up in the morning to the time we go to bed at night. One of life’s greatest gifts comes when we realize that we all have the power to make a choice, take a stand, or just get involved. When you register to vote and then, when you vote, you take a stand.

Today is Election Day, and I remember my first voting election. The year—1972. I turned 18 in January 1971 and it was my class of 18 year olds that were first granted the right to vote. I voted in 1972 for George McGovern, and have been voting in every election since that time.

Election Day.

As a democracy, we are given the right to vote on Election Day, and should all be thankful that we live in a society that allows us to exercise that right. When we vote, we empower ourselves to create change and to hold our leaders accountable.

One thing I learned growing up in the sixties is that if you do not like the way things are going, get involved and try to affect change. That attitude has become an integral part of my life experience. I’m a doer. If I don’t like a situation and can do something about it, I do it—or at least to make an effort. If I cannot do anything about it, I accept it. But taking action is my first line of attack.

Vote. Young Americans.

Sadly, statistics show that far too few young Americans are not exercising their right to vote. In 2010 only 24% of 18-29-year-olds voted, compared with 51% of Americans aged 30 or over.

A recent article in the Economist states that many young Americans bridle at the suggestion that they are too lazy to vote. “We’re not apathetic, just frustrated,” says Mary Rouse, a student at Elon University in North Carolina. Young people do care about politics: they just dislike it.

Whether you are young or old, rich or poor, like or dislike politics, you hold a stake in our future. Do not give into frustration and negativity. Realize that everyone can make a difference, but you have to get involved and be in the game.

Today is Election Day, and I will be voting. I will be voting for all of those folks in office who have worked hard to create change—despite all of the opposition in their way.

It’s an Esteemable Act to take action and vote. So whomever you decide to vote for— just VOTE!

Until next time, I’m Francine Wardattorney, coach, author, and speaker.  I invite you to join my conversation on my Esteemable Acts Fan pageEsteemable Acts Twitter feed, or in one of my LinkedIn Groups.

 

Trademark. Registered Trademarks. Apple.

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Trademark.

Trademark. Registered Trademarks.

Trademark. Registered Trademarks.

A trademark is a word, name, phrase, logo, design, or a combination of those things, which identifies the source of a product of service. Examples of existing federally registered trademarks are the golden arches for McDonald’s fast food stores, Apple for computer products, Nike for athletic apparel, Microsoft for computers, Dominos for pizza shops, the NBC chimes for NBC network, and so many more.  Now add retail store layout to that list of what can constitute a trademark.

USPTO. CJEU. Apple.

On January 22, 2013, the United States Patent & Trademark (USPTO) issued a registration to Apple for its layout (Reg. #4277913). Originally the USPTO issued an Office Action refusing to register the trademark in the US. The USPTO felt the mark was no distinctive and would be perceived as ornamental in nature. Apple overcame that objection. Subsequently, on July 10, 2014, the European Union’s highest court, The Court of Justice of the European Union (CJEU) paved the way for Apple to register its layout as a trademark.  The holding essential provides that Apple’s flagship store layout can be protected as a trademark.

What’s in it for Business Owners.

What does this mean for business owners who have distinctive retail store and/or commercial establishment layouts? They can have the layout registered, only:

  1. If the layout distinguishes the products/services of the trademark applicant from those of other businesses.
  2. If the layout design significantly departs from the customary norms of the industry concerned;.

I’m Attorney Francine Ward helping you protect what’s yours. If you need help selecting a trademark that can be protected, doing a comprehensive search on a trademark, filing a trademark application, or responding to an Office Action, feel free to give me a call, or contact me through my website, my Law Facebook Fan Page, my Law Twitter page, my Google+ page, or my LinkedIn Pulse page.

 

Trademark. Trademark Search. Trademark Registration.

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Trademark.

Trademark search. Trademark.

Trademark search. Trademark.

When it comes to a trademark, the most important step in the protection of a trademark is selecting a trademark that can, in fact, be protected. Choosing your trademark carefully is the essential first step. If you choose wrong, you will pay dearly. Not only will you pay in money, but in time and energy, especially if you have invested in significant marketing.

You Will Pay on the Front-end or the Back-end.

The cost of cleaning up a mess is always greater than doing something right the first time. If you choose a trademark that cannot be protected, your application will most certainly be denied before you can pass GO. For example, certain trademarks can never be protected by law, e.g., generic trademarks, and scandalous trademarks.

Trademark Search. Trademark.

The second most important step in the trademark protection process is clearance–doing a comprehensive trademark search to determine if the mark can be registered. Yet, as important as this step is, many folks avoid doing it. Why? One reason may be cost. The cost of investing in a trademark search is not cheap. It can range anywhere from $300-750, plus the cost of analysis (having a lawyer tell you what the voluminous search report actually means). But avoiding those costs on the front end can create greater costs on the backend.

If you don’t do a search and someone else is already using the same trademark, your application will likely be denied by the United States Patent & Trademark Office (USPTO). Their reason: your mark is likely to be confused with an existing registration or a pending application trademark.

When should you do a search?

When you are about to do any of the following, among other things:

  1. Start a business
  2. Build a brand
  3. Acquire a business
  4. Purchase Assets
  5. Purchase a Franchise
  6. License a trademark
  7. Collaborate with someone on a project involving content or brand creation.

Protect your valuable assets!

Until next time, I’m Attorney Francine Ward helping you protect what’s yours! Join my conversation on my Facebook Law Fan Page, Twitter Law Page, in one of my LinkedIn Groups, or in one of my Google+ Circles.