Bob Marley. Lawsuit. A Copyright Battle.

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Copyright. “War” &“Natty Dread”

copyright For years, I have spoke, warned, cajoled and lectured about the importance of protecting your valuable intellectual property and making sure you do it right from the start. There are far too many examples of people losing the rights to their creative works simply because they were misled or trusted the wrong people and failed to get proper legal advice and representation.

A recent case in point involves a copyright battle over two songs recorded by the late reggae legend, Bob Marley. The two songs in question are “War” and “Natty Dread.”

Allan Cole, the famous Jamaican soccer legend and supposed musical collaborator with the late Bob Marley claims that he co-wrote the two songs with Marley but was never given copyright by the music companies involved in the recordings.

Cole claims he was unaware that he held no copyright on the songs until recently when he attempted to transfer half his interest in “War” to the family of former Ethiopian Emperor Haile Selassie, who once delivered a famous speech, which was the basis of the lyrics for “War.” Evidently, it took Cole 42 years to realize he held no copyrights on the songs.

The lawsuit names Island, Universal and Tuff Gong music as the defendants. Cole contends that he was promised copyright credit, but only received credit for co-writing the songs. Cole’s attorney is asking the court to enter a declaratory judgment that the companies infringed on his copyrights by “fraudulently substituting others as the authors.” Cole is also seeking payment from all income received from the works.

Your Creations. IP.

Whatever the ultimate outcome of this case, it should serve as a warning, once again, to current and aspiring artists, as well as to business owners and entrepreneurs. Your creations—intellectual property— requires attention, investment and vigilance. Don’t trust verbal commitments, get everything in writing and have an experienced attorney help you every step of the way.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join my conversation on FacebookTwitter, or in one of my LinkedIn groupsGoogle+ Circles.

Yelp. Reviews. Lawsuit.

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Make or Break a Business.

ReviewAccording to the company’s latest stats, an average of 145-million people visit Yelp each month. Some look at reviews posted by other users, while others post reviews on their experiences with local businesses. The popularity of the site speaks for itself and often reviews can make or break a business, so the process of posting reviews has seen its share of controversies since the company’s inception in 2004.

Recently a California law firm sued Yelp in order to force it to take down a “negative review” posted by an ex-client of the firm. Hassell Law Group first attempted to get the former client to remove her review back in 2013, but when they were unsuccessful in doing so, they decided to file a lawsuit against Yelp.

Attorney Dawn Hassel defended her firm’s legal action saying that they simply wanted the “lies” removed from the customer’s review, and not necessarily the negative comments. Hassel stated that the firm has an impeccable reputation and the lies in the Yelp review threatened that reputation.

Two years ago, a San Francisco court ruled with the law firm and agreed that the review was “defamatory.” Much to the chagrin of Yelp and other interactive Internet companies, a California appeals court later upheld the ruling.

Protect Speech.

Citing the bad precedent by the rulings, Yelp pressed forward and the case proceeded in front of the California Supreme Court this October. Yelp and other Internet companies such as Facebook, Twitter and Microsoft, said would stifle a vast quantity of “protected and important speech.”

Critics of the original rulings say that this would in essence stop consumers from giving anything but good reviews on sites like Yelp, thus rendering them useless to the public.

Aaron Schur, Yelp’s senior director of litigation said the ruling “would inhibit a website’s ability to provide a balanced spectrum of views online and make it more doubtful that people would get the information they need to make informed decisions.”

Dawn Hassel says the ramifications of her firm’s lawsuit are being exaggerated and overblown, saying, “You can give critical reviews about people on the Internet. It doesn’t mean it’s going to be defamation. You can’t write untruthful content to hurt somebody.”

Should people be able to write anything they want on review sites like Yelp, and if so, should the website be susceptible to lawsuits if the review poster refuses to delete or change the posting? Where is the fine line between free speech and opinion on the Internet and people’s rights not to be defamed or slandered?

Let’s see what answers the California Supreme Court comes up with next month.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join my conversation on FacebookTwitter, or in one of my LinkedIn groupsGoogle+ Circles.

 

 

 

Uber. Contract. Terms of Service.

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Uber. Contract.

Uber. Terms and Conditions

Uber. Terms and Conditions

How many times have you downloaded an app to your smartphone or software to your personal computer? Most people have done this dozens of times. Notice that sometimes when you install an app/program you are asked to click on a box that says you “Agree” to the terms of service. In the legal world, this is referred to as a “click-wrap” agreement. On other occasions, you are not required to “click on a box,” but you’re simply invited to read the terms of service.  You don’t have to and there is no one forcing you to do so.  In fact, you can ignore them if you desire.  This is referred to as the “browse-wrap.”

So what exactly are your rights as a consumer, when you supposedly agree to terms of service through one of these two methods?

Terms of Service.Uber.

This question may be closer to an answer after a controversial ruling by federal judge Jed Rakoff of the Southern District of New York. In an antitrust class action complaint, Meyer v. Kalanick and Uber Technologies, Inc. the judge denied a motion to compel arbitration in a class action complaint filed against Uber Technologies, a multinational transportation network, which allows its app users to hail rides via their Smartphones.

Like most apps, Uber’s contains a hyperlink to their terms of service, which includes a “mandatory arbitration” clause. However, Judge Rakoff ruled that consumers using the Uber app were not obligated to either click a box (click-wrap) or read through (browse-wrap) the terms of service before using it. Thus, the users never consented to the mandatory arbitration clause. The court also noted that the arbitration clause for Android users was “buried” in pages of legalese in fine print that was barely legible, making it extremely unlikely to be understood by ordinary consumers.

The accepted legal standard has been that in absence of “click-wrap,” the notice of terms of service is required to be conspicuous and indisputable. Judge Rakoff ruled that Uber did not meet these standards. This ruling contradicted a recent federal case out of Massachusetts, which ruled that Uber’s arbitration clause was “sufficiently disclosed.”

Federal courts, including the Supreme Court, have steadfastly enforced mandatory arbitration clauses.  However, this ruling by Judge Rakoff and the 2014 Ninth Circuit Court of Appeals decision in Nguyen vs. Barnes and Noble have shown that courts take seriously the concept of notice—making consumers aware of the existence of the terms.  Essentially, arbitration provisions and class action waivers are enforceable, so long as the user has been placed on sufficient notice.

In this case, the plaintiff’s allegation that he did not see the terms of service, while registering to use Uber, was sufficient to determine that Uber did not provide sufficient notice.  Therefore, the arbitration provision was not enforceable.

What can a business owner take away from this?

  1. Contract rules apply.
  2. Terms of Use or Terms of Service cannot be hidden in barely legible fine print.
  3. They cannot be stuck inside “highly legalistic language that no ordinary consumer could be expected to understand.”
  4. Best practice, require acceptance of the terms through a click-wrap

Is this a sign of things to come and will congress ultimately have to update federal dealing with mandatory arbitration laws to bring them up to speed with the digital age? We will have to wait and see.

 

Trademark. Proof.

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Trademark. Proof.  

Trademark. Proof.

Trademark. Proof.

 

NEWS Flash! If you don’t use your registered trademark you WILL lose it.

Back in July of 2012, the USPTO implemented a pilot program called, Proof of Use. The USPTO (Trademark Office) randomly selected 500 registrations where Section 8 and Section 71 Declarations of Use were filed. The results of the program were stunning and should serve as a wake-up call to all trademark registrants. Several of those were cancelled.

The intent of the pilot program was to test the accuracy and legal integrity of registered trademarks. The program wanted to ensure that registrants were using their marks as they said they were.  The samples selected were of registrations under Trademark Act Sections 1(a), 44(e), 66(a), and 1(a) and 44(e).

Trademark holders were asked to supply “proof of use” for the marks they registered. After analyzing the data, the USPTO asked some of the participants to delete goods and/or services from their registration that did not satisfy proof of use, while others received notices of cancellation.

Here is a breakdown of the data under the sections registered:

     Asked to delete goods/services                        Received notices of cancellation

Section 1(a)                              27%                                                                                     18%

Section 44(e)                            58%                                                                                       7%

Section 66(a)                            59%                                                                                     14%

Combined 1(a) and 44(e)      63%                                                                                      13%

Combined, over half of the registrants were unable to verify that they were using their trademarks as they said they were in the Declaration of Continued Use.

The USPTO fully expects that you will use your trademark for the specific goods/services listed in the registration. I cannot stress the importance of adhering to ALL post-registration requirements.  If you don’t, rest assured you will lose your trademark. It may not happen today, or tomorrow, but it will happen. Even if the USPTO does not cancel your registration on its own, an unhappy competitor could institute a cancelation proceeding.

While you may save a few dollars by trying to register your trademark by yourself, in the long run it will cost you so much more than if you had the help of an experienced attorney who specializes in Trademark law.

Feel free to join my conversation on FacebookFacebook Esteemableacts Fan Page, or my Facebook Law Page, you can also interact with me on my Twitter Esteemable Acts pageTwitter Law Page, or on LinkedIn.

Alaska Airline. Travel. Exit row.

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Alaska Airline. Travel.

Alaska Airline. Exit Row.

Alaska Airline. Exit Row.

The world of travel has changed.

We started talking as we waited to board our Alaska Airline flight from Palm Springs to San Francisco.  His cane drew my attention.  It had an ivory handle in the shape of a cat.  I love cats. He was elderly, I’d say about 93, and not in great health.  But he seemed quite lovely and had a kind demeanor.  As we continued to talk, he spoke sweetly of his “bride” of 62 years, who had recently died. There was a poignancy and a sadness about him; you could tell he loved her very much.  As we boarded the plane, I helped him lift his bag into the overhead. Then, much to my surprise, he was seated in the same row as me—the exit row.

Alaska Airline. Exit Row.

I asked curiously, is this your right seat-row 16? He fumbled looking for the folded Alaska Airline boarding pass he had stuffed into his jacket pocket.  “Yes, see I’m in 16B. the exit row”.

For a quick moment my life flashed before me. I thought, what if we had an accident. Would I feel safe with him trying to open the exit row door? Sadly, my answer was no.  Yes, he was a sweet kindly old gentleman, and yes, I enjoyed our conversation, but I would not feel safe if my life depended on him.

It made me think how money and greed have become so much a part of our lives that daily, our safety is at risk because someone wants to make money.  We fear terrorists, yet right here at home every day, money trumps life.

There was a time when the airlines placed restrictions on who could sit in the exit row, e.g., you had to be 14 and arguably be able to open the heavy door and assist others in the event we needed to evacuate the plane.  Yet this man, who could hardly see, stand or find his way, was actually allowed to sit in row 16B on flight 306 from PSP to SFO.  And, it was not the first time I had witnessed something like this.  I love old people, but not sitting in the exit row.  Now it appears that anyone willing to pay for the extra leg room gets to sit there.

According to the official FAA website (www.faa.gov), the regulations concerning exit row seats are as follows:

  • You must be physically capable and willing to perform emergency actions when seated in emergency or exit rows. If you are not, ask for another seat.
  • Thoroughly familiarize yourself with the emergency evacuation techniques outlined on the written safety instructions. Ask questions if instructions are unclear.

So what is going on here?

Looking a little bit deeper, you’ll find that the airline industry doesn’t really take the FAA exit row seating guidelines very seriously. An article posted way back in 2008 on airfarewatchdog.com titled “Everything you wanted to know about exit row seats: who charges, how to snag them,” makes a mockery out of the exit row rules. The article tells you which airlines charge for them, which don’t, and explains how relatively simple they are to get. Often, all you have to do is be the first to request them. Nowhere in the article does it mention the supposed rules and physical requirements for these seats.

Is this simply another case of airlines bending, or simply ignoring, the rules for the sake of booking as many seats as possible? There is nothing wrong with making a profit (I’m all for that), but one would think that when it comes to air travel safety the rules would be the rules. What do you think?

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join my conversation on FacebookTwitter, or in one of my LinkedIn groupsGoogle+ Circles.