Getting Ready for Cosmoprof Bologna

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Beauty product manufacturers are busy readying their booths for the start of Cosmoprof Bologna.  Here, American International Industries puts the finishing touches on displays of some of its many popular product lines.  In all, more than 2,400 exhibitors will participate in this 48th annual Cosmoprof Bologna event.

Conkle, Kremer & Engel attorneys Mark Kremer and Kim Sim will be at the California Pavilion to help clients take full advantage of the unique opportunities to establish and build overseas markets and build strategic alliances. Email them to arrange a meeting at the California Pavilion, or just stop by – they’re at Hall 30, Stand No. E28-F31 & E31-D34.

 

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The Conkle Firm is Appearing at Cosmoprof Bologna

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Conkle, Kremer & Engel attorneys Mark Kremer and Kim Sim are now attending Cosmopack and Cosmoprof Bologna, in conjunction with the California Pavilion, from March 19-23, 2015.  Mark and Kim are there to help clients expand their businesses internationally.  They will consult with clients about their concerns, including trademark registration and brand protection, manufacturer-distributor relations, regulatory compliance and more.  Mark and Kim would be glad to meet with prospective clients who are interested in developing their worldwide reach.  Visit their linked pages and contact them by email to arrange a meeting at the CK&E lounge, located at the California Pavilion, or for a bite at one of Bologna’s incredible restaurants.

 

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Beware of Scam Trademark Solicitations

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Trademark applicants and registrants take notice:  There are increasing numbers of domestic and international outfits that issue trademark compliance and renewal notices that look like legitimate invoices or governmental requests.  In actuality, these notices are sent by private individuals or entities trying to make a quick buck.  Some of these notices are solicitations from companies offering to file renewals with the United States Patent & Trademark Office (USPTO) for an exorbitant fee.  Using deceptively official-sounding names such as “United States Trademark Registration Office”, “Trademark and Patent Office” and “Patent & Trademark Agency”, these companies charge excessive fees for routine or unnecessary services or worse, take your money and disappear.  Others, such as IP Data in the Czech Republic, seek to charge a “filing fee” of over $2,400 to publish your trademark in their own private Internet database – an expensive exercise that is not an application for trademark registration and confers no trademark rights.

This problem has become so widespread and severe that the World Intellectual Property Organization (WIPO) published a list of known international trademark registration scams.   The USPTO keeps a similar scammer database, identifying the following organizations that sent non-USPTO solicitations, prompting consumer complaints to the USPTO:

  • TM-DB Register of Protected Trademarks
  • Trademark and Patent Office
  • Trademark Compliance Center (See an example of a scam solicitation sent by TCC)
  • Trademark Registration and Monitoring Office
  • United States Trademark Registration Office
  • Patent & Trademark Agency
  • United States Trademark Maintenance Service
  • U.S. Trademark Compliance Service
  • WDTP
  • WIPT
  • TM Collection
  • TM Edition
  • Patent Trademark Register
  • Register of International Patents and Trademarks
  • Trademark Renewal Service
  • Trademark Safeguard – Trademark Monitoring Service
  • Intellectual Property Agency Ltd.
  • IOPR – Intellectual Property Register
  • GBO, Inc.
  • Intellectual Property Services USA Incorporated
  • USTM Information Services
  • Brand Registration Office

In October 2014, a New York firm successfully won a lawsuit against “Patent & Trademark Agency LLC” for unfair competition and deceptive marketing practices, putting the company out of business.  A Final Consent Judgment was entered against Patent & Trademark Agency LLC, by which it agreed to permanently discontinue marketing and selling trademark registration or renewal services in the United States.

If you receive any unexpected email or correspondence regarding a trademark registration, you should immediately contact the USPTO or your counsel to verify the veracity of the sender and the correspondence.  Conkle, Kremer & Engel assists individuals and companies in all aspects of intellectual property protection, including the filing and maintenance of trademark registrations – and we know how to discriminate legitimate vendors from scammers.

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The Conkle Firm Will Attend Cosmoprof Asia November 12-14, 2014

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Conkle, Kremer & Engel attorneys John Conkle and Kim Sim will attend the Cosmoprof event for the Asia Pacific region in Hong Kong on Nov. 12-14, 2014.  Cosmoprof Asia will feature more than 2,350 exhibitors in the beauty industry, and expects more than 64,000 visitors from all over the world.  There will be 22 national and group pavilions.  Given the prominence of California’s personal care product industry, CK&E is proud to attend the Hong Kong event in association with the California Pavilion organized by the California Trade Alliance.  CK&E will meet with clients and correspondent counsel to facilitate business between manufacturers, distributors and vendors in the Asia Pacific region and the United States, with particular emphasis on California businesses.  Brand protection and distributor relations are always a major concern when doing business between the U.S. and Asia, and CK&E attorneys are there to help.  If you will be attending Cosmoprof Asia this year, please let us know and we will try to make arrangements for a meeting at the event.

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The Conkle Firm Will Sponsor and Moderate Panel at Counterfeiting & Brand Protection Summit in New York

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John Conkle of the Conkle, Kremer & Engel will moderate a panel presentation at the 13th Anti-Counterfeiting & Brand Protection Summit, on October 1, 2014 in New York City.  The title of the presentation will be Combining Forces:  Coordination of Public and Private Sectors against Pirates and Counterfeiters.  The panel will consist of preeminent experts on effective enforcement of civil and criminal anti-counterfeiting laws:  Marc Misthal (Gottlieb, Rackman & Reisman LLP), James T. Hayes Jr. (Special Agent in Charge, ICE Homeland Security Investigations, New York Field Office), and Jodie Kane (Chief of Rackets Bureau of the New York County District Attorney’s Office).

Confronting product counterfeiters can be an expensive, labor intensive and sometimes frustrating task, particularly when undertaken as a solo effort.  The panel sponsored and moderated by CK&E will highlight strategies for combining the strength of private enforcement and available public sector resources to combat counterfeiters using all available tools.  The panel will assess when and how to use civil resources in partnership with criminal enforcement for the most effective and cost-effective assault on product counterfeiters.  The panel will address practical steps to best leverage the strengths and resources of both arms against the scourge of counterfeiters, illustrating points with real world experiences.

Join us and learn how to get the most bang for your brand protection buck in the battle to defeat counterfeiters.  CK&E is proud to again sponsor this important brand protection event.

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The Conkle Firm Will Attend INTA’s Innovation and Internet Governance Conference

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On September 18-19, 2014, Conkle, Kremer & Engel lawyer Zachary Page will attend the International Trademark Association’s “Internet, Innovation and ICAAN: The Evolving Landscape of the Net” conference in San Francisco. This INTA program will cover issues related to the interplay between trademark owners and new developments in the management of the Internet, including new generic top-level domains (gTLDs), changes to the WHOIS domain name directory system, management of intellectual property rights in social media, and other shifts that impact the way owners’ protect their trademarks online.

The conference features speakers from leading companies in the technology industry, including Google, Facebook and Twitter, as well as representatives from federal and global regulatory organizations, such as the World Intellectual Property Organization (WIPO), U.S. Department of Commerce and the Internet Corporation for Assigned Names and Numbers (ICANN).

Every business is affected by developments regarding the Internet.  CK&E participates in important industry conferences of INTA and others to stay in the forefront of developing issues affecting the firm’s clients.  Check back for blog post updates from the conference to stay abreast of innovations and changes in governance and brand protection on the Internet.

 

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Timed Out vs Youabian: The Conkle Firm Establishes that the Right of Publicity is an Assignable Property Right

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It is virtually impossible to get through a day without seeing the “right of publicity” in action.  Everywhere, there are advertisements featuring photographs of professional models and celebrities of every variety published to sell all types of products and services.  It is strange, then, that no statute or case precedent in California specifically established that models and celebrities have the ability to assign or license those publicity rights for proper use and for enforcement if their likenesses are misused.  Until now.

On September 12, 2014, the California Court of Appeal agreed with the arguments of Eric Engel of the Conkle Firm (working with co-counsel at Hall & Lim), and established the first published precedent in California that explicitly holds that the right of publicity is assignable.  In Timed Out, LLC v. Youabian, Inc., Case No. B242820, the Second District Court of Appeal finally settled a long-simmering dispute that had confused many lower courts:  Whether the right of publicity is a “personal right” that can only be exercised during lifetime by the individual owner, or whether the right of publicity is a form of intellectual property that can be freely assigned and licensed to others for use and enforcement.

The dispute had its origin many years ago, when an influential tort law treatise by famed Professor Prosser observed that the right of publicity historically derived from the “right of privacy.”  The classic form of the “right of privacy” is protection against hurt feelings and injury to personal reputation that can occur when personal information about a private individual is published without her consent.  That type of injury is considered personal in nature and cannot generally be assigned.  But, as the Timed Out decision observed, the right of publicity has evolved away from its origin into a distinctly commercial and non-personal interest.

The right of publicity is now virtually the opposite of the original right of privacy:  The right of publicity is the ability of a person to control the commercial value of the use of her image and information.  Timed Out recognizes that a person’s likeness, voice, signature or other identifying characteristics can have substantial commercial value, regardless of whether the person is a celebrity and regardless of whether the commercial value of the identified person’s “persona” is created by happenstance or by investment of great time and effort.  Timed Out finally establishes that the value created is a form of property, freely assignable by the person who owns it.

The Court of Appeal also resolved a separate important issue that is frequently in dispute in right of publicity actions:  Whether federal copyright law subsumes and preempts right of publicity claims.  Timed Out v. Youabian established that the right of publicity is distinct from copyright interests in a photograph or image, and that right of publicity claims generally are not preempted by federal copyright laws.

The effect of Timed Out LLC v. Youabian, Inc. for models, celebrities, manufacturers, advertisers and resellers is to finally establish that the right of publicity can be licensed and assigned to third parties, and enforced by third parties such as Timed Out, and that such rights are independent of federal copyright interests.  That means models and celebrities no longer have to make the difficult decision whether it is worth their time, expense and effort to pursue claims when their publicity rights are violated – they can assign the affected publicity rights to agencies such as Timed Out to pursue the claims.  Manufacturers, advertisers and resellers will no longer waste effort and time attempting to determine whether the publicity rights were assignable.  They can and should instead focus on establishing whether they had the necessary rights to use the image, photograph, likeness, voice or other identifying characteristic of the “persona” of the model or celebrity.  This puts a premium on making sure that any “model releases” obtained prior to advertising are well-written and appropriate for each particular use of the model or celebrity’s photograph, image, likeness or other identifying features.

Conkle, Kremer & Engel counsels and helps clients avoid these kinds of issues with effective model releases, licenses and assignments.  Timed Out v. Youabian demonstrates that CK&E is also at the forefront of enforcing the right of publicity when model and celebrity rights are violated.

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Manuel Noriega and Lindsay Lohan have No Doubt about their Right of Publicity

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What do Manuel Noriega, Lindsay Lohan and the rock group No Doubt have in common? All of them have sued videogame makers for infringement of their rights of publicity. On July 15, 2014, Manuel Noriega sued videogame maker Activision Blizzard in Los Angeles Superior Court when his name and animated likeness were included in the videogame Call of Duty: Black Ops II. Less than two weeks earlier, Lindsay Lohan filed a Complaint alleging that her likeness was used, under a pseudonym of “Lacey Jonas,” in the Rockstar Games videogame Grand Theft Auto V. No Doubt alleged that Activision exceeded the consent it gave for use of band members’ likenesses as avatars in the videogame Band Hero.

These claims seem to be emblematic of a recent upswing in claims of violations of the “right of publicity”.  One prominent example is Davis v. Electronic Arts, a case on behalf of some 6,000 retired pro football players who are suing Electronic Arts over use of their identities in the Madden NFL video game series.  In arguments pending in the Ninth Circuit Court of Appeal, Electronic Arts claims First Amendment protection for claimed “transformative use” of the players’ images.  Even if that argument were successful, it will not likely be of much help to others who simply use a photograph or other unadorned likeness of an individual.

California and most other states recognize that a person has a right to protect his or her name, likeness, signature, voice and other identifying aspects of personae from commercial exploitation without consent. The right of publicity protects not just photographs but all forms of likenesses, including animated versions of people in videogames. The right of publicity is a type of intellectual property – in some ways analogous to (but not the same as) a trademark. An important point to understand is that the right of publicity is not ordinarily precluded simply by ownership or license of the copyright in the image – even if you took a photo of Lindsay Lohan yourself and you own the copyright in that photograph, that in itself generally does not mean you can use it in an advertisement to sell a product without Lindsay Lohan’s consent.

The right of publicity is distinct from rights protecting against slander or defamation – there is no requirement that a person’s reputation has been harmed in any way, or that he or she ever had a positive reputation. Manuel Noriega is probably best known as a former leader of Panama who was deposed, tried and convicted of drug trafficking, racketeering and money laundering. Nonetheless, Manuel Noriega has the same right to prevent others from commercially exploiting his name and likeness as anyone.

An important and often overlooked aspect of the right of publicity is that it is a right held by everyone – not just celebrities. While celebrities presumably may command more money for the commercial use of their identities, everyone has the same right to protect his or her name from commercial exploitation without consent, regardless of previous anonymity.

This is a particularly important lesson for businesses that might be inclined to scour the Internet, copy a photograph of some unknown model and use it in advertising or packaging. In addition to the risk that unauthorized copying and use might violate a copyright in the photo, such unauthorized use for commercial promotion runs a strong risk of violating the model’s right of publicity and giving rise to a claim for damages. Even a business that has ordered a photo of a professional model specifically for use in advertising or packaging would do well to check whether the model signed a release that covers the particular use, because model releases can differ in scope, duration and effect.

Conkle, Kremer & Engel has been involved on both sides of the right of publicity – defending actions by models against companies who thought they had sufficient releases of the models’ rights of publicity, and asserting models’ rights to be compensated for the commercial value of their likenesses. CK&E attorneys stay current on the developing law of the right of publicity, which is a quickly expanding area of law affecting everyone from manufacturers and marketers to models, celebrities and ordinary people.

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You Shook Hands – But Do You Have a Deal?

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Courts have held that, in business negotiations, “Handshakes are significant. When people shake hands, it means something.”  Unfortunately, they have also held that when people shake hands, “several meanings are possible.”

In Rennick v. O.P.T.I.O.N. Care, the Ninth Circuit Court of Appeal considered a party’s contention that a deal was struck when, after months of discussion and a 4-hour negotiating session, the parties “got up and circulated around the room and shook hands with each other on having made the deal.”  The Rennick case observed that a jury could reasonably find that “the handshake was confirmation of a contract, or that it was an expression of friendship and the absence of ill will after a day of hard bargaining.”  So, given the uncertainty of its meaning, should we stop shaking hands when discussing business?  Of course not.  Indeed, the Court noted that, “By custom, it is a rude insult to reject an outstretched hand in most circumstances, and to do so at the end of a long business meeting would likely prevent a future deal.”

The issue of the parties’ intent upon shaking hands is not a small one.  In August 2014, Charles Wang, the owner of the New York Islanders was sued by a hedge fund manager who claimed that the parties had shaken hands on a deal to buy the NHA hockey team for $420 million, and that Wang had breached their agreement by demanding more money.  The frustrated purchaser sued to either enforce an apparently unsigned 70-page agreement to conclude the sale of the team, or recover a $10 million break up fee that he claims was among the terms agreed upon with a handshake.

Courts struggle with this kind of issue, with or without handshakes.  In contract disputes, courts try to enforce the parties’ expressed intentions. For example, where the parties clearly express that they do not intend to be bound until they sign a formal written contract, courts will try to honor that intention by finding that no contract exists unless a written agreement was fully signed.  Indeed, negotiating parties usually can express almost any manner of requirement before an agreement becomes enforceable.  Quentin Tarantino’s civil war era film Django Unchained featured a climactic scene in which the odious character Calvin Candie extorted Dr. King Schultz into signing an outrageous contract, and then insisted that the signed contract was meaningless unless Dr. Schultz also shook his hand.  As a general point of law that was a doubtful proposition even in Mississippi in 1858, but if the parties had been careful to express that intention in their written agreement it probably would have been an enforceable prerequisite to the validity of the contract.

In reality, too often there is no such clear delineation.  If the parties do not eliminate such possibilities by an express statement of their intentions, oral expressions or an exchange of emails or text messages might create an enforceable agreement.  That is because, when the parties aren’t careful about expressing their intentions, courts are left to divine whether the parties intended an agreement with or without signatures on paper.  Courts consider testimony about what was said and evidence of what was written and the activities that took place before, during and after the time of the purported agreement to draw conclusions about what the parties’ intentions really were. Often, the parties’ contemporaneous correspondence is the most important evidence of whether the parties intended to have a binding agreement immediately, or whether the parties intended only to express their good will or intention to negotiate further.

To avoid unnecessary disputes, a cautious businessperson should make a point to express clearly his or her intentions.  The best approach is to plan ahead and be as clear as possible in a written expression as to when the deal is considered enforceable.  The Conkle law firm counsels and represents businesses in negotiations to achieve those ends, or in disputes that can arise when the businesses handled negotiations themselves and come to Conkle, Kremer & Engel attorneys only after things did not turn out as intended.

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The Conkle Firm Attends IECSC and IBS Beauty Industry Shows in Las Vegas

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CK&E attorney Kim Sim recently attended the International Esthetics, Cosmetics and Spa Conference (IECSC) and International Beauty Show (IBS), two of the premier trade shows for manufacturers and distributors in the personal care products industry.  The trade shows were held June 12 through 14, 2014 at the Las Vegas Convention Center in Las Vegas.

IECSC Las Vegas is the country’s largest spa and wellness conference and expo, with more than 600 exhibitors, including manufacturers, distributors, spas and wellness centers, and thousands of professionals attending from the national and international spa and wellness market.  In addition, this year’s IBS Las Vegas, a beauty show focused primarily on salon-only and professional-grade products, featured more than 350 exhibitors.  Many of CK&E’s industry clients exhibited at both IECSC Las Vegas and IBS Las Vegas to widespread interest by show attendees.  Both IECSC Las Vegas and IBS Las Vegas offer a unique opportunity for CK&E to meet and interact with clients as well as other professionals in the beauty industry, and stay on the inside track about the industry’s latest developments and trends.  Kim was pleased to be able to catch up with BonBliss Beauty founders Elissa and Jay Choi.

CK&E’s next trade show attendance will be at Cosmoprof North America, one of the world’s top trade shows for the personal care products industry.

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