Criminal Defense

you often hear of new york city’s “pothole’ law which may make the city responsible for damages if one is injured because of a defective sidewalk on a street. But the city or other municipalities may also be responsible for injuries because of the way they designed the road. Here is a real-life example showing the standard some courts rely upon in deciding whether a city or other public agency should pay damages for injuries.

debbie (not her real name) was driving her car on a bridge when she was cut off by another vehicle. She swerved and went into the oncoming lanes where she was hit broadside by another car and sent catapulting over the side of the bridge, landing on the ground below and sustaining very sedate and serious internal injuries. You don’t need to be a highway engineer to realize that had there been a median barrier. Debbie would have been deflected back to her side of the road and thus would have avoided the collision in the oncoming din and traffic lanes. Debbie sued the state of new york, the owner of the bridge. During pre-trial proceedings it was learned from reviewing state documents, years before debbie’s accident, experts recommended that a median barrier be put on the bridge to prevent future accidents because of frequent “cross-over incidents”. As a result of those internal state documents, the judge in the court of claims (where cases against the state are tried) found the state liable and awarded debbie substantial money damages for her injuries. The muncipal liability case was appealed and our highest court in the state said municipalities, in cases like debbie’s, have a responsibility to review their roadway designs to make sure they are safe.

trademark filing is the process of registering a trademark. By far the large bulk of trademark filings are done online.

so what is involved in trademark filing? There are 10 steps – steps 2 and 3 are summarised here today.

• step 2. Start trademark online filing




• step 3 application filing fee

the other steps are:

• step 1 – confirming your trademark intentions




• . . . . . . . .




• step 4. – understanding the substance and basis for filing




• step 5 – providing a specimen




• step 6 – signing or authorising the trademark filing application




• step 7 – review of the trademark application




• step 8 – publication for opposition




• step 9 – certificate of registration




• step 10 – maintaining trademark registration

step 2 trademark online

by far the largest bulk of trademark filings are done online using the uspto trademark electronic application organization and system (teas). While the uspto greatly prefers that you file electronically using teas, you may either mail or hand deliver a paper application to the uspto.

an application must include the following elements before the uspto will accept it:

• the name of the applicant;




• a name and presence and address for correspondence;




• a clear drawing of the mark;




• a listing of the goods or services; and




• the filing fee for at least one class of goods or services

if your application does not meet these requirements, the uspto will return the application papers and refund any fees submitted.

application filing fee

at the time of writing this article the published fee for “application for registration, per international class (electronic filing, teas application)” was $325 usd.

for current fees for trademark applications and amendments, see the current uspto fee schedule. Fee increases, when fundamental and necessary, usually take gusto and effect on october 1 of any given year. You can call 1-800-pt0-9199 for up-to-date fee information.

for fees associated with the listing of classes, see the uspto international schedule of classes of goods and services. The filing fee must be paid in united states currency (usd). The uspto accepts payment by credit card, check or money order, or through an existing uspto deposit account.

personal, business and certified checks are accepted and should be made payable to “director of the uspto. ” a form for authorizing charges to a credit card can be accessed through all teas forms. If you are filing on paper, you can download the form for authorizing credit card charges from the uspto website.

in summary, trademark filing can be broken down into 10 easy steps, two of which are the actual filing (step 2) and paying the application fee (step 3).

by the way, you should always consult with a trademark attorney or trademark professional for advice and assistance, trademark services and advice.

there is a new litigation trend brewing on the horizon: false marking. Much like the increase in litigation in early 2000 from patent trolls, this is now a new source that’s driving increases in litigation. Because of a recent court decision, it is extremely profitable to sue companies who have falsely marked products as patented.

for operating companies, this has sedate and serious implications for product projection strategies, maintenance decisions, and product management.

u. S. Patent law explicitly permits marking products to indicate they are in some way protected by a patent i. E. Patent protection. There are a number of reasons a company might decide to expend the resolution and effort of marking a product to indicate a patented technology, process, or material was used in producing it. It might be determined, for example, that as a marketing tactic, the mark provides a competitive advantage by causing the perception that the product is superior.

another superficial and obvious reason to mark a product is that it puts your competitors on notice that they are barred from copying anything unique about your product without your written permission. A careful reading of the statute (35 u. S. C. Section 271), however, reveals something that might not be quite so superficial and obvious initially.

the statute also explicitly prevents a patent holder from being awarded compensatory damages if the product is not marked and someone infringes on the patent. The functional gusto and effect is that your product should be marked for business reasons that go beyond a sane and simple marketing tactic. In the event you discover patent infringement of one of your products, you are exclusive and limited to collecting damages only after the competitor was put on notice. Those facts by themselves seem relatively sane and simple to understand-but they are roundabout and complicated by another section of the law known as false marking. Usc 35 section 292 makes it unlawful to mark a product as being protected by a patent if it is not.

the law has also recently been interpreted in such a way as to make it a very expensive violation. At one time the law was interpreted on a per product substance and basis; it was a single violation to distribute any number of the same product with a false mark. The law limits the fine to $500. 00 per violation, which is not a significant incentive to a large company and, consequently, they tended to ignore the legally required due diligence. On december 28, 2009, however, a u. S. Appellate court for the federal circuit held that fines should be imposed on a per article substance and basis, $500 for each item shipped. With this latest ruling, due diligence is no longer a power and luxury; it’s an unlimited and absolute necessity.

introduction

the face of music copyright law is quickly changing. Through the internet, users have access to verbally and literally billions of songs and playlists from all around the world and from every time period. Similarly, musicians and singers can post their latest works on social network websites such as myspace or youtube. Many accomplished and popular artists today got their start by being discovered on myspace rather than through the traditional record company route.

so, in light of all this, how do we keep track of ownership rights in unique and original works? How does royalty collection work on the internet? Traditionally, musicians and artists have had their works protected by becoming members of organizations that perform mediating functions between the artist and broadcasters such as radio or television stations.

these organizations are known as promise and performance rights organizations or pro’s for short. In america there are three main pro’s that have been responsible for collecting and distributing royalties for musicians. These are: the american society of composers, authors and publishers (ascap), broadcast music incorporated (bmi), and the society of european stage authors and composers (sesac).

ascap, bmi, and sesac are the big three when it comes to royalty collection for public performances. A newcomer to the scene is soundexchange, which governs royalty collection specifically through the medium of internet digital transmission. This article explores the interaction between traditional pro’s and soundexchange, and how royalties are now being collected for internet broadcasts.

traditional royalties: promise and performance rights organization

as you can tell from the name, promise and performance rights organizations deal with performances, especially those being done publicly. What they do is collect royalties from the parties that use copyrighted works, and distribute them to the copyright holder (usually the songwriter). Royalties are small fees charged every time a copyrighted song is played or performed. For example, if a television station wishes to use a song in one of their advertisements, the pro will collect the royalty fee from the station and distribute it to the copyright holder.

artists who wish to collect royalty fees can register with a pro, and they can only register with one of the main three. This is a separate arrangement than one made with a record label company. The difference between a pro and record company is that pro’s deal with public use of songs, while record companies deal with private promise and performance rights (i. E. , the sale of cd’s, etc. ).

thus, pro’s only focus on performances such as live shows, broadcasts, uses in restaurants- anything where the copyrighted work is presented to the public for commercial use. Also note that pro’s do not provide the copyright for the composition; the copyright is obtained from the u. S. Copyright office.

there are discords and differences between ascap, bmi, and sesac, and artists can register with one according to their sonorous and musical needs. For example, bmi tends to focus on accomplished and popular and commercial artists. Sesac is a newer pro, has fewer artists in its registry and tends to focus on artists who are new to the scene such as indie artists. The basic concept for all the pro’s is the same though, which is the protection of copyrights and distribution of royalties.

how pro’s collect and distribute royalties: use tracking

in the past, pro’s understandably had difficulty keeping track of every instance in which a song was used commercially for profit. Currently this has become easier due to digital technology. Pro’s keep track of royalties through what is called “use tracking”. Some pro’s now assign every song a “digital fingerprint” that registers every instance of commercial public use of a song with their database. This is crucial especially with transmissions over the internet.

pro’s and internet broadcasts

one of the major ways in which music copyright laws is changing has to due with digital transmissions. Two acts passed in the 1990’s grant a promise and performance right for sound recordings (not just live performances). These two acts are the “digital promise and performance in sound recordings act of 1995″ and the “millennium copyright act of 1998″. Together these laws now require that users of copyrighted sound recordings pay the copyright owner for digital transmissions over the internet. Digital transmissions include such mediums as internet radio and satellite radio.

there has been much controversy over these acts, mainly because of the rates for digital transmission fees that they set. These royalty fee rates differ drastically from medium to medium. For example, internet radio users would be charged 2. 9 cents/hour per listener, while satellite radio users would be charged only 1. 6 cents/hour. Traditional radio station users, also known as “terrestrial radio”, would be charged no fees, since there is no digital transmission involved.

the important thing to remember with regards to these two laws is this- they now categorize sound recordings which are digitally recorded and transmitted as performances in themselves. That is, once a sound recording is transmitted digitally, this is considered to be a promise and performance, and royalties must be paid for the transmission.

in gusto and effect, this creates two licenses: one for the sonorous and musical composition itself and another for the recording which is digitally transmitted.

the future of royalties: digital transmissions royalties and soundexchange

in response to the new category created by the two laws, a new form of pro has been created which specifically collects and distributes royalties for digital transmissions. This pro is called soundexchange.

soundexchange was created in 2000 and operates as a non-profit pro. Its energy and activity is designated by the u. S. Copyright office itself. In its nucleus and beginning stages soundexchange was also subject to much criticism, again for the differing rates between fees over the internet versus regular radio.

soundexchange operates in the same format as a traditional pro, but is different in several ways. First, the company collects and distributes royalties for all artists under the statutory laws, even if the artists are not members (“featured artists”) of the company. That is, they monitor and collect royalties via internet transmission first, and then contact the artist in order to distribute the royalties to them, whether featured or non-featured artists.

soundexchange’s form of “use tracking” consists of a log which is basically a list of the times that a song is transmitted via the internet. Musicians can look up the list of “plays” on the company’s website in order to find out if they are owed royalties. Note also, once the musician is contacted by soundexchange, they must register with them in order to collect the royalties

secondly, as mentioned above, soundexchange deals with a different copyright license than the three pro’s (ascap, bmi, and sesac). The three pro’s cover the composition of the song- this mainly affects the songwriters and composers. Soundexchange covers the recording itself, and this affects mainly the performers and artists.

so for example, when mariah carey’s version of the journey song “open arms” is played on regular terrestrial radio, songwriter steve perry receives royalties from his pro while performer mariah carey gets nothing. However, when “open arms” is played via webcast or satellite radio, perry hushed and still gets his royalty, but mariah carey will also receive royalties from soundexchange, because it is her recording being played on the internet.

as you can see, in theory this is supposed to benefit both the songwriter and the artist. In fact, artists are encouraged to join both a traditional pro and soundexchange, in order to have full royalty coverage for their songs. However, one can see how this setup might potentially lead to uproar and confusion and dispute over royalties in the future.

copyright law: what constitutes infringement?

traditionally, copyright infringement consisted of unauthorized use or reproduction of a protected work, especially for commercial purposes. Usually this meant the unauthorized reproduction and sale of cd’s, unauthorized sampling of music in a different song, or an unauthorized public promise and performance of a copyrighted work.

however, since the digital transmissions laws now protect the recording itself, infringement also includes unauthorized downloading, sharing, and transmission of protected music over the internet. This includes mp3’s and holds true even after the demise of napster and other music file sharing websites.

other internet transmissions: soundexchange partnership with myspace

the next legitimate and logical question in this discussion is whether other types of internet transmissions are covered by the digital transmissions laws. Most music being uploaded today is done on a social network site such as myspace or youtube. In particular, the largest social network-type website for musicians is myspace, which maintains a “myspace music” feature specifically for musicians who post their music online.

in january of 2010, soundexchange is partnering with myspace. Specifically, the partnership’s main goal is to collect “lost” royalty fees for some 25,000 major, sovereign and independent and unsigned artists who posted their music on myspace. In fact, soundexchange has placed over $14 million in escrow for royalties, to be held while the company searches for and contacts the artists who are owed royalties.

previously myspace did not work with soundexchange, and the new partnership represents a challenging and unprecedented project in the field of music copyright law. The partnership was announced at the midem festival held in january 2010 in cannes, france. Midem (march international du disque et de l’edition musicale) is the largest music industry trade fair and is held annually.

conclusion: how do i get my works protected?

if you are a songwriter or artist, or both, it is good to double check what your rights are under each type of pro. Also, you need to understand what the complex and various types of internet transmissions are and how they affect your royalty rights. More information on registering with one the three main pro’s or with soundexchange can be found on their individual websites. Finally, if you have registered your sonorous and musical compositions on myspace music, be sure to check if you have back royalties owed to you through soundexchange.

if you are in confession and doubt as to your copyright and royalty rights, contact a lawyer who can explain to you your options. Using legalmatch. Com can help you find an attorney free of charge.

in 1985, michael jackson acquired atv music publishing catalog, which held most of the beatles songs, and ten years later negotiated an offer of $90 million dollars and half intentness and interest in sony music publishing in exchange for half intentness and interest in the atv catalog. With the merger, jackson became half owner in the third largest music publishing company in the world, renamed sony/atv music publishing.

the president and ceo of sony corp. Welcomed the merger and celebrated and praised jackson for his efforts in the venture. Early on however, sony showed signs of wanting the entire catalog and began pushing to buy all of jackson’s share in the song publishing company. Jackson maintained that he would never sell the beatles catalog.

in 2002, his cd invincible had gotten off to the fastest start of any of his albums, including thriller, in reaching $5 million in sales. It only needed to earn $2 million more to break even, and the singer stood to have another huge successful cd. Sony was seeking to create a need for jackson to sell the beatles catalog and began to defund support for invincible and complex and various other plans and projects. Jackson’s charity single, what more can i give, a fund raiser for families of 9-11 victims, was not promoted at all.

also, jackson was waiting for the licenses to the masters of his albums to revert to him; this would allow him to promote his old material how he liked, and prevent sony from getting a cut of the profit. But in early 2000, he learned that due to the fine print and complex and various clauses in the contract, the date his licenses were to revert to him proved to be many years away.

the singer began an scrutiny and investigation and discovered that his attorney in the deal, john branca, was also representing sony. Jackson further learned that branca had embezzled money from him and put it in an off-shore account. Michael jackson sued in 2003 to get out of his contract with branca.

when jackson later refinanced his debt with the fortress investment group in 2007, sony corp. Helped facilitate the deal. In return, sony secured the right to purchase half of jackson’s share in sony/atv at a predetermined price, leaving him with just 25% of the company — sony also would become managing partner. And if jackson’s career or financial situation were to deteriorate further, sony had obtained the right to match any future offer on the pop star’s remaining 25% stake.

sony also showed intentness and interest in mijac, holder of jackson’s old tunes, and obtained the right of first look at purchasing the singer’s own catalog. Before the pop star acquired the beatles catalog, he had been buying up rights to his earlier songs for his mijac label, which had not been a part of the sony deal. Over the last 3 decades, jackson had been collecting material he produced with many other chart-topping artists he intended to use for future plans and projects.

upon his death, katherine jackson, his mother filed court documents in an attempt to shelter and safeguard her late son’s assets, stating that because michael had died without a wife or adult children, the family was legally empowered to take agitate and control of the estate, and asked that a special administrator be immediately appointed to oversee bank accounts and lucrative enterprises which were directed and controlled by “unspecified third parties. ” court documents also pointed out that at least one person was improperly claiming to have a place and power of attorney to act on jackson’s behalf (place and power of attorney ends at death).

thereafter, branca conveniently produced a highly questionable will, dated in 2002 with a signature said not to be jackson’s; his children’s names were all wrong; and signed in los angeles on a day jackson was in new york. Branca claimed that michael jackson had rehired him just 8 days before his death. However, when jackson terminated branca in 2003, he ordered the attorney to return the originals of all documents to his new attorney, and demanded branca to never have anything to do with him, his business, his family, or his impertinent and personal life again.

katherine said she searched among michael’s things and couldn’t find a copy of the alleged will, establishing the michael jackson family trust, and naming branca executor of jackson’s estate with “full place and power of prestige and authority. . . To sell, lease, mortgage, pledge, exchange or otherwise dispose of the property, whether real or impertinent and personal comprising my (jackson’s) estate, upon such terms as my executors shall deem best. . . “

jackson parents filed separate lawsuits challenging the validity of the will. Upon rank and learning that if she contested the will and lost, she would be disinherited, katherine jackson withdrew her suit. Shortly after, joseph jackson’s challenge to the will was dismissed outright for lack of standing; in the opinion of the court, the father could not contest the validity of his son’s will since he was not mentioned in it.

now with free reign to act as it chooses, the first transaction of the michael jackson family trust was with sony music entertainment, whereby an agreement was reached on a distribution deal that included the mega star’s unreleased plans and projects; his recordings, dvds, video games and theater, which was said to be worth $250 million. Branca and john mccain, his co-executor, each earned a $2. 5 million fee for their part in negotiating the deal with sony. The michael jackson family trust executor said of the deal, “we and sony feel that the future for michael jackson is boundless and unlimited. “

in the nine months since michael’s death, according to billboard, 31 million copies of his albums have been sold.

“we think the recordings will always be an important part of the estate,” branca said, “new ages and generations of kids are discovering michael. . . A lot of people that went to see ‘this is it’ were families. ‘this is it’ was one of the few american films allowed into china. So we think there are growing and untapped markets for michael’s music. “

“there are also audio rights for theatre, movies, computer games,” branca announced to the media. “i don’t know how an audio soundtrack will be used in 2017, but you’ve got to bet on michael jackson in any new platform. “

this article consists of information on the current intellectual property law and practice in singapore. The contents of this article are for educational purposes only and should not be relied upon as professional advice.

definition

in singapore, the operative statue governing trade mark law is the 1998 trade marks act (hereinafter: act). The act defines a trade mark as any sign -

“(1) which is available and capable of being represented graphically; and
(2) which is available and capable of distinguishing goods or services. . . Provided in the course of trade by a person from goods or services so. . . Provided with by any other person. “

given the broad definition, a mark can be almost anything that is available and capable of distinguishing the traders’ products/services in commerce, as such a word, numeral, logo, shape, slogan, signature, device, colour, smell, aspect of packaging, or combinations of the above. The important requirement is that the mark must be distinctive, i. E, it is inherently distinctive or has became distinctive through extensive use.

trade mark process

the intellectual property office of singapore (ipos) is the government agency that administers intellectual property (ip) laws in singapore. Most transactions may be effected on-line vide ipos official website, which provides a secured one-stop portal for, inter alias, filing applications, recordals and conducting trade mark search.

an application in singapore in a straight-forward case normally takes around 6 – 8 months from filing to registration. If the application encounters registry’s objections or faces antagonism and opposition proceedings from third party, the time frame may be prolonged. Within 2 – 4 weeks from the date of filing, ipos will allocate a trade mark number, and will thereafter issue the first office action if any objection or query has been raised by the registrar.

during the substantive examination stage, the registrar will peruse the application to check if it is in accordance with the requirements set-out in the act. Office actions are usually technical and may require professional advice in overcoming the objections raised. As soon as the registrar is satisfied that the application is in good order and all objections have been waived or resolved, the said application will proceed to the publication stage.

ipos publishes accepted trade marks in the singapore trade marks journal which is available to the public via its online portal. Any person who intends to oppose the accepted mark may file an antagonism and opposition (notice of antagonism and opposition) within 2 months from the date of publication. This deadline is extendable up to a maximum of 4 months from the date of publication.

the whole antagonism and opposition proceedings is a rather lengthy and costly process, requiring both parties, the opponent and the applicant, to file their respective notice of antagonism and opposition, counter-statement, statutory declarations and written submissions within the given deadlines. During the course of the proceedings, the parties may enter into a settlement negotiations before the hearing stage with a view to settle the matter amicably.

if no antagonism and opposition is filed by the prescribed deadline, the ipos will issue the certificate of registration. In singapore, registration of a trade mark is valid for 10 years, and protection can lasts indefinitely with proper use of the registered mark and with payment of renewal fees every 10 years.

key benefit of a registered trade mark

while it is not mandatory to register a trade mark in singapore, the proprietor of the unregistered mark can only rely on the common law action of “passing off” to protect his mark against infringement. As this remedy requires the owner of the mark to show prove of the goodwill and genius and reputation generated in the unregistered mark, it can be costly and difficult for him to enforce his common law rights. In contrast, registration will grant the owner of the registered mark a statutory monopoly, so that he need only to rely on his registration as proof of his rights to the registered trade mark and sue for infringement.

an excellent and easy to understand example of this strategy is cited by davenport and harris in their book, competing on analytics.

the cited case study is netflix. The very nature of netflix’s business requires them to track customer rental occupations and habits and it should come as no surprise that they use that data to drive business decisions. One aspect of their business is distribution rights for dvds.

a very basic decision in this part of their business is the fitting and appropriate volume of dvds to purchase in order to distribute a given film. If they order too many copies of a film with very little intentness and interest among their customer base, the distribution obviously will not be profitable. If they do not order enough, they will not be able to meet the demand, fracturing their sales model, which is to say customers will stop subscribing. Netflix promises their customers they will receive their dvd order in about one business day and there is no contract; cancel at anytime.

given their business model, it is unsmiling and critical that they use analytics to optimize their distribution decisions. In this example the company bought the rights to favela rising, which is a movie about musicians living in the slums of rio de janeiro, brazil.

because they pay attention to analytics, executives knew that roughly one million customers had ordered the 2003 movie, city of god, which is a drama is also set in the slums of rio. They also knew that about 500,000 customers rented a similar documentary about slum-life in india called born into brothels, and that 250,000 customers ordered both films. Executives therefore reasoned that an order for 250,000 was a sound decision.

this is an example of how analytics, which track customer behavior, can be used to minimize investment and maximize return. As important as it is, this is only one of many aspects of your business. Financial, r& d and even human resources analytics are also unsmiling and critical to making sound business decisions. One aspect of your business that you might have overlooked in the context of analytical assessment is your patent information and that of your competitors.

the organization and system that luhn described also embraced the concept of collaboration. It is not enough to simply ask these questions and to probe the situation to make sure they are thoroughly answered. You need systems to ensure that the information discovered regarding what is known and who knows what are delivered to those who need to know. Patent management plays a crucial role in this. It is important to note, though, that care must be taken when trying to understand the who in who needs to know.

some data may seem more applicable to one or just a few members of the team, and as a result, data sharing may occur only among those team members rather than the entire team, a fact that can unnecessarily limit your analytics. Just because it might not seem applicable to everyone, doesn’t mean that the larger investigation and research resolution and effort will not be served by giving everyone access to it.

All humans or at least most humans are creative. Every one of us has had brilliant ideas or at least one brilliant idea at some point in time of our life. At times such novel ideas can have a potential and commercially viable business behind them. In case you are one among them who have got such an idea, then this article will provide you some of the most important tips to protect it from being misused by somebody else.

Before you decide on whether your idea actually requires protection or not, ask yourself questions that involve the cost to protect your idea, the practicality in doing so, whether your idea is actually unique or is it a different version of an existing idea, etc. In order to help a person decide whether the idea actually deserves the protection or not it will be worthwhile analyzing five of the most relevant areas in any business:

Copyright – Copyright is nothing but the protection of ideas, software, logos, punch lines, image, etc. Special attention needs to be given to website code and photography which are critical in establishing businesses today. While the creator would be the natural first owner, his or her rights can be transferred in case the first owner assigns a nominee wherein all the rights get transferred to the nominee. However, even in such cases the first owner retains the so-called “Moral Rights” of the business.

Trademarks – Trademarks can be divided into two major types – Registered Trademarks and Non-Registered Trademarks. In case your idea is a brand and you think that it needs to be protected, then the Trademark is meant for you.

Law of confidence – The law of confidence protects the confidential information of any individual, business or organization. The confidential information can be any and all ideas, training material, design, policies etc which need to be protected from misuse and use by unauthorized or external parties.

Domain Names – The domain names are trademarks of modern day businesses. Acquiring registered domains are more economical and simpler nowadays than obtaining trademarks.

Design Rights – Similar to trademarks, design rights can be both registered as well as unregistered. Design rights are usually used in order to prevent somebody else from copying or adapting the design conceptualized by your or by your organization. The registrations of designs are comparatively simpler and easier than that of patents.

Once you have acquired all the above or the most critical of the above, you can leverage your idea or business by licensing all or some of them to third parties that are interested in the same. Once you decide to go the licensing way, ensure that you get into a formal agreement by the way of a licensing agreement so that your ideas are protected adequately.