Tuesday, June 12, 2012

Regular Joes Are Making an Impact on Patent Litigation and Advertising

Two articles I read recently discussed how companies are saving costs by enlisting people "off the streets" to assist them.  The first article discussed how Silicon Valley companies who face exorbitant costs of patent litigation seek the help from the masses to conduct prior art searches. 

This is how it works:  a company called Article One Partners LLC allows a company like Apple, Microsoft, etc. post a description of the technology for which they are being sued and allowing them to post awards for those who find the prior art.  The award is larger the better the prior art.  Article One then hires students, techies, and others on a part-time basis to search for the elusive prior art.  These people submit photographs, literary references, foreign patents, and other obscure documents which they hope is enough to convince the technology company that it can invalidate the patent being enforced against it. 

I was involved in a patent case which cost hundreds of thousands of dollars for the patent validity search alone.  I recall the attorney who conducted the search (a very thorough guy) filled a room full of bankers boxes worth of items which could or could not be prior art.  Article One Partners puts the search in the hands of amateurs who do not charge the hourly rates of the attorneys.  The company's attorneys undoubtedly review the submitted prior art, but utilizing the services of Article One Partners can save a technology company a boatload in attorneys' fees and costs.  While Article One Partners services big companies, it could be an invaluable tool for a small startup company facing a patent lawsuit from a huge conglomerate. 

The second article discussed a company called Poptent, Inc. which appears to have gathered inspiration from the Doritos Crash the Super Bowl Contest from a few years back.  In case you forgot, Doritos held a contest asking amateurs to create and submit a commercial with the best one(s) being shown during the Super Bowl.  The winning commercial cost the group of filmmakers who created it $ 12.  The cost of using Poptent's stable of students, hobbyists, and film school graduates to create a television commercial costs a company about ten percent of the cost of using a traditional advertising firm.  That is a huge savings. 

The lesson learned from these articles is that a company should think about utilizing other resources rather than the "traditional" ones which may be outside of that company's budget.  In my practice, I am always trying to work with my clients to achieve a quality product that fits within their budget. 

Friday, June 8, 2012

Ford Mortgaged Its Logo and Got It Back

In 2006, Ford sought to borrow money to restructure and streamline its operations.  In order to do so, Ford secured the loan with most of its assets, including its trademarks.  This move by Ford let it survive the downturn in 2008 and 2009 without filing for bankruptcy or seeking a federal bailout.

In order for Ford to get its trademarks back, it needed two companies to upgrade its credit.  Fitch Ratings upgraded Ford's credit rating in April.  Moody's Investors upgraded Ford's credit rating at the end of last month.  Apparently, these two companies were impressed enough with Ford's efforts and turnaround to make it possible for Ford to regain its assets.

As we become more brand driven, it is no wonder that Ford's trademarks were collateral for a hefty loan which ultimately saved the company from the economic disaster that was 2008-2009.  Even a small company may think about using its intellectual property for collateral in order to get funds to help it grow.

In fact, I represented some Angel Investors once who sought the patent of the company in which they invested when they discovered that the company had not been entirely forthcoming with information during the investor meetings (pitches).  They all specifically stated that they invested their money based on the technology of the patent.  Of course, this was pretty much the only asset of the company, but it is just more proof that a company should really think about leveraging its intellectual property to its advantage.

Tuesday, June 5, 2012

Served Via Facebook

I just came across an older article that discussed Flo Rida being served with a lawsuit by way of a post on his Facebook wall.  Normally, when a plaintiff cannot find a defendant, s/he can seek an order from the court to serve that person by publication.  I am sure you have seen the publications in your local newspaper--assuming you still read an actual newspaper (ahh, there is nothing like the black ink left on your fingers from actually turning pages rather than flicking a screen). 

Now, in this case, an Australian judge allowed the plaintiff to serve Flo Rida by Facebook.  Apparently, this is not an uncommon occurrence in Australia.  I am unaware of service by Facebook in the United States, but who knows, maybe it is on its way.  So, the next time you check your Facebook account, be careful because you just may get served. 

Saturday, June 2, 2012

Nike Unloads Two Brands

Recently, Nike announced that it would be selling its Cole Haan and Umbro brands. Nike claims the move is to allow it to concentrate on its namesake and other related brands.  This is just another example of a company realizing that more brands is not necessarily "more better."  See the recent dropping of brands by the American automakers. 

This makes sense for Nike given that its Nike and Jordan brands serve Nike's core consumers.  Higher end dress shoes and accessories (Cole Haan) and soccer equipment and apparel (Umbro) do not complement those brands with Nike's consumers as well as Converse and Hurley which are two other brands that Nike will be trying to grow. 

Indeed, if the recent design for the U.S. soccer national teams is any indication, Nike should probably just get out of the soccer arena altogether.  I do not understand how a company who can design decent looking jerseys for the likes of Arsenal, Barcelona, Juventus, Portugal, and Brasil cannot seem to create a good looking jersey for the United States.  Ah, but I digress . . .

Nike's decision underscores the need to understand the strengths and weaknesses of your trademarks and how they fit within the strengths and weaknesses of your business.  It is always a good idea to review your company's intellectual property to determine if changes need to be made.  In addition, a periodic intellectual property review can also find underused or under protected intellectual property.  This, in turn, could lead to a revision (strengthening) of your company's intellectual property protection plan.  An intellectual property attorney can assist you in conducting such a review.