IPOs for Patents?

According to the CNN.com article, “The first financial exchange to sell patent-licensing rights, poised to launch early next year, is being greeted by both optimism and concern.” The concept is intriguing, especially considering that the costs associated with prosecuting, maintaining and enforcing patents can be as much as starting some companies.

Link to the story.

Hat Tip to Zies, Widerman, Malek for posting a link to this story on Twitter.


The 10 Worst Holiday Business Gifts

I came across this great bit of advice from the Minneapolis/St. Paul Business Journal and thought I would share.
I didn’t think it needed to be said that rotten food is a bad gift, but apparently it did since that made number 9 on the list.

Link to the slide show


Copyright Law and Rare Languages

The William Mitchell Law School’s Intellectual Property Clinic has undertaken a great project to help secure the rights to create translations of children’s books into Dakota and Ojibwe, two languages in danger of dying out. Hopefully, these translations will help to keep a big part of Native American and Minnesota culture alive.

One of the exclusive rights copyright law grants the authors is to have control over “derivative works” which includes translations into other languages. This can be a problem if you are working to preserve a language but must ask permission to translate. Publishers may not want to take the time to negotiate a translation if they don’t believe there will be a large market for those translations. As with many things in life, sometimes it just takes some dedicated people to keep pushing.

Here is a link to the story.


Happy Thanksgiving!


New FTC Guidelines for Bloggers Takes Effect December 1st.

Starting on December 1, 2009 the Federal Trade Commission’s new guidelines for testimonials by bloggers, Tweeters, Facebook-ers and others will take effect. These guidelines are set to help determine whether or not paid testimonials or endorsements are covered by the FTC Act. Bloggers who are paid by a company in exchange for a positive review of its products are making endorsements and may have to disclose any financial ties to that company.

Link to the FTC Press Release.
PC World’s Guide to the new guidelines


MinneBar was a success!

I just wanted to say that the MinneBar event hosted by Best Buy yesterday was a great success. There were lots of great presentations and discussions. But most of all, there seemed to be an excitement and energy about building a startup and technology community in the Twin Cities that I hadn’t felt or noticed before. Congratulations to everyone who helped make it happen!


Probelms with Contextual Advertising

Google, Yahoo! and others offer advertising services that can pluck words from a web page to create customized advertisements. Contextual Advertising as its called, is a really cool feature but there are some potential problems that companies considering online advertising campaigns should consider.

1. They can make you look bad.

See this Business Insider story about the worst Google Ads ever. The ad in question appeared with a news story about terrorists and offered a Terrorist Certification program. Probably not what the advertiser had in mind. I hope. This isn’t necessarily a legal problem, but it can be embarrassing and costly to correct. If you are using an algorithm to create your ads, you need to be aware of what that algorithm could create as output.

2. It could violate privacy laws

AOL was recently sued for its contextual advertising program because it was allegedly gathering private information in order to better target the ads. Many times the information gathered by these services are not tied back to any one particular user, but it is something to be aware of. Wired magazine recently ran an article about how easy it becomes to identify someone just by collecting a few facts. Zip code, employer, car model. . . none of these would identify you by themselves, but put a few of them together and very quickly you can have an individual identified.

3. It could be trademark infringement

Keyword based advertising is big business for search engines like Yahoo! and Google. Its also been a hot topic in trademark law. If you select a trademark to trigger your advertising, you could be infringing. Its even more certain that you would be infringing if you have that trademark appear in the text of your ad. Just about any word could be a trademark so context is important.

4. It could be false advertising

False advertising laws vary from state to state but can include anything that creates a misunderstanding with a consumer. If your ads are designed to grab words from web pages be sure you offer goods or services that you are now claiming to offer.

Contextual Advertising is a powerful tool and I think we will see much more of it rather than less. But like any powerful tool it should be handled carefully.


Why You Should Register Your Trademarks

It is true that you can legally protect a trademark the moment you start using it. So why go for the extra effort to get a federal registration? Here are a few reasons:

1. Increased Certainty. Once registered, you can be relatively certain that you actually have a trademark. If you are relying on common law rights only, you may not actually have something that can be protected. It may be too generic, or already in use or have a number of other problems that will prevent you from actually enforcing it.

2. Automatic protection in all 50 states. If you don’t register, you only have a trademark in the areas you are using it. If you are in Minnesota and only sell in the upper Midwest, you may not be able to stop a competitor in California.

3. Customs enforcement. Once registered, you can record your trademark with US Customs who can monitor imports for infringing goods.

4. Monetary damages. Though they are not frequently awarded, it is possible to get damages based on the profits made by infringing goods.

5. It puts others on notice. Records at the U.S Patent & Trademark Office are public. Courts will assume that anyone using a similar name had known or should have known about your trademark.

6. You can more easily stop cybersquatters. If a domain name is registered that is infringing your name, one of the things you will have to establish is that you have trademark rights. Registration is not required, but it will be much more difficult to either in arbitration or in court without one. Same goes for search keywords, adwords, etc.

7. You have an asset to borrow against. Nearly every business needs to borrow money at some time. It is easier to do so if you have assets to use as collateral. A bank can much more easily obtain a security interest in a registered trademark.

8. ®espect. This one is a bit vague, but a company that knows and uses its legal rights signals to the world that it should be taken seriously. Trademark registration is one small piece of that, but its an important one.


Three Strikes Law Moves Forward in UK

I saw this article on Slashdot which was a bit troubling even for an attorney who has been on the plaintiff’s side of copyright disputes. Basically, the proposed “three strikes” law in the UK as well as similar ones in France and elsewhere would kick people off the internet if they are accused of infringing copyrights three times. That’s right even when simply accused.

This of course is a serious free speech issue which I don’t doubt others have picked up on already. The French law may be unconstitutional, and if a similar law were proposed in the US it would no doubt face First Amendment challenges.

The problem with efforts like the “three strikes” laws for the copyright holders is that its bad for business. Whatever business model overtakes distribution of physical copies in the future, the internet will be a major part of it. What those models will be is still uncertain. But it makes no sense to remove your customer base from the channels of commerce. It will be difficult to sell subscription services to people who cant access them.


Congratulations to the William Mitchell IT Moot Court Team!

I had the privilege of traveling to Chicago to coach Erika Overby and Bob Larson from William Mitchell College of Law at the John Marshall Law School IT and Privacy Law Moot Court this last weekend. Though our team didn’t advance, they did a great job and should be proud of the work they put in to their performance. Congratulations!