Posted on Mon, Oct 17, 2011
Steve Davis was recently appointed to serve as Co-Chair, along with Los Angeles attorney Mark Sonnenklar, of the Legislative Subcommittee of the California State Bar Business Law Section’s Cyberspace Committee.
The Cyberspace Committee is a standing committee of the Business Law Section of the California State Bar. The Committee focuses on the law relating to the Internet and cyberspace and related technologies. Its primary tasks are to monitor legislation and judicial opinions relating to cyberspace, keep Business Law Section members abreast of developments in the area, and to host educational programs relating to cyberspace.
The Legislative subcommittee focuses in particular on federal and state legislation relating to cyberspace. One of its priorities in the upcoming year is to improve communication with legislators and their staff about cyberspace-related bills.
Along with his appointment to the Subcommittee, Steve also was appointed Co-Vice Chair of the Cyberspace Committee as a whole.
Posted on Mon, Aug 29, 2011
Mark Leonard will co-chair a panel on intellectual property law issues in political advertising at the California Political Attorneys Association’s ("CPAA") annual retreat in Monterey, CA on September 10, 2011. Mark will provide an overview of common trademark, internet and social media issues that arise in political campaigns and address strategies on how campaigns can avoid IP infringement and privacy law violations. Intellectual property law issues are arising more frequently with each election cycle and Mark has advised numerous campaign organizations, officeholders, interest groups and political parties on a variety of intellectual property and defamation law issues.
The CPAA is a nonpartisan California nonprofit corporation that provides a forum for the exchange of information between and among the members of the Association regarding political law and takes and presents positions on proposed legislation, regulations, and policy matters before appropriate state and federal agencies.
Posted on Mon, Aug 01, 2011
Mark Leonard will offer his annual California Lawyers for the Arts sponsored presentation “Trademark Law For Artists” on August 4, 2011 at 6:30 at the The Center for Contemporary Art, 1519 19th Street, Sacramento, CA 95811. Mark will provide an overview of trademarks, including how to search for potentially conflicting trademarks, registering and maintaining trademarks, using other’s trademarks in artistic works and more. For information on how to register for this event please visit California Lawyers for the Arts’ website.
California Lawyers for the Arts is a non-profit service organization that provides a variety of services for artists, assisting them with referrals to attorneys, managing a variety of dispute resolution services, sponsoring educational programs and presentations, issuing publications, and acting as a resource for information for artists of all disciplines and art organizations.
Posted on Wed, Jul 20, 2011
Steve will present an overview on copyright law for artists tonight, July 20, 2011, at 6:30 p.m. at the Barton Gallery, 1723 I Street, Sacramento, California.
The presentation will cover a broad range of topics on copyright law: what copyright law covers, how long copyright lasts, how to register a copyright, who owns the copyright, and how you can tell if one piece of art infringes the copyright in another. His talk will emphasize the doctrine of "fair use" in incorporating preexisting works of art into new art, with specific examples and illustrations.
The presentation is part of a regular series of workshops sponsored by California Lawyers for the Arts, an organization that serves as an informational resource for artists and also provides mediation and arbitration services. The cost of the program for CLA members is $10 and for the general public is $20.
Posted on Wed, Jul 20, 2011
For the third consecutive year, Mark Leonard has been selected by Northern California Super Lawyers Magazine as a Rising Star in the area of intellectual property litigation. Super Lawyers Rising Stars recognize the top up-and-coming attorneys in the state who are 40 years old or younger, or who have been practicing for 10 years or less.
Posted on Mon, Jun 27, 2011
One of the most common mistakes a business makes regarding its intellectual property is failing to conduct a comprehensive trademark search before opening its doors or offering new products or services. That mistake can be costly if the mark chosen by the business is similar to one that is already being used by a related business, potentially resulting in significant rebranding and litigation expenses.
The failure to conduct a trademark search is such a common mistake likely because there are a number of myths that cause businesses to believe a search is unnecessary. For business names, a very prevalent myth is that there is no need to search if the Secretary of State’s office approves the name of a corporation or limited liability company. The Secretary of State’s name approval process uses criteria different from trademark law and only checks against corporate and limited liability names registered with the state. It does not does not consider federally registered marks, partnerships, sole proprietorships, business entities in other states, or even state trademark registrations. Accordingly, trademark conflicts can arise between businesses in the same state that have both had their names approved by the Secretary of State.
A second myth is that it is sufficient if no identical matches are found after searching a mark on the Internet or United States Patent and Trademark Office (“USPTO”) records. Trademarks need not be identical for a conflict to arise, phonetic similarity or similar meanings are sufficient. These searches are also incomplete because trademark rights are acquired through use not registration and many businesses do not advertise on the Internet. Thus, these searches may miss potential conflicts.
Even established businesses should conduct searches for any trademarks they use that have not been registered with the USPTO. As we discussed in a prior post, federal trademark registrations confer a nationwide right of use and conflicts with unregistered marks may arise many years after they began to be used. Both established and new businesses should consult with an experienced trademark attorney to determine an appropriate search strategy and to properly understand the search results.
The need to conduct trademark searches are only one of many intellectual property issues that businesses face. For other common issues, please review our intellectual property checklist.
Posted on Tue, Jun 21, 2011
The efforts of the California legislature to regulate privacy in social media received a setback on June 2, 2011 when the California State Senate for the second time refused passage of a Senate Bill that would require social media networks to adopt default settings restricting the display of their users’ personally identifiable information.
The bill, S.B. 242, known as the “Social Networking Privacy Act,” was introduced by Senator Ellen Corbett earlier this year. The bill required social media networks to adopt default settings prohibiting the display of “personal identifying information”, such as address, telephone number, driver’s license, social security number, credit card numbers, and other information. It also required the networks to advise users of their ability to change the settings for display of personal information in “plain language.” Finally, it required networks to remove personal identifying information “in a timely manner” upon request.
Supporters of the bill argued it was necessary because studies show many social media users are unaware of how much private information they make unavailable on social media sites. Opponents, on the other hand, argued there was an insufficient demonstration of a need for the new law, that it would result in less privacy, and that it unconstitutionally infringed the free speech rights of social media users.
Ultimately, the bill fell two votes short of a majority in the State Senate. Online privacy remains an issue of interest to the state legislature, however, and other bills remain pending.
Posted on Wed, Apr 13, 2011
Steve will deliver a presentation on “Copyright Infringement and Fair Use in the Visual Arts” to the Folsom Arts Association at its monthly meeting on April 28 at 6 p.m. at The Gallery at 48 Natomas Street.
Steve’s presentation will focus on the following topics:
- How to prove a claim of infringement of a work of visual art. In this part we’ll go over the law and the elements of an infringement claim.
- How to prove a work is similar to another. The emphasis of this part will be what it means for one work to be similar to another, and how one proves that one work is substantially similar to another.
- Guidelines for the defense of fair use. Not all use of a copyrighted work is infringement. In this part of the presentation we’ll discuss what the elements of a fair use defense are and, more importantly, draw upon real world examples to provide meaningful guidance to working artists.
The Folsom Arts Association is dedicating to cultivating and supporting art appreciation in the Folsom area. For more information, please see its website here.
Posted on Wed, Feb 02, 2011
Businesses that conduct e-commerce should pay close attention to a new bill recently introduced in the California State Senate. State Senator Joseph Simitian is taking another crack at heightened data security breach notice requirements with his recent introduction of Senate Bill 24, a duplicate of last session's Senate Bill 1166, which was in turn nearly identical to 2009's Senate Bill 20.
The purpose of this legislation is to strengthen requirements of notices of database security breaches. The first such legislation was enacted in 2002, requiring any person or entity that maintained a data system to send notice of a breach of the system to any California resident whose data was taken by another without authorization. Cal. Civil Code § 1798.82.
As more consumer information is placed online, unauthorized attempts to access such information are increasing as well. According to the Privacy Rights Clearinghouse, since 2005 there have been over 500 million breaches of sensitive consumer information such as medical records, social security numbers, and credit cards. <http://www.privacyrights.org/500-million-records-breached>
Senator Simitian's most recent effort is an attempt to standardize what the notice must say. Senate Bill 24 requires the security breach notice to include, among other things, a general description of the type of information breached, a general description of the breach, and toll-free telephone numbers of major credit reporting agencies if the breach exposed a bank account or credit card number, social security number, driver’s license, or California identification card number.
If the breach involves more than 500 California residents, it also requires the person or entity or agency to provide notice to the attorney general.
Both Senate Bill 20 and Senate Bill 1166 were supported by many consumer protection groups but opposed by some companies and industry associations that argued the additional notification requirements were unnecessary and unhelpful to consumers. Both bills were passed by the legislature, but vetoed by Governor Schwarzenegger.
With a new Democratic governor having taken office, it appears likely this time around that the bill will be signed into law, adding to the notice requirements companies and individuals will face after breaches of their data systems. You can monitor SB 24’s progress on the Official California Legislative Information website.
Posted on Fri, Dec 24, 2010
In previous blog entries we’ve written about the importance of choosing and registering a trademark wisely. Equally important – but often neglected – is maintaining a trademark registration once it has been obtained.
A federal trademark registration is a valuable asset, but it may be inadvertently lost when it is time to renew the registration. A registration must be renewed between the 5th and 6th year after registration. For example, a registration that issued on December 1, 2005 may first be renewed on December 1, 2010, and it must be renewed by December 1, 2011.
A second renewal is due between the 9th and 10th year after registration and every 10 years thereafter. Some registration owners mistakenly believe that the United States Patent and Trademark Office (“USPTO”) will send a notice when it is time to renew a registration. In fact, the USPTO does not send such notices, nor does it inform the owner when a registration has been cancelled for failure to renew.
To help prevent an inadvertent cancellation, registration owners should ensure that they calendar each renewal date. One advantage of using an experienced trademark attorney to obtain a registration is that such attorneys maintain dedicated trademark calendaring systems and will remind registration owners about their renewals well in advance of the renewal deadlines. For registration owners who have obtained their own registrations it is also a good practice to retain a trademark attorney to track renewal deadlines.
By heeding the proper deadlines and taking care of the registration renewal requirements in a timely manner, trademark owners can preserve the valuable assets they have in their federal trademark registrations.