Stop imitators by combining design patents and trade dress
Design patents have gained popularity in recent years among inventors looking to protect their market share. But they shouldn’t forget trade dress–the distinctive physical appearance or packaging of a product–as a way to ward off copycats as well, says Morrison & Foerster partner Jennifer Lee Taylor. In fact, Taylor says, design patents and trade dress filings can work together to achieve permanent protection from look-alikes.
Unlike trade dress protection, a design patent can be sought immediately upon invention. But design patent protection only lasts for 14 years, while trade dress protection never expires. Continue Reading
Getting what you pay for—and then some
More companies looking to keep pace with the fast-changing mobile market are busily buying up app developers. Google spent almost $1 billion in June to acquire traffic app developer Waze. Apptopia is a growing online marketplace for the buying and selling of rights to apps.
But companies should know that if they acquire an app developer, they may inherit all sorts of consumer data collected by its apps. That can lead to scrutiny from regulators and the media over how that data is used, says D. Reed Freeman Jr., a Morrison & Foerster partner who focuses on privacy and data security. How this data should be used and protected is a new area of law, and there are few statutes to go by, he says. So companies need to follow enforcement decisions by regulators, primarily the FTC, to get a sense of where enforcement is heading. Continue Reading
Widely applicable rules regarding consumer privacy disclosures in our increasingly mobile world are only now emerging. Government agencies, individual states, and professional associations are all weighing in on how mobile app developers should disclose how they collect, store, use, and protect the wide range of highly personal data being collected every day.
The Application Privacy, Protection, and Security Act of 2013, better known as the APPS Act, is intended to bring conformity to the unwieldy world of mobile app development. With a divided Congress struggling to pass even mandatory legislation, though, passage of any type of discretionary legislation this year seems unlikely, says D. Reed Freeman Jr., a partner with Morrison & Foerster in Washington, D.C. In the meantime, Freeman says, developers should focus on the Federal Trade Commission, “because even without congressional action, it has broad jurisdiction, and it has already brought cases and issued guidance on mobile privacy and data security.” Continue Reading
The FCC’s revised rules for telemarketers and text marketers, taking effect in October, could signal a big shift in how companies direct market, posits Julie O’Neill, a Morrison & Foerster attorney specializing in privacy issues. One section prohibits the use of an autodialer to call or text cell phones for marketing purposes, unless the caller has the called party’s signed, written consent. “It’s almost impossible to tell which numbers on a call list are cell phones, so [almost] every list will have to be scrubbed,” she says.
The new consent obligations also require new disclosures. Because the new rules will apply retroactively, even companies with agreements in place must re-sign every customer if their agreements don’t meet the new rules’ disclosure and signature requirements. “Companies that want to continue marketing by phone or text message are working hard to come into compliance by the rules’ mid-October effective date,” she says. Continue Reading
On October 23, The Securities and Exchange Commission voted to propose rules under the JOBS Act to permit companies to offer and sell securities through crowdfunding. Crowdfunding describes an evolving method of raising capital that has been used outside of the securities arena to raise funds through the Internet for a variety of projects. Title III of the JOBS Act created an exemption under the securities laws so that this type of funding method can be easily used to offer and sell securities as well. The JOBS Act also established the foundation for a regulatory structure for this funding method.
While crowdfunding can be used to raise funds for many things, it generally has not been used as a means to offer and sell securities. That is because offering a share of the financial returns or profits from business activities could trigger the application of the federal securities laws, and an offer or sale of securities must be registered with the SEC unless an exemption is available. Continue Reading