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.

 

 

 

Texting and Driving. Justice.

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Justice.

Texting and Driving.

Texting and Driving.

This past March, a California judge sentenced a Stanford University student to six months in prison for sexually assaulting a female student outside of a university frat party in January of 2015. Brock Turner, a member of Stanford’s swimming team, was apprehended by two foreign exchange students who witnessed the assault. Was this justice?

The six-month sentence sparked national outrage, which included petitions to impeach the judge, Aaron Persky. The judge noted Turner’s age (20) and lack of a criminal record to justify the sentence, saying, “A prison sentence would have a severe impact on him, I think he will not be a danger to others.”

Can any person with a sense of justice agree that six months in prison (minus time served) is a fair sentence for a sexual assault of a completely helpless woman? I believe most people would agree that the sentence was a travesty of justice that sends the wrong message.

Texting and Driving.

As bad and inherently unjust as this sentence was, this next case will really have you scratching your head and questioning the fairness of our criminal justice system.

An Iowa mother was recently sentenced to just 14 days in jail for killing a 75-year-old man while texting and driving. The woman, Laura Maurer, was sentenced to 30 days in jail and 200 hours of community service, but 16 days of the sentence were deferred.

When asked whether her sentence was too lenient, Maurer avoided directly answering the question and instead talked about how hard the the community service has been on her. She did, however, admit that stricter sentencing for “distracted driving” might be a good deterrent for others.

Unlike the Stanford case, there hasn’t been a national outrage over this sentence. Some people believe it’s due to the age of the victim and that if she had killed a much younger person, it would have been worse for her. Others believe that her actions – texting while driving – are so commonplace now that people are not outraged because they themselves do it.

Was the sentence given to the Stanford sexual offender lighter because of his race and social status, or, was it because he was a “star athlete” at the school? Was the Iowa woman given a lighter sentence because her victim was an elderly man and some lives are more valuable than others?

I believe that everyone can agree that our justice system must be fair and equally applied in order for people to have trust and confidence in it. Let’s just hope that these two cases are an aberration and don’t become the norm.

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.

 

 

Music. Infringement.

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Music During Campaign Rallies.

copyrightThe political season is in full swing with candidates doing all they can to get those votes in November, and not just for the presidency but for the Senate and House elections as well. Candidates use a variety of tactics to get in touch with potential voters by means of rallies, TV ads, and phone banks, just to name a few.

The use of music during campaign rallies and on TV commercials has been a staple of political campaigns. Candidates want to connect to voters through use of popular songs, but most popular songs are copyrighted, which means that permission from the copyright holder must be obtained before use.

Copyright Laws.

One would think that people running for political office and the people who run their campaigns would understand and respect copyright laws. History has proved that this is not the case. Often candidates play recorded music during their rallies, and quite often, the creators/copyright holders of that music ask them to stop. Other times copyright holders sue.

The campaign of former GOP presidential candidate Ted Cruz is embroiled in a copyright infringement lawsuit for use of music that is licensed on a no-political-use basis. The songs in question are “Fear of Complacency” by Brad Couture and “Lens” by Sarah Schrachner. The songs were downloaded from Audiosocket, a music licensing company, by an ad agency working for the Cruz campaign. The two songs were then used in promotional material for the campaign even though the terms of use prohibit using the music for “political purposes.” According to the complaint, the Cruz campaign continued using the songs even after they were asked to stop.

Eye of the Tiger.

The court has so far denied a motion to dismiss by the Cruz campaign.

The Cruz campaign was not the only campaign that ran afoul of copyright law. Mike Huckabee’s campaign settled out of court in a copyright dispute over use of the song “Eye of the Tiger.” The campaign paid the copyright holder, Frankie Sullivan, $25,000. The campaign attempted to argue fair use in regards to the iconic song before the settlement was reached.

Bruce Springsteen. Born in the USA.

The clash between political campaigns and music artists is nothing new. Back in 1984, the Reagan campaign was asked by Bruce Springsteen to stop using the song “Born in the USA.” And more recently, the Donald Trump campaign was asked to stop using the Queen song, “We are the Champions.”

The people who want to be elected to be our leaders should understand that copyright laws, like other laws, are for everyone. There is no political exemption.

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.