Watson LLP - March 2020

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March 2020

IP Litigation & Government Investigations • Videogames & eSports Cyrptocurrency & Virtual Currency • Data Privacy & Breach Response • Intellectual Property Licensing • Patent Prosecution • Trademark Prosecution • Copyright Registration

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HAS YOUR TRADEMARK BEEN INFRINGED UPON? T rademarks can really boost your business, as they establish your brand and company as an authority in your industry. However, if your trademarks aren’t discernible from other companies’ trademarks, it can dilute the impact of your brand, resulting in fewer sales and possible trademark infringement lawsuits. By better understanding how trademark infringement works and when it’s happening to you, you’ll be able to boost your sales and place your business at the top of the list. According to the United States Patent and Trademark Office, trademark infringement is “the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.”

color, you will need to list a specific color code in your trademark filing because if you don’t, you’re essentially telling the trademark offices the color of the trademark doesn’t matter, and that will weaken your case. Similarity of Services or Products Provided

But the overarching test that all courts in the United States use to determine trademark infringement is the “likelihood of confusion” test. This test is a list of 8 to 13 factors that can help determine whether or not a trademark is infringing upon another. Not every factor is listed here, but the five we feel are the most important are explained in more detail below. Strength of the Mark Knowing the difference between strong and weak trademarks is the first step in building a case. A strong mark is one that is distinctive or suggestive (suggesting, not describing, a connection to your goods or services). By contrast, a weak mark is generic or descriptive, such as using the phrase “world’s best” to describe your product. A great example of a strong mark would be Apple’s famous apple logo. They sell computers, not apples, but because the company is so well branded and popular, almost anyone in the world can identify an Apple product just from the logo alone. This single trademarked item has boosted Apple’s sales and made it a recognizable company in the growing tech industry. Similarity of the Marks

If two companies provide a completely dissimilar service or product, an infringement case may not stand. An example of this is Lexus, the car company, and Lexis, the database company. Though their trademarked names sound similar, they provide completely different products and services, and there is almost no room for confusion for an average consumer. An example of trademarks attached to similar products was in 2006, when a court opposed Audio BSS USA’s trademark registration because it was too close in appearance to Boss Audio Systems’ trademark. Because both companies provide audio-related products, it was ruled that an average consumer would be confused and purchase the wrong product. Defendant’s Intent According to the Restatement of Trademarks, it’s appropriate to consider the defendant’s intent. Typically, if a company is intending to cause confusion between two brands, they will be successful in doing so. Unless there is a clear record of the defendant ignoring requests to change their logo, it’s typically harder to build a case around this factor. Actual Confusion

As a general rule, all features of both marks will be compared during a case. These features include but are not limited to sound, color, and typeface, depending on the trademark itself. If you have a

A case for actual confusion is where it looks and feels like infringement, but there isn’t any tangible evidence. In many cases, proof of actual confusion is nonessential

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Y our brand is the heart and face of your company. This includes your logo, brand jingle, and any information you publish that requires a subscription to access. Under the Digital Millennium Copyright Act and the Copyright Law of the United States, these should be protected to preserve your company’s identity in the marketplace. Unfortunately, this isn’t always the case. For instance, let’s look at streaming services. Imagine if every streaming service used the same logo, font, and coloring. How many people do you think would still find Netflix? Worse yet, just consider how much revenue Netflix loses every month due to password sharing. The research firm Magid estimates that Netflix loses over $130 million each month due to less than 10% of their consumers sharing their passwords. And Protect Your Subscription Value UNSUBSCRIBE FROM

It takes some serious basketball knowledge — and a lot of luck — to successfully predict the outcome of March Madness. Whether you’re an average hoops fan or an expert, it’s more difficult than you might think. The Smithsonian estimates the odds of a perfect bracket are 1 in 9.2 quadrillion. But gone are the days of relying on the most intimidating mascot to make your decisions. Try to beat those odds with these March Madness technologies. Adobe’s Hack the Bracket What if there was a tool that could compare

free-throw percentages or shot accuracy between opponents? Well, now there is! For the past two years, Adobe has offered its data analytics software with a simple-to-use system, Hack the Bracket. The program breaks down points, mistakes, fouls, win percentages, and other statistics into side-by-side comparisons. The software also calculates the percentage of a team winning or losing, giving users a closer look at the game. Google Cloud’s Student-Led Analytics It’s one thing to know the numbers; it’s a whole other ball game to understand what they mean. That’s where Google Cloud’s analytics team comes in to help. In 2018, Google partnered with the NCAA to offer live gameplay analysis, and in 2019, the tech giant hired more than 30 college students to contextualize the numbers throughout the tournament. Google’s steps for 2020 remain a mystery, but you can view past records and data at Cloud.WithGoogle.com/marchmadness. The NCAA’s Original Bracket Challenge In 1939, Oregon University became the first team to win March Madness, defeating Ohio State University 46-33 in an eight-team tournament. By 1985, the tournament had grown to 64 teams, and the bracket was born. With that kind of history, there’s no better place to create your bracket than with the hosts of spring’s best sporting event: the NCAA’s digital hub. NCAA.com offers you team analysis, real-time updates, and a home for your bracket. With an easy- to-use platform, you don’t have to be a college basketball expert or technology whiz to make your choices and follow your team all the way to the championship. Did you know that according to the United States Patent and Trademark Office (USPTO), if you are an inventor or small business who has limited resources and needs help applying for a patent on your invention, you may be eligible to receive pro bono (free) attorney representation through the Nationwide Pro Bono Program? In general, the requirements for admission into the program are these: (1) your gross income should be less than three times the federal poverty level guidelines, (2) you must demonstrate knowledge of the patent system by having a provisional application already on file with the USPTO and successfully complete the certification training course, and (3) you must be able to describe the particular features of the invention and how it works.

This is the same concern you should have if you find any aspect of your copyright being infringed upon. If this happens, you need to address it as soon as possible. It doesn’t immediately need to be a lawsuit as long as you have detailed records of notifying the perpetrating party of the infringement. If the party in question still refuses to adjust its brand identity or pay for your subscription, then legal action is your next step. This lesson

Mensa Puzzle

Which four letter word can be placed after the words to the left and before the words to the right?

QUICK AWAY BACK _ _ _ _ DOOR WILD DRILL

(see next edition for solution)

Last Month’s Puzzle and Answer

The answer is 2

For more information, go to www.uspto.gov. Click on the Learning & Resources tab, click the Inventors & Entrepreneurs tab, then scroll to the bottom of the page, and click on Pro Bono.

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The Staggering Stats of 2019 US Patents A PLETHORA OF PATENTS

HEFT

came up very recently in a copyright infringement case just a few months ago, costing the company in question an unfathomable amount of money.

The case was called Energy Intelligence Group, Inc. et al. v. Kayne Anderson Capital Advisors, LP et al., and in it, Energy Intelligence Group, Inc. (or EIG) claimed that Kayne Anderson Capital Advisors (or KA) violated their copyright by sharing the credentials of one of their paid subscriptions with nonsubscribers. The jury in the case found that KA infringed upon the copyright 1,646 times and ordered the company to pay $15,000 per infringement. However, the same jury ruled that EIG could have stopped 1,607 of the acts of infringement “through reasonable diligence.” The case eventually went to the Fifth Circuit Court, which took the lack of diligence into account in its final ruling. Instead of winning $24.69 million, EIG was only awarded $1 million for its troubles. If only they’d had a copyright lawyer teaching them diligence.

The USPTO (United States Patent and Trademark Office) granted a record 333,530 patents in 2019, an unprecedented 15% increase from 2018. While IBM led the charge in the number of U.S. patents for the 27th straight year with 9,262 patents, the sheer number of overall patents issued was staggering. Trailing IBM was Samsung with 6,469 patents, and older tech leaders followed, including Canon (3,548 patents), Microsoft (3,081 patents), and Intel (3,020 patents). But the most exciting thing to note is the number of patents Facebook and Huawei claimed last year. Facebook recorded 989 patents, and Huawei registered an incredible 2,418. If you’re unfamiliar, Huawei is a Chinese multinational technology company specializing in telecommunications and consumer electronics. What makes the high number of patents so surprising is that due to the Leahy-Smith America Invents Act — which gives the patent right to the first person who filed for it, not the first person who invented it — the tech community assumed many patent seekers would give up. But these latest figures show that this certainly isn’t the case. The International Financial Institutions infers that this is due to the 2014 patent case, Alice v. CLS Bank. The case gave clarification to what exactly is needed in a patent and the process it goes through when being approved. The courts established that the patent claim first needs to address whether it covers an abstract idea and whether or not it yields any physical, practical, or innovative application. While filing a patent can be tricky with all these rules and guidelines, it’s definitely possible with the right help. With the rising number of patents being filed, the last thing you want is for your patent to overlap with an existing idea or for it to be denied altogether. If you have any questions or concerns regarding filing your patent, give us a call anytime. You can reach us at (407) 598-8407 or (407) 377-6688.

Navigating the ins and outs of copyright law can be challenging. If you feel any aspect of your copyright is being infringed upon, or if you want to double-check that you’re doing your due diligence, reach out to us at any time.

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in determining infringement, as there are likely other factors to help determine that. However, if there is compelling evidence (and other circumstances point to no infringement), the proof may work for your benefit. Some companies will host surveys for consumers to determine actual confusion, though if done improperly, these surveys can hinder your case. To ensure you don’t ever have to fall on this rule, be sure to consider these factors, as well as the other factors not listed here, when building your trademark.

Trademark cases are fascinating and often unique in nature due to the gray area surrounding them. If you are ever worried about someone infringing on your trademark, or you’re not sure if you are infringing on someone else’s trademark, don’t hesitate to reach out to us.

—Coleman Watson

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Inside

Defining Trademark Infringement 1

March Madness Tech to Make You a Predicting Genius Is Someone Sharing Your Subscription Information? 2 The Staggering Stats of 2019 US Patents 3 The Science Behind Gut Feelings 4

HEADS OR TAILS?

The Scientifically Smarter Way to Make Business Decisions

You have two options in front of you. They both sound great, are backed by research, and could transform your business for the better, but you can only choose one. Which do you commit to? When you’re faced with two equally worthwhile options, science says the best way to make a decision is to flip a coin. When you flip a coin, you’re not really leaving the decision up to chance; you’re actually calling on your intuition to guide you. The practice is often

a piece of chocolate. Neuroscientists believe the insula is responsible for self-awareness, particularly for recognizing changes in your body.

When you have to solve a problem, your basal ganglia start working on a solution, even if you aren’t consciously thinking about it. If you make a conscious decision that agrees with the subconscious solution of your basal ganglia, your brain gives off a subtle reward. The decision doesn’t have to be logical to feel right — that’s your gut feeling. However, if the conscious and subconscious parts of your brain don’t agree, your insula detects the discrepancy and registers a threat. It’s the “I have a bad feeling about this” response. Fabritius and Hagemann note that gut feelings “represent the most efficient use of your accumulated experience.” According to the authors, flipping a coin is the best way to really listen to your basal ganglia and insula. Your subconscious brain has already made a decision; flipping a coin helps you test your intuition about each option. If the coin lands on heads and you feel relieved, then heads is the right choice. However, if the coin lands on tails and you’re uncertain or want to flip again, then that’s your intuition saying the other option is the better choice. So, the next time you’re caught in a pickle, grab the nearest quarter and put your intuition to the test.

regarded as unscientific, but there’s a lot of research to support making intuitive decisions. Friederike Fabritius and Hans W. Hagemann, authors of “The Leading Brain: Neuroscience Hacks to Work Smarter, Better, Happier,” explain how we develop that “gut feeling.” Intuitive decisions are driven by two structures in your brain: the basal ganglia and the insula. The basal ganglia are connected to movement and building habits. The insula, part of the cerebral cortex, becomes engaged when you experience pain, feel love, listen to music, or even enjoy

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