Authors. Libel. UV-a

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Authors beware when writing about people you know.

Old typewriterLast year, a federal jury sitting in Virginia awarded $3 million to Nicole Eramo, a former University of Virginia (UV-a) associate dean. The jury found Rolling Stone magazine had committed libel. The magazine published an article that tarnished Ms. Eramo’s reputation by alleging she was indifferent to allegations of gang rape on UV-a campus.

What’s the message here? Be careful what you write.

Yes, the First Amendment has certain guarantees regarding free speech and freedom of the press, but even the First Amendment has its limits. The Eramo jury found those limits.

So, as authors wanting to write about people that can potentially be recognized, here are a few things to take into consideration:

Understand the concept of libel. It’s a false statement published as a fact, which harms the reputation of a person, business or organization.

  1. Defamatory Statement. In breaking down the definition, know that the alleged libelous content must contain a defamatory statement that harms the reputation of someone.
  2. Easily Recognized. If the party you speak about can be identified, you risk being sued. This applies even if you change the name. It also applies to both fiction and nonfiction works of authorship.
  3. Published to a Third Party. The work must be seen by a third party, not just the author of the work and the person written about.
  4. Must be False. Finally, truth is a defense to libel. For a claim of libel to be successful, the statement must be false.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join my conversation on my Facebook Fan Page, on my Twitter page, in one of my LinkedIn Groups.

The Slants. USPTO. “Disparaging”

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Trademark. Rejection.

USPTO. Trademark.

Imagine that you find that ideal name that suits your business and brand quite perfectly. You rush to quickly file all of the appropriate paperwork with the US Patent and Trademark Office so that you can start to use your trademark. Then your attorney reaches out to you to inform you that you’ve received a rejection letter from the USPTO stating that your trademark was not approved because it was found to be “disparaging.” What would you do?

Well this is exactly what occurred to the Asian-American rock band, The Slants. The band’s trademark was rejected in 2010 on the grounds that it is disparaging to people of Asian descent. The band leader, Mr. Tam, was surprised about the rejection notice and cited that the band had received not one formal complaint by any Asian-American. At that time the band had been touring for over several years.

In an edited excerpt from the conversation that the NY Times conducted with Mr. Tam, he says the following about where the name originally came from:

It came from me asking around friends when I was trying to think of a band name. I said, “What’s something you think all Asians have in common?” and they told me slanted eyes. That’s interesting because, No. 1, it’s not true — not all Asians have slanted eyes and Asians aren’t the only people that have a slant to our eyes. But No. 2, it worked [as a name] because we could talk about our perspective — our slant on life, as people of color navigating the entertainment industry — and at the same time, pay homage to the Asian-American activists who had been using the term in a reappropriated, self-empowering way for about 30 years. We know that irony and wit can neutralize racial slurs, because it shifts the dynamics of power. It makes people check in and think, “Is this actually appropriate to use or not?” Prior to that, people just make assumptions. Read more here.

The Slants.

The Slants, not wanting to give up on their band name, took their case all the way to the Supreme Court. And after 5 years of battle, the Supreme Court recently ruled the USPTO is not able to determine what kind of speech is socially acceptable and what is not.

Justice Samuel Alito wrote, “The disparagement clause violates the First Amendment’s Free Speech Clause.” The court went on to say that “the federal government does not dream up these marks,” and that registration should be “viewpoint neutral.”

Attorney Lee Rowland of the American Civil Liberties Union agreed with the decision that the Supreme Court made and said:

“The government’s misguided effort to protect minorities from disparagement instead hurt members of that very community by hindering their right to compete in the marketplace of ideas. Fortunately, today’s opinion prevents the kind of absurd outcome that results when the government plays speech police.”

As this moment, the government has appealed the decision to the U.S. Supreme Court. So, we will need to continue to follow this case. What do you think of the Supreme Court’s decision? Feel free to comment below.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join my conversation on my Facebook Fan Page, on my Twitter page, in one of my LinkedIn Groups.

Trademark Scammers. USPTO SCAM.

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Non-USPTO Solicitations

USPTO Scam

USPTO Scam

Here is yet another way scammers are trying to part you from your hard-earned money.

The USPTO recently announced that trademark holders are receiving letters in the mail requesting payment on fees due for the trademarks.

The fraudulent solicitations include offers such as: for legal services; for trademark monitoring services; to record trademarks with U.S. Customs and Border Protection; and to “register” trademarks in the company’s own private registry.

Furthermore, these scammers are using letterhead that mimics the look of official government documents and are using names that resemble the USPTO, such as “United States,” “U.S.,” “Trademark,” “Patent,” “Registration,” “Office,” or “Agency.”

Trademark Scam.

The Department of Justice reported that these scams resulted in the loss of approximately $1.66 million from copyright holders, and has only resulted in 5 convictions.

So, if you get a letter in the mail stating that it’s from the USPTO office read the letter carefully before making a decision about whether to respond.  According to the USPTO “All official correspondence will be from the “United States Patent and Trademark Office” in Alexandria, VA, and if by e-mail, specifically from the domain “@uspto.gov.”

What do you do if you are a victim?

File an online consumer complaint with the Federal Trade Commission (FTC). See here.

The USPTO has offered several examples of just some of the non-USPTO solicitations that have been mailed out, which can be reviewed here.

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. Feel free to subscribe to my newsletter.

New Business. Contracts. Business Formations

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Global Business TechnologyStarting or expanding a business can be an exciting time, but it can also be extremely stressful as well. Many people invest their life’s savings to pursue their dreams of starting a business. Many people also seek out financing through banks, and even through friends and family. Of course, these funds need to be paid back. So doing things right from the start can literally be the difference between success or failure. Recently a client came to me and asked, “Should I incorporate, remain a sole proprietor, or form an LLC?” She said, “I’m even wondering if I should form a hybrid company, like that new benefit corporation I read about.”

Wondering what type of business entity is right for you is a critical first step in becoming a smart business owner. In making that decision there are many factors to take into account, e.g., type of business you want to have, your short and long term goals, the costs attendant to starting the business, the required formalities for forming the business, the formalities for maintaining it, protection from liability, tax implications, and management & control issues, to name a few. These are just some of the questions you will need to decide before answering the question, What type of entity should I form?

There are many types of business entities to choose from. Not all entities are created equal. Among your choices are:

Other Questions to Consider: Once you decide what type of business to form, you must turn your attention to where.

  • In what state should you form your business?
  • How much does it cost, and what filings do I need to make?
  • Will there be other owners besides me?
  • Do I want a board of directorss, members, or possibly both?

These may seem like simple questions, but in fact, they require careful consideration by business owners, taking into account the specific facts of each start-up’s particular situation. Then of course, after you form your entity, you need an assortment of contracts to get you going and which are best for YOUR needs. What tasks do you need to perform to get started? Here is a checklist with some useful first steps.

Business Law Help is Available: There can be consequences for not making the right choice. The stakes are just too high to go it alone – but you don’t have to! This is why it is extremely wise to get the best help you can when you most need it – in the beginning. There are lots of resources for new businesses, e.g., The Small Business Administration (SBA), SCORECoachella Valley Women’s Business Center, and so many more. Every state has programs and organizations designed to help you get started turning your wonderful business idea into a money-maker, from providing business plan assistance, to financial guidance, to workshops on all topics.

On the otherhand, you may prefer to have a lawyer on your team. An attorney you can count on and speak to when you need her. A competent expert, who understands the ins and outs of business and intellectual property law issues. Make no mistake about it, ALL businesses have intellectual property law issues, from protecting your content, products, articles, videos, website content, photos; to protecting your brand name, logo, business slogans; to ensuring that your contracts are current and enforceable; to making sure you are up-to-date when it comes to legal issues (e.g., social media law, defamation law, privacy law).

Book Contract. Contract Negotiations. Publishing Contract.

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Getting a Book Published

business man scratching his head while readingAre you an author wanting to know “how to get published”? Do you already have a book deal? Do you have an agent? Well before you sign that agreement (even if you have an agent) you should read this.

As an intellectual property attorney who, among other things, has negotiated a number of book contracts, there are a few things I’ve learned that can help you avoid what many authors learn the hard way:

1. Even though you want to get published, NEVER sign a book deal out of desperation—you’ll be the biggest loser.

2. Read and understand ALL of the terms in the book contract.

3. If you find a publisher without an agent, have a book attorney or book lawyer review the agreement BEFORE you sign it

4. Don’t be afraid to ask your publisher and/or your agent questions (and even of you are afraid, ASK anyway!)

5. Know that ALL publishing agreements / book contracts are negotiable.

6. Leverage is the key to getting what you want (think about what you bring to the table B/4 you agree to anything).

7. Boilerplate does NOT mean non-negotiable.

8. Boilerplate does NOT mean you should not read before you sign.

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. Feel free to subscribe to my newsletter.