What’s a generic term? Can we google it to find out?

By Debby Winters

This story of generics began because David Elliott and Chris Gillespie registered over 700 domain names that contained the word “google” plus the names of companies, products, people, places, etc. For example, they registered “googledisney.com,” “googlefit.com,” and “googlemexicocity.com.”  Their argument in Arizona federal court was that, because people use “google” as a verb meaning “to perform an internet search,” thus making the mark generic.  Google objected to this and won. That’s when Elliott And Gillespie countered by trying to get Google’s registrations for the GOOGLE trademark cancelled saying that it has become a generic term by filing papers asking the Supreme Court to consider whether the term “Google” has become generic.Google’s response was that even if people use the term generically as a verb, that doesn’t mean that it is generic for search engines.  The federal trademark law allows a registration to be cancelled when the mark “becomes the generic name for the goods or services . . . for which it is registered,” but as Google pointed out, its registrations cover “computer hardware; computer software for creating indexes of information, indexes of web sites and indexes of other information resources” and other, longer descriptions.  The point is that the registrations cover providing a search engine, not the act of searching the internet.  Because all of Elliott And Gillespie’s evidence went to the use of “google” as a verb rather than the use as the name of the goods and services Google’s mark is registered for, Google argued that the evidence didn’t prove anything about the real question in the case.  The district court in Arizona agreed and dismissed the case, and the Court of Appeals for the Ninth Circuit affirmed the dismissal.On Aug 14, 2017 Elliott And Gillespie prepared their last shot by filing a petition for writ of certiorari at the U.S. Supreme Court.  It will be a while before we know anything about whether the Court will even take the case.  The Court denies most petitions without even requesting a response from the other party.  But if the Court is at least somewhat interested, it will ask Google to file a response, and then determine whether to take the case.  Even if the Court decides to hear the case, that’s no guarantee that Elliott and Gillespie will win.  There’s a long way to go before we ditch the term “search engine” and officially start referring to the act of searching as “google.” If you want to keep up with what happens next in this case, continue to read this blog or just “google it!”


Is Imitation Always Plagiarism?

by Debby Winters

“I’ve been imitated so well I’ve heard people copy my mistakes.” ― Jimi Hendrix

So, what’s the big deal about plagiarism? Everyone does it. Right? Well, not everyone, but a lot of people do. A recent example is Sen. Rand Paul. When questioned about it, he said he was being held to an unfair standard. Wonder why he thinks the standard he is being held to is any different from the one every student, every politician, and everybody is held to? He went on to say that he was going to start putting footnotes on his speeches and anyone who requested a copy with the footnotes would be given one. Nice try, Sen. Paul

One of the problems with plagiarism is the subject of Jimi Hendrix’s quote, that if one person makes a mistake, that mistake is perpetuated by just copying the work of another. I recently had this happen in a class that I teach. One student did the work, with mistakes, and other students merely copied the answer, with the mistake-which made it more than obvious what had happened. Whether Sen. Paul has perpetuated the mistakes of others has not come to light but in one speech he used word-for-word Wikipedia entries. And while Wikipedia entries have references cited, since most of the content is voluntary, the accuracy of the information is not always checked so Sen. Paul may indeed end up perpetuating mistakes with his word-for-word Wikipedia speeches.

Additionally, Sen. Paul took the language for some written op-ed articles directly from articles written by another person. Not only is this a blatant example of plagiarism, but it is a blatant violation of copyright. Copyright infringement cases are filed every day. One huge copyright case that was just decided was against the search-engine giant, Google, Inc. This suit was brought challenging Google’s right to digitally copy millions of books for online searches using its Google Books. The courts decided that Google Books provides a public benefit and therefore fits into the fair use exception to copyright infringement. Maybe Sen. Paul needs to think about this as his next line of defense. I’m not sure how he would swing that but we all know the Sen. Paul is creative, well, as long as someone has already said it before him.

Resolutions for 2013

By: Debby Winters

We are almost a week into 2013 and most are making resolutions for the new year. Have you thought about anything you’d like to try to achieve for 2013? Here are my 8 suggestions for things that are related to items that I blog about.

1-     Read the TOS and check privacy settings

Terms of service (TOS) are long, boring documents filled with impenetrable legalese. But before you upload content or share personal information with a site, take a few minutes to read over its TOS — and any privacy agreements. This way you will have a better idea of who owns your data and what the company can do with it. Start with the biggies you’re probably already using such as Google, Facebook, Yahoo, Twitter and Instagram. Remember my recent post about the change in Instagram TOS? You may be saying to yourself that even if you read the TOS, they can change it at a later date. While that is true, it is good to know what you are agreeing to when you agree to it and not find out at a later date that you did something that you did not mean to.

Next, take a trip to your privacy settings. Even if you had your settings just the way you wanted them a year ago, the company could have updated the controls and left some of your information exposed. Check your privacy settings every few months to ensure they are the way you want them.

2-     Step away from the smartphone

If you spend most of the day with your nose buried a smartphone, tablet or computer, make an effort to break out of the digital world and interact more with the humans in 2013. Don’t habitually check your online social networks while hanging out with your flesh-and-blood friends and family. Attempt to live in the moment instead of just documenting the moment on Instagram. There’s a time and a place for texting and e-mailing and checking Twitter and Facebook, but this year, try to leave the screens in your pocket more often and engage with the world around you.

3-     Respond to the emails that matter

On a similar note, respond only to the emails that are important and do so in a timely fashion. Clean out your inbox by unsubscribing from pointless newsletters so you can focus on the important mail. It is sometimes hard to get newsletters to let you go, but it is worth a try. Email back your family and friends as quickly as possible.

4-     Lead a safer online and mobile life

Change passwords on your accounts and use different passwords for each one. Make sure you can remotely wipe your phone and iPad if ever lost. Be careful about information you share online, which includes being mindful of you Facebook privacy settings and location services usage. See #3. Also back up your data! This leads me to #5.

5-     Back your stuff up

Back up your files. Do it now, do it often, do not put it off until your hard drive suddenly and unexpectedly perishes or until your laptop is stolen from a cafe when you run to the bathroom.

Everyone will have different backup needs, but for the most basic computer backups there are a few basic options. You can use an external hard drive or a cloud service like Dropbox, Wuala, or Google Drive to save a copy of select files. A nice Dropbox feature is that it can automatically save new photos from connected cameras or smartphones to the cloud.

6-     Learn something new online

Quality classes are free and plentiful online. There are courses for every age, interest and attention span, from major universities and organizations. Don’t limit yourself to only local colleges as many top colleges offer free online classes. Coursera offers free college courses from big name universities including Princeton, Emory, Stanford, Johns Hopkins and Columbia. If you aren’t into signing up for a class, many offer one time webinars and many of these are free. Or just get inspired by the best of the Ted Talks or RadioLab podcasts.

7-     Be careful what you post to social media.

In the age of people posting their every move on social media, you should think twice before you post. There are legal cases where postings have been used against one party or the other and people have been liable for damages, criminal acts, and loss of child visitation privileges, just to mention a few. But beyond that, everyone should think before they post. This can be a potential problem in the workplace for both employers and employees if inappropriate behavior ends up on-line. Think about what impact it will have on the reputation of all. Additionally, even minor faux pas with your friends and family can occur when you don’t stop and realize that all of your “friends” see what you post, not just the ones you intend the post to be for. Just be careful what you post, as there is no magic eraser to undo internet postings one you hit the “enter” button.

8-     Network. And then follow-up.

Don’t just make efforts to make helpful connections, strive to keep in touch with them.  This could be the difference between getting yourself noticed. If you’re not using LinkedIn, join now. It is a valuable professional tool to stay connected. Make sure that if you use this professionally that your profile is professional and not personal.

If you resolve to do even half of these things you will have a happier, healthier and safer 2013 with less IP concerns…here’s to that! Now, let’s get started!!

Apple v. Samsung- Apple won the recent battle but who will win the WAR?

By Debby Winters

A California Court recently found Samsung, the Korean electronics giant, guilty of infringing Apple’s patents and ordered it to pay $1.05 billion in damages. If this huge damage award holds up on appeal, it will stand as the largest patent verdict of all time. But, more important than the amount of money awarded, it gives Apple a huge leg-up in the corporate patent wars, and it immeasurably strengthens the company’s negotiating position with regard to the Android phones it is struggling against.

Although, according to the jury verdict, Apple is the inventor of most of the technology in these smartphones, Samsung has been the number one seller of them in the U.S. in the past few years. This verdict will surely alter the balance of power.

Another twist in the story is that Samsung claims that Apple stole the technology from it and others, such as Motorola, and HTC, in the first place. Samsung claims that technology similar to Apple’s pinch-to-zoom function already existed when Apple was granted its patent, the company is arguing that Prior Art should render Apple’s patent invalid. Samsung has won verdicts against Apple in lawsuits it file against the mobile device giant in Japan. This verdict also follows closely after a South Korean court decided that both companies infringed each others’ patents, a ruling seen to favor Samsung. However, the US battle is the centerpiece of the worldwide legal battle between the two smartphone companies, and is by far the most significant.

It is a fact that Apple is known for suing other companies voraciously over “stolen” property, and currently has lawsuits going with just about every company that has entered the mobile device market. Want to make it even more complicated? Currently, the Android platform is under attack from a number of other companies in addition to Apple. These companies have been forced into licensing agreements due to alleged patent infringements. So, who really invented this technology? And what’s the big deal, anyway?

For starters, Apple’s ultimate target is not Samsung, but Google, because Google created the Android operating system (OS) that runs on Samsung smartphones. Steve Jobs thought Android was a rip-off of Apple products, and vowed to declare “thermonuclear war” on the competing OS. It will be interesting to see what the results of Jobs’ promised nuclear attack will be.

There’s a danger that Samsung products could be kicked off the market following this huge verdict. Apple has portrayed Samsung as an enthusiastic copycat that took a shortcut to profits, engaging in a three-month copying spree that piggybacked on the years of hard work it took Apple to create the iPhone. Samsung, meanwhile, denied those copying allegations, and accused Apple of being a courtroom bully that refused to compete in the marketplace. Negotiating a license agreement between th
e two companies from the beginning could have resolved all of these problems, and may be what it will take in the end, if the infringement verdict is upheld.

How the jury made its decision is another interesting facet in the complicated twist. Each member of the jury was given access to one of each of the accused phones, which could be turned on and used, but did not have Internet access. Based on their own usage, they found infringement of Apple’s patents that cover features like double-tapping to zoom, the “bounce back” technology that snaps images back into place, as well as the contours and shape of the iPhone. Traditionally, jurors are not allowed to bring “model’s” into the deliberation room but as we all know, times are changing!

What’s the Buzz about Google’s New Privacy Policy?

If you are a Gmail user you’ve seen Google’s new privacy policy…but what’s all the Buzz about? Remember the Google Buzz social networking service? Oh, you don’t? Well, that’s because it didn’t last very long and while it was around, there were charges that it violated privacy laws by exposing Gmail users’ personal information. The resulting settlement put Google on notice that it had to build privacy protection into its products and it could not misrepresent how it handles users’ information. So, last month, Google began alerting users that beginning March 1 it will share data it collects from users across its dozens of services. Google says that only users who are logged into Google will be affected. Google already shared what it knew about its users across most of its services but now it will also include YouTube and Google search history. Google says its new privacy policy does not violate the settlement it reached with the FTC.

However, a consumer watchdog has escalated its efforts to block Google from rolling out the new privacy policy that would allow the Internet search giant to harvest more information about its users. But the Electronic Privacy Information Center (EPIC) is not suing Google. Instead, it filed a federal lawsuit Wednesday against the Federal Trade Commission, the agency charged with protecting consumers’ privacy on the Web. The watchdog group is asking a federal judge to issue a temporary restraining order and preliminary injunction to compel federal regulators to enforce a settlement they reached with Google last year and protect consumers who will be “left without recourse if the commission fails to enforce its order.”

Google says its new privacy policy will improve Google services and make Google’s privacy policies easier for consumers to understand. A Google spokesman said it does not share users’ personal information outside of Google, just with its own services such as Gmail and Google Maps.

The consumer group charges that Google is hoping to boost its online advertising business, which generated nearly $40 billion in revenue last year. Google will now be able to target ads to people based on the videos they watch on YouTube or their previous Google searches. With rising competition from Facebook, which is on the verge of an initial public offering (IPO) that could bring $10 billion and a valuation that tops $100 billion, Google is looking to increase revenue from ads more closely tailored to its users. Facebook took the lead in U.S. online display ads from Yahoo last year with a 16.3% share of the market, according to research firm EMarketer. Google, the dominant search engine, came in third with 9.3% of the market.

Debby Winters