IP & the Internet

Data Privacy

Posted on by Gavin Law Offices


Data Privacy

For businesses, data privacy and protection has become an important aspect of everyday operations.  Data breaches, such as those seen in the news at large companies including Target and Equifax, can result in costly regulatory compliance requirements and damage to a brand’s reputation.  Businesses that wish to adopt data protection “best practices” need to be aware of the software their company uses and how that software could contribute to a disaster such as a data breach.  A lack of proper policies and procedures governing the use and maintenance of software products can lead to serious consequences down the line.

First, what is Open Source Software?

Open Source Software is the byproduct of a movement in the software development community that wants software development to be an open and collaborative process.  Anyone can access and edit the source code for open source software—source code is the text used by software developers to create and edit a program.  Most commercial software products (or “proprietary software”) do not allow users to access or edit the software’s source code.  Consumers that purchase a proprietary software product are usually required to sign or electronically “accept” a license stating that they will not copy, edit, or perform any other restricted actions to the software.  For example, think of purchasing Microsoft Office (a proprietary software product), and the long list of restrictions in the license a user must accept in order to use the program.  In contrast, open source software products usually have less restrictive licenses, and many open source software programs are free to use.

Open source software is usually free? That sounds great!

Open source software does have many benefits: it is often free to download, users can modify the software to fit their particular needs, and an extensive community of developers work on open source software programs.  Many people use open source software without even knowing it, including popular programs such as WordPress and Mozilla Firefox.  The open source community works to monitor for any hackers and attempts to quickly fix and update open source software programs, but even this is not enough to mitigate all threats. 

So, there are risks associated with using Open Source Software? 

Yes.  A misconception exists that since open source software is usually free, that there are no strings attached to using such software.  In reality, open source software requires quite a bit of maintenance. 

  • Users need to monitor for announcements about security-related issues or updates to their open source software products.  Open source software users who do not understand this responsibility, or who ignore notices and updates, make themselves vulnerable to hackers. 
  • Because of the open and collaborative nature of open source software, the source code is available to the public.  This means that hackers can access the code and make malicious changes, or a well meaning developer can make a mistake for a hacker to exploit. 
  • Users need to understand the open source software’s licenses and comply with any requirements.  Failing to comply with an open source license can result in a lawsuit.  
  • Open source software typically does not offer warranties or indemnification, any legal risk associated with using the open source software product traces back to the user himself.

Are there any examples of open source software leading to a data privacy or security issue? 

Yes.  A hacker can wreak havoc regardless of the type of software.  The significant difference is that a company using open source software is responsible for vigilantly checking for any issues with the software and making fixes themselves. A company using proprietary software company, however, has accept to customer support and security updates.  Equifax’s historic 2017 data breach was traced back to a vulnerability in open source software they used.  Equifax saw the notice about the software’s vulnerability and information about how to fix it, but left the problem unresolved for too long.   Hackers noticed the open source software had not been updated and took advantage of this vulnerability to access the personal information (including social security numbers and addresses) of over 150 million U.S. citizens. 

What can be done to mitigate the risks of using open source software?

Open source software can be a great resource for businesses, but it needs to be used properly.  Hiring employees who understand all the requirements and risks associated with using open source software can be expensive, but a lawsuit or security issue like a data breach could be even more costly.  Businesses who use open source software should have policies and procedures that require all open source software usage to be tracked, all notices and updates to be monitored, any relevant changes or updates to be made correctly and quickly, and for all license requirements to be complied with.  At Gavin Law, our attorneys can help users understand licenses and license requirements as well as draft these crucial policies and procedures for employees.

 

Black Friday, Cyber Monday, & Trademark Law

Posted on by Gavin Law Offices

GLO readers, did you take advantage of any Black Friday and Cyber Monday deals? Millions shop, billions have been spent, and businesses may be thinking of ways to use “Black Friday” and “Cyber Monday” to promote the sales that their companies will have on these days. The question is – When it comes to trademarks and potential infringement, should companies be worried about using these terms in their marketing?

Using catchy phrases and slogans can create a lasting image with customers and allows companies to create brand recognition and increase the potential for sales. Acquiring trademarks for a business’s intellectual property protects a business from copycats and provides legal remedies. Companies (some more than others) diligently patrol the use of their trademarks and pursue infringement not just for monetary damages, but so that they do not lose their trademark or its marketing power.

The short answer to whether companies should be worried about receiving a cease and desist letter or otherwise for using “Black Friday” or “Cyber Monday” in their marketing is: probably not. However, it is worthwhile to understand why this is, and when businesses do need to worry.

Why are “Black Friday” and “Cyber Monday” okay for businesses?

If a business had to avoid using “Black Friday” or “Cyber Monday” the way they evade using “Super Bowl” and “March Madness” in their advertisements, no one would be able to refer to their sale as the “Black Friday Sale”, or “Black Friday Deals”. However, it turns out that no one has control of these terms in the same broad way that other companies have over trademarks.

A search for “Black Friday” on the U.S. Trademark Database reveals 38 “Black Friday” trademarks or marks using “Black Friday” with another word or term (ex: Black Friday Store). The live marks for “Black Friday” include one for a beer, a computer game, and an individual in Cleveland, Ohio for advertising and marketing services.

These examples help demonstrate an important principle of trademark law— trademarks only cover the registered use of a specific good or service – meaning that unless someone uses Black Friday to market a beer, computer program, or advertising services, they are likely not going to run into any problems. A search for “Cyber Monday” turns up no trademark for the exact phrase, though there are several variations (ex: TGI Cyber Monday).

So, why has no one else registered Black Friday or Cyber Monday as a trademark?

Depending on who you ask, many say that “Black Friday” originated in Philadelphia as a phrase used to describe post-Thanksgiving traffic.  Over time, it developed into a colloquialism for retail services the day after Thanksgiving. It may seem like a great idea to register a trademark for “Black Friday” or “Cyber Monday” for everything you can think of so you have a monopoly on the terms. However, you cannot register any phrase you want as a trademark – there are specific rules you must follow.

The USPTO does not allow the registration of generic words or phrases. For instance, a company that makes computers cannot trademark the word “computer” to sell its goods. It is considered generic, and too likely to be used in the course of daily business for many businesses in the same industry. A business can use a generic term if it does not fall within the industry, though. For example, Apple Inc. is allowed to use “Apple” and the apple logo to sell computers because the word is not generic for the sale of computers. The word apple makes you think of the brand that sells computers instead of just the fruit, or instead of just computers.

Previously inventive terms can also become generic. If due to its popularity or significance, the brand’s trademark has become the generic name for, or synonymous with, a general class of product or service (usually against the intentions of the trademark’s holder) then the company may lose its trademark. Examples of companies that are constantly facing this issue are “Xerox”, “Band-Aid”, and “Kleenex”. The mark BLACK FRIDAY as registered in connection with beer avoids this issue because it is not a generic term for beer. “Black Friday” has become the generic term used for the day for sales after Thanksgiving, and “Cyber Monday” for online sales the following Monday. Therefore, companies may use these terms to promote their own sales on those days with little risk of trademark infringement – no one owns trademarks for that type of use, and likely no one can register the terms due to them being generic promotional terms.

Black Friday – not just in the United States

While we think of Thanksgiving as a holiday unique to the United States and Canada, it has spread globally, as has the awareness of Black Friday and Black Friday deals. Picking up on this, Hong Kong-based company Super Union Holdings Ltd. (“Super Union”) registered the trademark “Black Friday” in Germany for almost all goods and services. Super Union, not unlike the NFL and NCAA, diligently patrolled the use of its mark, and even more diligently enforced it. When other businesses used “Black Friday”, Super Union sent warnings, and several injunctions to stop using the term were issued. Eventually, companies filed cancellation requests against the registration. PayPal, itself not the target of any enforcement measures, decided to join the cancellation proceedings specifically to take a stand for the rights and interests of retail. One company that filed a complaint stated that “Black Friday” was a purely promotional term in widespread use around the world and well-known in Germany, and that its registration as a trademark was illegitimate in the first place.

In April 2018, the German Patent and Trademark Office (DPMA) finally declared the term free for all to use in commerce, signaling the end of Super Union’s trademark monopoly on “Black Friday” in Germany. DPMA considered that lack of distinctiveness, being that the term was generic, was enough to cancel the mark.

Conclusion

If this all makes you nervous about whether or not a word or term is a registered trademark or not, here is some advice: if you see the ® for a registered trademark or a ™ for a trademark in the process of being registered, you are being notified that you must not use this trademarked phrase without permission in any other business. The best place to be sure of the status of a phrase or name is the U.S. Patent and Trademark Office (USPTO) website, which anyone can access for free. As always, you should contact an attorney before you use a trademarked word or phrase in commerce to avoid any issues stemming from potential trademark infringement.

Happy shopping!

Trails & Shores

Posted on by Gavin Law Offices

 

Meet Gavin Law Offices Client: Meade Fitzgerald, Owner of Trails & Shores.

Trails & Shores is an outdoor-themed apparel company established in 2016. They are a team of outdoor enthusiasts with professional experience in the design, print, and apparel industry.

Like many business owners of creative products and services, Trails & Shores works closely with the Gavin Law Offices team for their intellectual property legal needs, specifically for their copyright and trademarking. In asking Meade why he chose to work with Gavin, he said, “Gavin really cares about who they are serving. Gavin found a way to protect my marks in a way that I had never thought of. It has been a learning experience for me, but they have taught me everything I need to know along the way as my business has continued to grow. I would highly recommend Gavin Law Offices to other small businesses and entrepreneurs, especially in the creative fields, to handle any and all intellectual property and business related legal services.”

West End law firm sweeps into N.C. with new attorney

Posted on by Gavin Law Offices

Gavin Law Offices, which handles intellectual property matters for clients, earlier this month opened an outpost in Raleigh, North Carolina, after picking up attorney Alan Etkin. It’s the firm’s first office outside of Virginia.

Founder Pam Gavin said the expansion is similar to its January push into Charlottesville when longtime solo attorney Elva Mason Holland joined the fold.

“This is very much a similar story,” Gavin said of Etkin.

Etkin, who earned his law degree from Emory University, handles a variety of business law issues for closely held corporations.

“Alan and I worked together for years. He was in house with a big client,” Gavin said. “The company he was with was sold and he was doing his own thing and I said, ‘Why don’t we tackle this together?’”

Gavin also liked the idea of having an office in Raleigh to tap into that area’s concentration of tech firms and startups, a ripe environment for the firm’s bread-and-butter IP practice.

“It’s a great market for tech and intellectual property,” she said.

The firm, founded about 15 years ago after Gavin’s stints at McGuireWoods and Reed Smith, now has an attorney headcount of seven.

Gavin said she’ll keep her eye out for future growth through similar deals with attorneys.

“I’m always plotting and planning,” she said. “I’m just going to continue to grow.”

Click here for the full article on Richmond BizSense