Thursday, September 3, 2015

Google Tweaks Its Logo

Google recently tweaked its logo.  Its new logo uses a different font: sans serif rather than serif.  The change follows the lead of other technology companies who went through the same sort of logo transformation.  Undoubtedly, one of the ideas behind the change was to make the logo simpler.  Google explained that it was to reflect the fact that its users access its services from various platforms.  This suggests that Google's new logo is an acknowledgement of its transformation from strictly a search engine to a company with a broader array of services. 

To see the evolution of the logo, go to Google's official blog. 

Even if you are a small company, it is always a good idea to review your logo or trademarks with an eye towards freshening them up to better reflect your goods or services--or, the changing times.

Tuesday, August 18, 2015

WD-40's Formula Remains a Trade Secret

The formula for WD-40, the lubricant, rust protector, and squeak eliminator, is locked in a vault in San Diego.  Chemists invented it sometime in the 1950s to stop corrosion on the outside of the Atlas space rocket.  Amazingly, the chemists wrote the original formula in pencil on a notepad.  In order to maintain the secrecy of the formula, WD-40 mixes it "in house" and then sends the concentrate to its manufacturing operations.  From there, the manufacturers add some other ingredients and then put the product in the blue and yellow containers with the red cap. 

It takes quite a bit of work to maintain a trade secret.  Often, the secret or product is no longer useful or wanted by consumers.  It is amazing that the WD-40 recipe is still both a secret and in demand.  In fact, WD-40 keeps growing steadily.  Its growth is especially apparent in foreign markets.  Sometimes when you have "that" one product that you believe will be in demand for decades, it makes more sense to try and protect it as a trade secret rather than try to patent it.  It takes work and constant vigilance, but if successful, you can have protection for a very long time.  Whereas, with a patent, you get protection for a relatively short period of time. 

It is a good idea to conduct an annual review of your company's trade secrets in order to make sure that they keep their trade secret status. 

Tuesday, August 11, 2015

Handshake Deals Not Recommended

If I had a dollar for every time a client or potential client came to me and said that they did not need a written agreement for a business deal they were entering into with a friend . . .

It is all too common for friends who decide to go into business together to rely on that friendship rather than a good ol' fashion agreement.  I often see the results of when the business relationship and the friendship sours.  It turns into an ugly divorce! 

A recent news article reminded me of how these relationships based on handshakes, oral agreements, and napkin scribblings often turn into a legal quagmire for those involved.  The creation of Facebook was a fairly high profile example of how things can go so wrong without an agreement in writing.  Now, Snapchat, Inc. is suffering the same malady.

The "founders" of Snapchat, Inc. conceived of their idea for what they hoped to be the next technology start up to make it big.  They agreed to be partners via handshake in their undergraduate dorm room (at that school that shall not be named).  The Snapchat "partners" later became embroiled in a bitter dispute when one founder ousted the other just as the company was going big.  The "partners" settled their dispute sometime last year.

Now, the founders of the message board application Yik Yak, are squabbling.  The common theme throughout these disputes are that the founders are either friends or family.  Each side believes that the friendship or the family relationship is a strong substitute for a binding business contract.  Unfortunately, that is a recipe for disaster especially when an event involving money occurs.  More often than not, the event is a huge influx of cash (purchase by a larger company) and each of the partners wants to get their fair share. 

Unfortunately, my clients get me involved when things go bad rather than at the beginning.  Having clearly defined roles and goals at the beginning will save headaches at the end.  It is important to memorialize your business relationship even if you are friends or family.

Thursday, August 6, 2015

Copyright Infringement and Twitter

Surprisingly, it took this long for a copyright holder to sue Twitter for copyright infringement, but a photographer recently did so.  The lawsuit alleges that someone shared a copyrighted photo owned by the photographer on Twitter.  The account that shared the photo is no longer active.  According to the complaint, the photographer issued a takedown notice pursuant to the Digital Millennium Copyright Act ("DMCA") to Twitter.  Allegedly, Twitter ignored the takedown notice prompting the photographer to file her lawsuit in California. 

The question in the case is whether Twitter is liable for copyright infringement when one of its users shares a protected photograph even though the account is no longer active.  Despite the account being inactive, the photograph remains on Twitter.  The most likely avenue for asserting liability against Twitter would be if Twitter failed to act on the DMCA takedown notice.  As long as an internet service provider (Twitter, in this case) complies with the DMCA in handling takedown notices, the internet service provider is not liable for copyright infringement. 

This will be a case to keep an eye on as it progresses. 

Tuesday, May 26, 2015

Tethered to Your Work Smartphone? That May Mean Overtime Pay

When I was a younger attorney, I worked for a firm where the first name on the letterhead had strange work hours.  He would stay at home in the morning with his kids and generally arrive at the office around 11.  Often, he would exasperatedly wonder where everyone was during the noon hour.  He was also the one who would work later into the evening.  Needless to say, he expected his employees to be available day and night.  I recall him telephoning one of his partners as she was on her way to the hospital (she was in labor) asking her about a particular case!

There were several instances where this partner would expect responses to his inquiries late at night or early in the morning.  While attorneys are usually exempt employees, there is now a question about whether answering e-mails, phone calls, texts, etc. after work hours could lead to a claim for overtime. 

With the rise of company-issued smartphones and the expectations that one is always within reach of that smartphone, employees are working at all hours by answering those after hours e-mails, calls, or texts from the boss or the client.  This has given rise to a slew of lawsuits regarding overtime pay.  These lawsuits are fairly new and have not set any precedents regarding the line between answering one e-mail and "overtime." 

Adding to this wave of lawsuits is the expected updated rules from the Labor Department raising the salary floor.  By raising the salary floor, there will be significantly more employees eligible for overtime pay pursuant to the Fair Labor Standards Act. 

If you are an employer, what do you do? First, be sure to implement (and stick to) a policy regarding expectations for use of smartphones or other devices during non-work hours.  The policy should include reporting of time worked outside of the normal work hours for that employee.  Second, make sure to pay the appropriate overtime pay for work performed remotely above and beyond the normal work hours.  Third, if you have an expectation that employees work around the clock (e.g. requiring them to provide customers with their mobile number or e-mails in order to ask you questions), then you may want to adjust the work schedule of that employee to include a set amount of time (one hour?) as part of the work day. Fourth, you may want to consider capping the amount of time spent working remotely during off hours.  Finally, you may want to implement a "no working on the smartphone after hours" policy. 

Keep in mind, if the time spent by the employee working remotely is not significant (e.g. answering one or two e-mails every so often), it is unlikely that will qualify for overtime pay. It may be wise to get an idea from the non-exempt employees who work via their smartphones (especially company-issued devices) how much time they spend using those devices for work-related matters when not "on the clock."  That way, you can fashion an appropriate policy to handle such matters.  Generally, it is wiser to take care of these types of matters on the front end because any successful lawsuit for overtime pay includes liability for the plaintiff's attorneys fees, as well as penalties.    

Monday, April 6, 2015

Left Shark Update

Update:  Having taken the uber aggressive course, Greenberg Traurig had to back off when the attorney realized that he may not be able to bully Mr. Sosa so easily.  Here's the letter. And the response to that letter.

Friday, February 13, 2015

Another One for the Big Firms Are Not Always the Smartest Option . . .

I have met my share of potential clients who look at me as a "lowly solo" and express that they would prefer to have that big name, big international firm represent their interests.  I always tell these potential clients to be careful what they wish for because big firms are not always the best option.  Katy Perry's "Left Shark" of Super Bowl infamy proves my point.

As some of you may or may not know, during the Super Bowl half time show, Katy Perry performed her song "California Gurls."  Her stage for this song had a beach theme and two dancing sharks on each side of her.  Needless to say, the shark on her left appeared to have either been asleep or completely absent during rehearsals.  So he (or she) made up his (her) own moves without regard to the apparent choreography.  This, in turn, provided much internet and social media fodder.  In fact, "Left Shark" became a pretty popular meme subject.

Well, to the point about big firms--that usually have several layers of staff and attorneys working on your matter at gargantuan hourly rates . . . One of Katy Perry's attorneys at Greenberg Traurig sent a gentleman in Florida, Mr. Sosa, a cease and desist letter claiming that the shark images and costumes were protected by copyright(s).  You can view the letter and the response to the letter here.

You see, Mr. Sosa began offering 3-D printed "Left Shark" figurines for a mere $25.00 a piece.   Initially, Mr. Sosa decided to stop printing the figurines and avoid the legal hassle.  However, he had a change of heart and received help from a law professor who specializes in copyright law.  Professor Sprigman responded to Greenberg Traurig's letter by pointing out the ridiculousness of claiming a shark costume as a copyright.  He also pointed out that, even if copyrightable, Ms. Perry in an interview before the show indicated that she may not have created the shark costume, and therefore, did not own the copyright.  Interestingly, the cease and desist letter does not include a registration for the shark costume copyright which means that Ms. Perry could not sue Mr. Sosa until she obtained one.  Of course, even if she tried to get a registration, it is not likely the Copyright Office would issue it for a costume. 

As I have advocated on this blog before, it is important to defend and protect your intellectual property, but you should probably actually own it before you allow big law firm to hastily fire off a cease and desist letter.