Archive for the 'Intellectual Property' CategoryPage 2 of 15

Uber Puts the Brakes on Their Self-Driving Cars

A few months back, Uber announced it was going to test something potentially groundbreaking–they announced tests of self-driving rideshare services in San Francisco.  Unfortunately for Uber, the tests turned out to be more premature than groundbreaking.  The California DMV condemned the tests as illegal and demanded that Uber not roll out their self-driving cars.  In the face of the disapproval of the California DMV, Uber decided to totally ignore the DMV and move forward with the tests anyway–for a week.  After moving forward, the California DMV revoked the registrations on every single one of Uber’s self-driving cars and Uber was forced to abandon their tests.

What’s the Problem with Uber’s Self-Driving Cars?

The problem California had with Uber’s self-driving test cars was a simple one, Uber simply didn’t bother to get the permits necessary to use an autonomous car in California.  Uber objected to the requirement of permits in the first place, arguing that because their self-driving cars needed human supervision they were not actually autonomous under California’s definition as California currently defines an autonomous car as one that drives “without the active physical control or monitoring of a natural person.”  The vice-president of Uber’s advanced technologies division made an announcement stating that “this rule just doesn’t apply to us, you don’t need to wear a belt and suspenders and whatever else if you’re wearing a dress.”
Uber Puts Brakes on Self-Driving Cars

The California DMV, as you can tell from how they responded, didn’t agree.  They’ve already issued hundreds permits to test autonomous cars on the roads of California.  They consider this permitting necessary for public safety when it comes to such new technology, and they demanded that Uber follow their rules.  Perhaps this was a wise precaution, in the one week Uber’s cars were running one was caught on tape running a red light.

This isn’t the first time Uber has chosen to ignore state laws in testing automation or had trouble with the law.  In fact, their very business model has occasionally been challenged as illegal.  Earlier this year, Uber went forward with testing self-driving trucks in Nevada despite explicit warnings from the state’s DMV that doing so would violate Nevada law.  Luckily for Uber, while Nevada has similar permitting requirements to California, the laws were so new as to not yet have any penalties set up for failure to comply.

Despite these setbacks, Uber’s self-driving plans have been making strides around the nation.  In Pittsburgh they have been given essentially free reign with a similar program testing autonomous ridesharing.  They have announced they will be moving the San Francisco test cars to Arizona and moving forward there.

Part of Uber’s problem, and how they caught a break in Nevada, is that self-driving cars are so new that very little law has actually sprung up to regulate how and when they can be used.  However, this has been slowly changing as states recognize that autonomous cars are here to stay.

Self-Driving Car Laws Around the Nation

Self-driving cars are coming and it’s not a matter of if, it’s a matter of when.  Just recently, Ohio announced it was investing $15M in self driving trucks going forward.  In the same week, Michigan became the first state to pass comprehensive laws on using, testing, developing and selling self-driving cars.

However, luckily for companies like Uber, Michigan’s laws have not focused on restricting the use and testing of self-driving cars–quite the opposite.  Michigans bills, 995 through 998, provide clear rules for how an autonomous car may be used on public roads and freeways.  The laws are set up to make clear rules for testing.  Once testing is complete, the new laws even allow for properly tested automated vehicles to be sold to the public.  The laws also require the Michigan Department of Transportation to recommend standards that will ultimately regulate the connected networks of autonomous cars and how the data collected from such a network–collisions, traffic data, etc.–will be allowed to shared with others.

What is less fortunate for Uber is that the laws also serve to outright lock them out of any self-driving rideshare services.  The new laws only allow specific most eligible automakers from creating a network of self-driving taxis.  While the law is very new, it certainly seems like this would keep Uber from spreading their new programs into Michigan.

Uber seems to think so, they’ve heartily condemned this part of the law in the media–calling the rules anti-tech and protectionist.  They have a point to a degree, creating a state made monopoly on a service or product does not seem like the best idea.   However, for the most part, Michigan’s rules will serve to open doors and ease the way as self-driving vehicles make their way into the marketplace.

While Michigan’s laws are the most sweeping, and likely the most lenient, laws passed on the subject they are far from the only laws regulating self-driving cars.  California, Arizona, Nevada, Utah, North Dakota, Louisiana, Tennessee, Florida, Massachusetts, Washington D.C., and Virginia all have laws in place regulating the use of autonomous vehicles.  In September of 2016, even the federal government–through the National Highway and Transportation Safety Administration–released an updated set of suggestions providing guidance for states in making laws.

It hasn’t all been forward progress, 16 states had self-driving car legislation that either stalled out or failed to pass in 2016.  However, Michigan–perhaps because it is a state so embroiled in car manufacturing–has taken the next steps in a trend towards fully preparing for self-driving vehicles to hit the market in earnest.  It’s only a matter of time until autonomous cars become as common as hybrids have become.  Uber may be flouting laws right now, but what they’re doing is going to become so common as to need clear regulation nationwide.

Can You Get Sued for Your Critical Yelp Review?

In a world where fast-food chains get blamed for customers biting off too big of pieces of chicken and coffee chains get sued for for under filling their lattes, it shouldn’t come as a surprise when someone gets sued for leaving a bad yelp review.  Yet, somehow… it still does.

Lan Cai, a 20-year-old nursing student, was seriously injured in a car accident.  Driving home from her waitressing shift late one night, she was struck by a drunk driver, ultimately leaving her with two broken bones in her lower back.  With the high costs of medical bills, Cai understandably critical yelp reviewsought out legal help to prove her damages.

Cai hired the Texas law firm of Tuan A. Khuu, who she claims was extremely unprofessional.  After writing about her experience with the firm on her Facebook page and via a Yelp review, Cai received cease and desist letter from Keith Nguyen, a lawyer at the Khuu firm, threatening suit if she didn’t remove her posts.  Cai refused and Nguyen proceeded with his lawsuit demanding close to $200,000.

What Did the Firm Sue for?

Defamation, libel per se, defamation per se, and injunctive relief.  The judge wasn’t buying it, though, and dismissed the case, ordering the Khuu firm to pay $26,831.55 in attorney’s fees.  The firm’s actions backfired and they have, unsurprisingly, received even more negative attention than they had to begin with.

This isn’t the first time a case like this has been brought before a court.  Earlier this year, a pet sitting business sued a Texas couple for up to 1 million for leaving a one-star review on Yelp.  What did the couple complain about on the review that was so harrowing to the pet sitting company?  Their fish had been overfed.

What’s to Stop Companies from Suing?

Well, it depends on where you live because there aren’t any federal protections, unless you count the First Amendment (which you should).  Let’s rephrase that to there aren’t any federal protections that address these specific issues surrounding negative reviews of online.

These suits aren’t uncommon and they fall under a classic SLAPP type lawsuit.  SLAPP lawsuits (Strategic Lawsuit Against Public Participation) , which are illegal in many jurisdictions, are intended to censor or silence critics by burdening them with the cost of legal defense in the hopes they comply with whatever it is the plaintiff wants them to do (or not do).

Sometimes you’ll also see companies trying to sue their customers/clients for leaving negative reviews because the client has signed some sort of non-disparagement clause.  What’s that, you ask?  Basically, it’s a clause in a contract (usually in the fine print) that prohibits the signor from taking any action that might negatively impact the business.

California has a law that’s been notoriously nicknamed the “Yelp Bill” because it renders these types of clauses null and void.  Others, like Texas, have laws that allow SLAPP lawsuits to be thrown out at early stages of litigation.  Remember the Texas couple with the fish?  They signed a non-disparagement clause.  Luckily for the couple, the case was dismissed, but I doubt it will be the last of its kind unless some kind of federal legislation is passed.

Negative Reviews May Prevail Depending On California Supreme Court Decision

The California Supreme Court is set to hear an appeal brought by Yelp involving a similar case similar to Cai’s.  In that case, a lower court ordered Yelp to remove a negative review off their website because a former client of a law firm left statements on the popular website that were found to be legally defamatory.

Yelp argues a favorable outcome for the law firm would open up the flood gates for businesses to force the company to remove critical reviews and, thus, infringing on free speech rights.  The law firm, on the other hand, argues their case is unique in that they’re only asking the company to remove the review that contained defamatory statements.

In theory, yes, defamatory statements made on the review site pose a different set of problems, but even still, forcing Yelp to remove the review will open up a can of worms.

If not, Hopefully Congress to the Rescue

How many of you have ever left a Yelp review?  How many of you have ever relied on one of those Yelp reviews when choosing a company to give business to?  Even something as simple as deciding what restaurant to go for dinner?

With big companies like Twitter, Facebook, Microsoft, and Yelp advocating for better consumer protection, Congress has started to listen.  Currently, Congress is trying to pass legislation through the House that would ensure customers are protected from any legal repercussions when leaving negative reviews online.

Last year, a similar bill was passed through the Senate and, although the two bills need to be merged before they can be officially signed into law by the president, both bills accomplish the same thing.  Business contracts for goods or services will be restricted from using non-disparagement clauses, or anything like it, that would prohibit negative reviews.

Hyperlink Hysteria: When is Posting a Hyperlink Breaking the Law?

It’s no understatement to say that hyperlinks are essential to a functioning internet. You clicked one to get here and you’ll probably click plenty more today. However, under a new Court of Justice of the European Union (CJEU) ruling, posting the wrong link in the wrong way can get you in legal hot water.

The case pitted Playboy magazine against a Dutch company whose business and website involved posting links to unauthorized replications of stills from Playboy magazine. Playboy took issue with this and sued, arguing that posting these links infringed their copyrights in the photos.

In their recent explanation of their initial opinion from a few months back, the CJEU sided with Playboy and created brand new rules describing the situations where posting a hyperlink can get you in trouble in the EU.

The EU’s New Ruling

First and foremost, where freely available content is posted to the internet with the copyright owner’s consent there is never copyright infringement. However, when the link posted is to unauthorized material, access to which would otherwise be restricted, the situation changes.

Under the new rules, a person posting such a link is liable for copyright infringement in two situations. First, where the link was posted “in pursuit of financial gain,” there is a presumption that the person posting knew they were not authorized to post the link and guilty of copyright infringement unless they produce evidence to rebut that presumption. Second, where the link is not posted for financial gain but the poster knew or should have known that the content they linked to was illegally published the poster is also guilty of copyright infringement.

The CJEU found that the Dutch company, GS Media, had posted both for profit and with knowledge they were linking to unauthorized content. However, the court was notably sparse as to the details of what counted as “for profit.” This means that the law, while certainly a boon to content creators seeking to protect the works they put on the internet, leaves many businesses in lurch.

The presumption of copyright infringement, barring any other legal defense, is something quite uncommon in law. Does a poster have to profit from the link itself? Is it enough that the website with the link makes profit from additional web traffic? As it stands, those who directly profit from links by putting them behind a pay wall and small bloggers posting links on articles earning ad revenue could both be in the same copyright infringement boat.

What’s more, the CJEU ruling makes it clear that when a post is “for profit” the onus is on the poster to ensure the legality of anything they chose to link. This puts a pretty hefty burden on small bloggers who may not have the money or legal expertise to ensure that every link they post is above board.

As for here in the U.S. of A, this ruling is unlikely to impact the links you post on social media. However, businesses that operate internationally will have to be especially careful about what and how they post. The ruling will have a substantial effect on companies offering internet search engines, such as Google, because these companies must take extra steps to determine if their listed sites contain unauthorized material so as to avoid the effects of the infringement presumption. They also will need to deal with increased instances of demands from companies wanting them to delist links to websites that include infringing material.

EU Law Compared to US Law

These new developments abroad probably have you asking, how does U.S. law treat hyperlinks? Well, rest easy, your usual posts on Facebook are unlikely to get in trouble.  It is long settled U.S. case law that the mere posting of a link does not give rise to a direct copyright infringement claim without more. This being said, you can still commit infringement where—as in the EU—a link is posted either for profit or with knowledge of it connecting to infringing material.  However, these facts don’t create a presumption against you as they do in the EU.  Instead, they are relevant evidence in an alternative cause of action to direct infringement—contributory infringement. While in the EU these facts could now leave you on the backfoot in a claim against you, they are the bare minimum to a plaintiff establishing a claim here in the states.

In practice, unless the posting is en masse and coming from a known company with deep pockets, most links to infringing material are dealt with through the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). The DMCA provides protection for websites which host content so long as they have a statutorily compliant takedown policy in place and respond appropriately to takedown requests—requests to remove infringing content from a hosting site—from content owners. This obviously doesn’t apply where the website itself is posting the infringing links, but when it comes to links posted by private parties the expense of litigation and difficulty of identifying the person behind the computer make it preferable for content creators to focus on taking down the infringing links.

The CJEU ruling has pushed the potential for copyright infringement through posting hyperlinks to unprecedented levels. Unless these changes make the unlikely jump across the pond, they will only really impact internationally operating business within the U.S.  However, it is still important to be careful what links you post—especially if you make any sort of profit off those posts.

Intangible Karaoke: Explaining the Tangibility Requirement of Trademark

A night of karaoke is often just what the doctor ordered to unwind with some friends. You’re probably just like me, having long since realized your voice likely violates some part of the Geneva Conventions and adapted a strategy of songs that require no ability to sing—my go-to is “Baby Got Back.” You probably also constantly wonder about the intellectual property status of karaoke tracks, just like me. Even if you haven’t considered it before, the courts have recently addressed that very issue and in doing so addressed tangibility—a rarely discussed requirement of trademark law. In doing, so they’ve given me an excellent opportunity to share my strange love of intellectual property law by explaining some of the finer points of trademark law.

The case pits Pheonix Entertainment and Slep-Tone, producers and distributors of karaoke accompaniment tracks, against a number of pubs out of Illinois. Slep-Tone argued that the pubs were violating their trademark by making unauthorized copies of their karaoke tracks, then playing them. Slep-Tone argues that, because the karaoke tracks bear their “Sound Choice” trademark on their display screen, karaoke singers are confused into believing they are hearing authentic Slep-Tone karaoke tracks. Thus, Slep-Tone alleges that these pubs have infringed their trademark and trade dress by passing off their unauthorized versions as Slep-Tone tracks.

The court, however, was having none of it and promptly shut down Slep-Tone’s trademark claims. First, because of their lack of tangibility. Second, because of what the lawsuit really is—a copyright lawsuit trying to masquerade as a trademark suit to overstep Slep-Tone’s rights.

Trademark Tangibility

Just to start with the most basic of the basics, a trademark is any word, name, symbol, or device, or any combination thereof, used to identify a person’s good and to distinguish it from those goods manufactured or sold by others. Trade dress is essentially businesses’ recognizable overall image and appearance—commonly found in the context of packaging or the appearance of premises. Trademark or trade dress infringement occurs under federal law where somebody uses a registered trademark without permission in a way that confuses the average consumer as to source or sponsorship. State law can sometimes expand this protection where a mark or trade dress is not registered, but Slep-Tone had long registered both its mark and dress.

In most cases, a trademark infringement claim will hinge on the strength and validity of the mark as well as whether consumers were actually confused. In this case, the focus was on whether a karaoke track is a good such that it could be protected by a trademark in the first place.

Case law has established that it is a consumer’s confusion about the source of a tangible good sold in the marketplace by a defendant accused of infringement that gives rise to a claim of trademark infringement.  The pubs didn’t sell anything, they just played the unauthorized tracks.  The only thing that a consumer might interact with is the intangible content of the karaoke tracks, not the physical discs the tracks come on.  When a customer hears a song, they at most think that the music on the track is from Slep-Tone—which it is.  There’s no confusion about the tangible good the track is on, so there cannot be trademark infringement.

Some non-tangible things, such as a plumbing service, can have their brand protected by something called a service mark. However, that didn’t apply to Slep-Tone’s products and they had no service marks to protect.

I should also clarify that just because a good is digital does not mean it isn’t a tangible good. From iTunes tracks to Kindle Books, many digital products are sold in manner that qualifies them as a tangible good.  However, the bars that are being sued aren’t selling copies of the karaoke tracks. They also aren’t showing their patrons the digital files of the tracks and passing them off as their own. While somebody picking a karaoke track would see Slep-Tone’s Sound Choice trademark as they select their track through the display component of the karaoke tracks, this wouldn’t confuse them as to source of the actual tangible good here the physical discs containing Slep-Tone’s tracks.

Trying to Trade Trademarks with Copyright

It’s not surprising that Slep-Tone’s claim has such a tortured fit to trademark. To be frank, Slep-Tone is essentially trying to use trademark to bring what amounts to a copyright claim for infringement through derivative works. Attempts to use trade mark and trade dress to essentially duplicate copyright protection have become more frequent in recent years—even the lawsuit discussed here is only one of over 150 identical suits brought by Slep-Tone. This is no surprise because, while Slep-Tone does own a trademark, they do not own a copyright on any of the works that are on their karaoke tracks. Were one of these lawsuits ever successful, the precedent it set would be a serious problem as trademark is an intellectual property tool with essentially unlimited duration. Copyright, while congressional extensions may seem to make the duration unlimited, has defined limits on how long it can last.

Beyond the scope of protection issues, trademark and copyright also serve very different goals. The aim of copyright is primarily to promote creativity by offering a reward to those who create new works. Trademark, on the other hand, is aimed not at promoting creativity and invention but instead it is a commercial tool to ensure fair competition by preventing deceptive use of source identifying marks.

Copyright certainly protects against unauthorized reproductions and performances of a protected work. If Slep-Tone owned any copyrights they would have a heck of a case.  However, they own no copyrights and have instead attempted to overreach the bounds of their trademark.  Copyright and trademark each have their own body of law for a reason.  If trademark is allowed to bleed into the realm of copyright law, the unending duration of the protection on trademark will consume copyright whole and expand the protections of a trademark far beyond the appropriate bounds. Fortunately, Slep-Tone has been shut down here.  Here’s hoping they get shut down in their other 149 plus cases.

No Thank You: Trademarking Common Phrases

Thanking your customers seems like a pretty important business practice. After all, what business could exist without them? Citigroup Inc. may have a leg up on the competition, because, according to them, their trademark on the phrase “thankyou” prevents other from using “thank you” or even “thanks” in their marks.

Citibank has had the phrase “thankyou” protected through several different trademarks since 2004. It uses the marks as part of a loyalty and rewards program it offers its customers. On June 2, AT&T started using the term “AT&T thanks” as part of its own rewards program. In response, Citibank filed suit. They argue AT&T’s use will confuse Citibank consumers given how long they’ve been using the “thankyou” mark. They say this is especially true because AT&T and Citibank have credit cards that are branded by both companies.

AT&T has responded to this lawsuit, saying “This may come as a surprise to Citigroup, but the law does not allow one company to own the word ‘thanks’ …we’re going to continue to say thanks to our customers.” This statement is a bit ironic, considering that AT&T recently got a trademark on their “Thanks” and “AT&T Thanks” marketing campaigns. However, understanding how trademarks work may clarify their statements a bit.

Trademarking Miss Manners?

Citibank’s lawsuit claims that the AT&T mark infringes their own “thankyou” mark. They are asking the court to put a stop to AT&T’s marketing campaign and order AT&T to pay them an unspecified amount of damages. At first glance, this looks patently ridiculous. The idea of one company controlling the use of something as basic as saying “thank you” seems impossible. However, the legal realities of the situation may surprise you. Thank You 2

Trademarks provide protection to marks and logos with the goal of preventing others from freeriding on the good will you build around a brand. They can be a word, phrase, symbol, or design that identifies the source of goods or services.

To be clear, trademark doesn’t prevent you from using these phrases in your day to day life. Having a trademark on a word or phrase also doesn’t necessarily lock everybody else out of the mark. A trademark is specific to the genre of product you actually make and the places you actually sell or may sell it.  For instance, there are six different companies that have a trademark on the word “trademark.” However, registering a trademark is not the same as having an enforceable trademark. It’s fairly common for trademarks to be taken to court only to be rendered invalid.

Where a competitor uses an exact replica of your mark, there is a pretty open and shut case of trademark infringement so long as you have registered a valid trademark. On the other hand, when two marks are similar, the trademark infringement analysis gets a bit more complicated. The focus becomes how likely it is that people who would buy your products might confuse the alleged infringer’s products for your own. The more similar the marks are in appearance, and the more similar the products the marks are on, the easier it is to establish confusion.

Another important element in a trademark infringement case is the strength and nature of the infringed mark.   The strength of the mark, how well known the mark is, changes how easily somebody might be confused. In analyzing the nature of a mark, the courts look to how creative it is. A mark that is arbitrarily related to the product it is associated with, or has a totally made up name, would receive the strongest level of protection. A mark that suggests the product would receive a lower level of protection, while a mark that describes the product could only receive protection after the public begins associating the mark with the public. Finally, a mark that actual defines the product gets no protection whatsoever.

Common phrases are not outright barred from receiving protection. In fact, they receive the same analysis that any other mark might—looking at whether they are arbitrary, fanciful, descriptive, or generic in relation to the product they are associated with. This being said, after the Boston Marathon bombing in 2014, the USPTO refused to give trademarks to the phrase “Boston Strong.” The thought process behind this was that it was so commonly used in day to day speech, from so many different sources, that the public couldn’t identify the phrase with one business.

Citibank’s Case

In a rewards program, with the goal of thanking customers, “thankyou” is likely descriptive at best. What’s more, while Citibank has used thank you for many years, it seems unlikely that they are what the average consumer associates with the phrase. What’s more, if the phrase “Boston Strong” was so integrated into the public consciousness as to be ineligible for trademark, then the phrase thank you would almost certainly raise the same issues.

Even if the trademark can receive protection, proving confusion seems extremely difficult here. A large part of a trademark infringement claim is establishing that consumers will confused as to the source of goods. The AT&T mark has “AT&T” right in the name, it seems unlikely somebody would think it’s coming out of Citimark.

However, this is not an open and shut case—despite how ridiculous it seems. The fact that Citigroup’s marks are registered gives them a presumption of validity. In other words, it will be AT&T who needs to prove that the “thankyou” marks are invalid. What’s more, the fact that AT&T and Citigroup have done business together—combining their branding on credit cards—could contribute to a consumer being confused.

Frankly, this case is a silly one. However, the fact that the U.S. Trademark and Patent Office has granted Citimark’s trademarks—and that they have used them for so long—makes this more of an uphill battle for AT&T then you would expect. As this case progresses, it has a chance to create case law redefining how trademark deals with especially common phrases.