gdpr processing personal data

When is it “Necessary” to Process Personal Data Under GDPR?

Last week I wrote about the EU’s new General Data Protection Regulation (GDPR) consumer-friendly approach to personal data collection and storage.

This regulation, which went into effect earlier this year, requires that companies only collect, store, or process personal data when there is consent or when it is necessary. Companies are often surprised at the broad definition of “necessary” under the regulation. Often, they do not need an individual’s consent to collect, store or process their personal data.

The GDPR provides five lawful bases outlining when it is “necessary” to process someone’s data. If your use falls into one of these five categories, then you do not have to worry about obtaining, or losing, consent.

Article 6(1)(b): Contracts

If the processing is “necessary for the performance of a contract” to which the individual is a party, or if the individual requested the company to do something prior to entering into a contract, the processing is necessary and therefore lawful under GDPR.

Here are some transactions that would fall under this category:

  • Paul purchases a t-shirt from an online store, which creates a contract between Paul and the store. The store needs to collect data from Paul, including his shipping address and payment information, in order to complete the contract and hold up its end of the deal.
  • Karen is having brochures printed for her office, and contacts a printing company for a quote. The printing company needs to collect Karen’s email address to send her the official quote. If Karen decides to work with the printing company, the company will need additional information in order to complete the transaction.

Contractual obligation will cover many transactions. However, an important part of the GDPR is that the data is collected for a specific and limited purpose, and that collection is limited to what is necessary for the original purpose. If you want to continue to use the customer’s information for marketing purposes after the transaction has completed, you may need to find a different lawful basis.

Article 6(1)(c): Legal Obligation

If a legal obligation requires you to process an individual’s information, you must do so.

Examples of legal obligation include:

  • A court order requiring a business to turn over information on an individual
  • A financial institution noticing suspicious account activity that could be money laundering reports this activity under relevant criminal statutes
  • Businesses collecting and reporting required information about their employees to relevant government agencies.

As these examples demonstrate, a company’s legal obligations to collect, distribute, or otherwise process personal data are typically spelled out in statutes, regulations, or court orders.

Article 6(1)(d): Vital Interests

The GDPR requires disclosure of personal data in situations when it is necessary to save someone’s life. This typically refers to sharing medical records between doctors, hospitals, and emergency rooms. Sharing information about the patient is permitted, but it is also permitted to share information about parents in order to save a child’s life.

Rule 46 of the GDPR also considers “protecting an interest which is essential” to the life of individuals to fall under this category, such as if processing data is necessary for emergencies, like fighting disease outbreaks, recovering from natural or man-made disasters, or other humanitarian emergencies.

However, it is also clear from the rules that if another lawful basis is available, someone controlling personal data should operate under that basis. Operating under a vital interest basis should be used only as a last resort.

Article 6(1)(e): Public Task

You are allowed to process data if doing so is “necessary for the performance of a task carried out in the public interest or in the exercise of official authority.”

If you work for a government agency, it is often necessary to process personal data. For example, immigration officials working at airports must process data of people at border crossings. This differs from the “legal obligation” basis, in that the data processing activity does not need to be specifically listed in a statute or regulation. However, there must be a clear source of law you can point to when processing data under the public task basis.

Additionally, organizations that are not specifically government agencies but serve a public function may also operate under the public task legal basis. If a private company is charged with parking meter enforcement by a city, then that company may collect data on illegally parked vehicles. If a private company has been hired by a city to test water after a potential contamination, they are permitted to act under the public task legal basis.

Article 6(1)(f): Legitimate Interests

The GDPR also allows a company to process personal data when it is in a company’s legitimate interests to do so, as long as the interest is not outweighed by the interests or fundamental rights in an individual’s data.

This is the broadest of the categories with the most room for interpretation. Although this basis may seem flexible, it is not meant to be a free-for-all. As a company, you should ask:

  • Are you pursuing a legitimate interest?
  • Is the data processing necessary for this purpose?
  • Do the individual’s interests override the legitimate interest?

Legitimate interests include using employee and client data for, marketing, IT security, or fraud prevention. For example, a credit card company might monitor its customers data to prevent identity theft. An email server may analyze incoming mail to weed out spam or potential viruses. Companies can also use information within the realm of “legitimate interests,” meaning that sending mail or emails out to former and current customers can be lawful.

Even though it might be easy to say that every data processing activity falls under the “legitimate interest” lawful basis, your company should not rely on this category as a catch-all. Instead, carefully review your data processing activities to ensure you are operating under the necessary basis that best matches your intentions.

This article does not contain legal advice, and is for informational purposes only. Our internet privacy attorneys have significant experience helping our clients stay compliant with data privacy and protection laws. If you have questions regarding compliance with GDPR, contact Revision Legal’s attorneys with the contact form on this page, or call us at 855-473-8474.

 

 

personal data processing

Personal Data Processing Under the GDPR

In May 2018, the European Union’s General Data Protection Regulation (GDPR) went into effect. To read the regulation in its entirety, visit click here. The GDPR standardized personal data protection requirements across the 28 EU countries. Although the regulation is broad, advocates for GDPR applaud its consumer-friendly approach to personal data collection and storage.

What are the Governing Principles of GDPR?

GDPR provides a number of general principles relating to processing personal data, namely that it should be:

  • Collected and processed lawfully, fairly, and in a transparent manner;
  • Collected for a specific and legitimate purpose, as well as limited to what is necessary for the collection purpose
  • Kept only as long as necessary for the initial purpose;
  • Processed securely and protected against unlawful processing.

What are Personal Data and Personal Data Processing?

Article 4 of GDPR defines personal data as any information relating to an identified or identifiable natural person, who can be identified by reference to identifiers such as a name, ID number, location data, an online ID, or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.

Examples of personal data include:

  • Real names and online usernames;
  • Mailing, work, email, and IP addresses;
  • Photographs; and
  • Genetic and biometric data, including DNA

Article 9 prohibits the processing of data regarding racial or ethnic origin, political opinions, religious beliefs, or trade union membership except in certain specific situations and provides further limitations related to the use of genetic, biometric, and general health data.

Personal data processing refers to personal data that is collected, recorded, organized, structured, stored, adapted or altered, retrieved, consulted, used, disclosed by transmission, disseminated or otherwise made available, aligned or combined, restricted, or erased or destroyed. GDPR applies to processing of personal data through automated, partially automated, as well as non-automated means if it is part of a structured filing system.

Examples of personal data processing include:

  • Staff management and payroll administration;
  • Sending promotional emails to an email listserv;
  • Shredding documents containing medical records or bank records; and
  • Posting a picture of someone online.

The business or person who determines the means and purposes of personal data processing is known as the controller of the data. The controller is responsible for adhering to the GDPR and can be penalized for failing to meet the regulation’s requirements.

What are GDPR’s Requirements for Personal Data Processing?

The GDPR permits processing personal data when a user consents to the processing, or when it is necessary to process data.

Consent to Process Personal Data

In order for an individual to consent to a controller processing personal data, the controller must fully inform them about what they are consenting to. Best practices to obtain consent include making the request prominent and separate from terms and conditions of a site.

Consent must also be positively given – users must have an opportunity to affirmatively agree that the controller may process their data. Users must be able to revoke consent in the future, and consent should not be a precondition of the controller providing a service to the user.

People who are 16 years old or older are capable of consenting on their own. Children under 16 must have a parent or guardian consent on their behalf.

Necessary Personal Data Processing

GDPR also list five times when it is necessary for controllers to process data without explicit consent:

  • Contracts: If a controller has a contractual obligation to the data subject, and data processing is necessary to complete contractual obligations, the controller may process the data. Additionally, the controller may process data if doing so is a necessary prerequisite for entering into a contract.
  • Controller’s legal obligation: If the controller has an obligation to report data to a regulatory body, or is under a court order to provide information, they are under a legal obligation to provide it, regardless of consent.
  • Vital interests: If personal data disclosure is required to save someone’s life, the controller is obligated to do so. This situation will almost always involve health data.
  • Public task: This category of necessary processing relates to tasks carried out by an official government agency, on behalf of an official agency, or a task that is carried out in the public interest. This will often relate to government agencies, but government contractors or private water companies may also operate under this umbrella.
  • Legitimate interests pursued by the controller: This category is very broad. It requires the controller to pursue a legitimate interest, that the processing be necessary for the purpose, and that the controller’s legitimate interest does not outweigh the individual’s fundamental rights or freedoms.

Praise and Criticism for GDPR’s Data Processing Requirements

GDPR has drawn praise from tech leaders, including Apple CEO Tim Cook, who recently expressed support for a similar regulation in the US. Cook listed four areas of the GDPR he believed should be legislated in America:

  • The right to have personal data collection be minimized (Article 5(1)(c));
  • The right for users to know what data is collected on them (Article 15);
  • The right to access that data (Article 13); and
  • The right for data to be kept securely (Article 5(1)(f).

Critics of the regulation believe that it can be too burdensome for businesses to comply with or that limitations will stymie growth of artificial intelligence systems, which rely on individuals’ personal data to grow. Others argue that large companies like Facebook and Google who currently offer free services in exchange for the ability to collect and utilize user data may limit free options due to new limitations on data processing.

What are the Penalties for Failure to Comply With GDPR?

Failure to comply with GDPR’s data processing requirements can lead to a number of different penalties, including warnings, bans on data processing, audits, orders to restrict or delete data, and monetary fines up to €20 million or 4% of a company’s worldwide net sales. You should take compliance with GDPR very seriously.

Our internet privacy attorneys have significant experience helping our clients stay compliant with data privacy and protection laws. If you have questions regarding compliance with GDPR, contact Revision Legal’s internet lawyers with the contact form on this page, or call us at 855-473-8474.

 

intellectual property in china

Find Out How to Protect Your Intellectual Property from Your Chinese Manufacturer

Any business with one eye fixed on the future knows that they can’t afford to stay out of China, one of the four largest emerging markets in the world.

Unfortunately, businesses also know that they can’t afford to stay in China either, as China accounts for at least half of all intellectual property theft from United States companies.

How do you beat the catch-22?

By learning how to play smarter than China.

That’s why we’re explaining everything you need to know about protecting your intellectual property in China, from the problems you’ll face to steps you can take.

What is Intellectual Property?

But first, we should address the basic question at the heart of this: what is intellectual property?

After all, if you’re not clear on what intellectual property actually is, you won’t have a clue about how to keep it safe.

In the simplest terms, intellectual property is any product of the human intellect that is legally protected from unauthorized use. It generally falls into four categories:

  1. Copyright
  2. Patent
  3. Trademark
  4. Trade secrets

The basic goal is to protect your property and business from infringement, particularly from the unauthorized use and misuse of your creation.

The most basic example of intellectual property theft? An employee walking out the front door with your designs to work for another company, which will market your trademarked product, design, or production process as their own.

Why You Need to Protect Your Intellectual Property

With that in mind, let’s talk about why you need to protect your intellectual property.

Intellectual property isn’t a physical asset–it’s an idea. That means that unlike a painting or a car or some other concrete object, you can’t lock it in a vault.

Yet safeguarding it is crucial.

One of the biggest reasons for this is maintaining a competitive advantage. Let’s say your company created a new drug, the only drug of its kind to do what it does or successfully treat a particular illness. That drug would make you pioneers in the field, and since you’re the only one who knows how to make it, you have a monopoly on the market.

Now let’s say someone else starts making that same drug and selling it. Suddenly, it doesn’t matter that you got there first–what matters is whether consumers happen to see your brand or your competitor’s brand first.

Another important element is brand recognition. When your company creates goodwill with customers, they’ll learn to identify your brand with that goodwill and use the brand as a shorthand identifier for quality.

And when you’ve worked so hard to create that positive association, you don’t want another company to profit on your work.

Problems with Intellectual Property in China

Since your intellectual property is so important to your business, you’d obviously want to protect it.

Here’s the problem: intellectual property protections are largely reliant on the laws of the place in question. Unfortunately for you, intellectual property laws in the United States are wildly different from intellectual property laws in China.

Worse, Chinese companies are encouraged under official Chinese government policy to poach intellectual property from American companies–often with the active participation of Chinese government personnel.

Your best option? Don’t wait for someone to infringe on your trademark. Instead, prevent the problem from happening.

Protecting Your Intellectual Property in China

So, with all of that in mind, how do you go about protecting your intellectual property on the Chinese market?

Nothing can replace an experienced intellectual property attorney, who can help you take a look at the rules, regulations, and common practices in the areas you want to do business and help you come up with a comprehensive plan to keep your property secure.

There are, however, a few things you can do to make your life (and your attorney’s life) a little simpler.

Know the Law

It starts with knowing the law.

And yes, we did just tell you that the government frequently encourages intellectual property pillaging. However, if you want a legal basis to address the issue (and protect your property from the rest of the world, as well) you’ll have to know your way around some of the most commonly used manufacturing agreements and IP registrations in China.

Again, your lawyer can help you explore your options in greater detail, but we’ve provided a few starting points here.

Manufacturing Agreements and IP Registrations

The first thing you should know about is NNN agreements, which are basic agreements protecting the confidentiality of your products while preventing your Chinese manufacturer from competing with you or circumventing you by going directly to your clients.

Many Western businesses make the mistake of believing their nondisclosure agreements are sufficient protection in China (for the record: no, they’re not.) Nondisclosure agreements work in countries like the US or Canada where judges have ample power to issue and enforce injunctions. That’s not the case in China.

You’ll also need a mold/tooling protection agreement, which makes it clear to all involved parties that the molds and tools you are having manufactured belong to you and cannot be used to manufacture products for anyone else. It seems basic, but it’s how you prevent your manufacturer from using your tools to compete with you.

In addition, you should get product ownership and product development agreements.

A product ownership agreement makes it clear that the product you co-develop with your Chinese manufacturer is solely your property.

A product development agreement is a little more complicated, but it’s designed to iron out the exact details of your product development relationship. Good agreements will make it clear who owns what components of the finished product and the precise milestones the manufacturer must meet along the way in order to receive payment.

Register Intellectual Property in China

The next thing you can do to help protect your intellectual property is to register your intellectual property in China if you have any intention of using it there.

Yes, even if you’ve already patented it elsewhere.

If you’ve been paying attention, you’ve probably noticed a trend by now: protection to the level of redundancy is a good thing where China intersects with your property. You want any dealings with your manufacturer to be ironclad and airtight.

Remember, patents are national rights. If your product is already legally protected in the local environment, it’s one less loophole a competitor (or your manufacturer) can exploit to edge you out of your own market.

Used Establish IP Protection Practices

In the process of patenting your product in China and ironing out details with your Chinese manufacturer, you should make sure you do one thing consistently throughout: abide by well-established local practices of IP protection.

Specifically, you should comb through Chinese laws on IP protection and make sure you’re abiding by it to the letter.

For example, this could include standard practices on how to handle inflow and outflow of sensitive material, restricted rights access to internal databases, and other practices.

Think of it this way – you don’t want to set up an invisible wall between Chinese coworkers and the rest of the company. That said, it’s much more socially acceptable to monitor workers in China than the West, and that’s something you should take advantage of.

If anything, most Chinese companies go well beyond what most Western companies would consider acceptable. Mobile phones, for example, might not be allowed in company buildings at all, in or out, and USB ports are blocked.

Whatever you may feel about surveillance, the fact remains that in China, it’s a competitive advantage. If you’re not using it, your Chinese competitor certainly is.

Establish Chinese R&D

Some companies have tried taking it a step further, to ensure that their Chinese manufacturer is just as invested in their success as the rest of the company.

One way that companies have done this is to establish Chinese-based research and development centers, particularly focused in areas where the company does not currently hold a large body of intellectual property.

The idea is that, through close collaboration, both sides have just as much to lose if something is leaked to a competitor, which will disincentivize your manufacturer from selling you out.

Plus, if the field is new for the company, you won’t need to transfer much (if any) core intellectual property technologies over to China. This means that you’re actively encouraging your Chinese manufacturer and Chinese staff to innovate on your behalf without having to worry about compromising your core technology.

There are downsides, of course, especially if you want to foster collaboration (which you should). Inevitably, there will have to be some sharing of core technology, or there’s no longer any incentive to stay loyal to you.

When all else fails, think of it this way: decide what you do not want to be shared with your Chinese colleagues. Anything not on that list can be shared freely.

The Attorney You Need to Protect Your Ideas

Regardless of the specific methods you use to protect your intellectual property in China, one of the best tools you can have in your arsenal is a talented intellectual property lawyer.

That’s where we come in.

We litigate to help you understand the complexities of intellectual property, business, and technology, and we believe in giving our clients plain language and respect.

If you need an intellectual property lawyer, don’t hesitate. Get in touch today to see what our firm can do to help your business thrive.

online defamation

Online Defamation: Your Response Guide for Slander and Libel

Slander and libel can come from unexpected places. With the invention of the internet, online defamation has arisen. Learn how to respond if you’re targeted.

Imagine waking up to the sound of your phone uncontrollably buzzing, only to learn that you have several new emails, posts on your Facebook page, and comments on your website.

Your worst nightmare has come true–a malicious user has posted a false review of your company that tarnishes your reputation.

Online defamation has been rearing its ugly head more often with the rise of social media. But what exactly is online defamation, and how can companies combat untruthful and damaging statements posted online?

Online Defamation

Defamation is legally defined as a false statement that serves to damage the reputation of a business or individual. Slander and libel are under the umbrella of defamation.

In order to have a case for defamation, you have to prove that the statement is not true and that it specifically concerns yourself or your business. It also has to be published by a third party–like a website or blog.

You’ll have to show evidence that your company experienced significant damage because of the statement. This is one of the hardest things to prove in court.

Unfortunately, you can’t take legal action against someone who is actually telling the truth. If someone digs up your dark past and posts it online, you can’t sue them. The truth hurts.

Slander vs. Libel

Slander and libel are subcategories of defamation. They both concern statements that harm you or your business’ reputation.

Slander

Slander is the act of verbally speaking an untrue statement to another party. It must tarnish another person’s reputation. Online slander can usually be found in a video, audio file, or podcast.

Libel

On the other hand, libel is the act of writing a damaging and untrue statement to another party. Websites, blogs, comment sections, forums, and review sections are all places where libel can occur online.

Take Action Against Online Defamation

You’re able to file a lawsuit for defamation of character, but your success in trial depends on how much havoc the false statement has wreaked.

The First Amendment of the Constitution states that Congress is not allowed to make a law “abridging the freedom of speech, or of the press.” This makes it more difficult to make a case for defamation.

The Communications Decency Act is another barrier that could bar you from winning a defamation case. This act prohibits you from suing an internet service provider (ISP) for defamation. ISPs are meant to act like distributors, not perpetrators.

That being said, a lawsuit is not the only solution to defamation. There are other methods to alleviate the damage to your company’s reputation:

Just Ignore It

Maybe someone left your company a defaming remark in a review. In this case, you might be able to simply ignore it.

Readers are smart enough to weigh the good against the bad. They will usually just shrug off a blatantly exaggerated statement. The bottom line is that if there are numerous positive reviews, then these will outweigh the negative review.

However, ignoring this type of statement is not always the best choice. Some false statements might put your company’s integrity at risk. When someone publicly accuses your company of a crime, then you’ll need to do more than just ignore the comment.

Get Rid of It

There are numerous places where you can report the person’s false statement and potentially have it removed.

First, try reporting them to their registrar. Certain domain name registries have rules that prohibit websites from making a profit by posting defaming remarks.

You can also try to report them to their hosting company. You might be in luck if their website doesn’t comply with the host provider’s terms and conditions.

If the comment was posted on social media websites like Facebook, Twitter, or Instagram, you can report the user. However, social media websites don’t really care about defamation–they care about trademark use. The user making negative comments might be using your trademarked name as the name of their profile, which means that you might be able to take control of their account.

Reporting the user to Google is another option if they are violating Google’s SEO rules. Websites that misuse Google’s Adsense ads, or use “black hat” SEO methods can get banned and have their ad profit taken away.

You can go straight to your service provider as well. If the defaming statement defies any copyright or trademark laws, then you’ll have a better chance of getting the statement removed. Because of the Communication Decency Act discussed earlier, it’s not guaranteed that the statement will be deleted.

The only downside to removing the statement is that the user may decide to repost the same statement on a different website.

Fight Back

If you can’t remove an incriminating statement, then you’ll have to resort to making a rebuttal. Your rebuttal should be brief and concise. Avoid bickering with other users, as this will tarnish your reputation even more.

Sometimes, rebuttals can actually make the situation worse. It can make it seem like there is some credibility to the statement, which can trigger more criticism and attention directed towards your company. You have to weigh the pros on cons between risks that are associated with rebutting, compared with doing nothing at all.

Take Legal Action

Lawyers that specialize in defamation will be able to determine your next move. If the user’s statement is false and there’s clear evidence of damage done to your reputation, you’ll have a better chance of making a case.

Make sure to keep records of all the defaming statements made towards your business. Take screenshots of the posts, comments, search engine results, or other incriminating pages and print them out. You should also hold onto any evidence that indicates the user’s identity.

Lawyer Up

Experiencing online defamation can be frustrating–complex laws and policies make things confusing for busy companies.

Our lawyers at Revision Legal specialize in representing tech companies. We can assist your business as it goes through the process of combating defamation. Contact us to see how we can help.

infringing upon a trademark

What You Should Do if Someone is Infringing Upon Your Trademark

Do you have a registered trademark that is being infringed upon? Check out this helpful guide to put a stop to it immediately.

The U.S. Patent and Trademark Office receives half a million applications every year. About three-quarters of them get registered. That leaves a lot of people and companies without trademark protection.

It also leaves a lot of people and companies open to trademark infringement. Of course, not all cases have the intention of causing harm and are accidental. Others do have malicious intent.

In all cases, they’re infringing upon your rights as the trademark holder. Trademark infringement is a complicated situation that requires legal expertise. In this article, we explain the steps you should take if you feel your registered trademark is being infringed upon.

What is Trademark Infringement?

When you start your business, you protect yourself from fraud. You make sure your computers have anti-virus and anti-malware installed to keep from getting hacked.

You spend hours making sure your site is working and your ordering process is flawless. You brainstorm with partners and peers on ways to market your brand.

You design logo after logo until you come up with the perfect one. You go through the trademark process with the U.S. Trademark and Patent Office. Before you know it, your name and logo are all yours!

That means, that only you can use your business name and logo. There are some confusing exceptions. For instance, Delta Airlines and Delta Faucet Company share the same name but have nothing to do with each other.

Trademark infringement happens when there is confusion between the use of two logos and whether it’s getting used on competing goods and services.

There’s 100% chance you’ve never tried to buy a plane ticket and ended up with a new faucet instead. There’s no confusion between the two Deltas, so there can be both an airline and faucet manufacturer with the same name.

Now, you trademarks do get infringed upon all the time. If you’ve ever called all tissue “Kleenex,” all lip balm “Chapstick,” or all headache medicine “Asprin,” you’ve technically infringed upon a trademark.

Don’t worry, these specific cases (and Thermos, Band-Aid, Velcro, etc.) get categorized as generic trademarks. This happens when a product is so significant or popular that it becomes synonymous with an entire class of products.

In other words, if you ask a maintenance worker where the building’s Dumpster is, you won’t get sued.

How You Know Someone is Infringing Upon Your Trademark

If you suspect someone is using your company name or company logo without permission, you have to prove it. A court of law takes many things into consideration when hearing a trademark infringement case.

The first thing they’ll do is apply the “likelihood of confusion” test. It’s actually an umbrella term used by various federal courts. Most courts use the same factors to figure out if a logo use causes confusion.

Their goal is to determine if a consumer will get confused by the products which can damage your business. The 6th Circuit Court uses an “8-Factor Trademark Infringement Test.”

What You Should Do If Your Trademark Gets Infringed Upon

If you pass the test and can prove confusion, your next step should be contacting a trademark infringement attorney. They specialize in handling cases like yours and will guide you through the legal process.

Send a Cease-and-Desist Letter

The first step that’s most common in a trademark infringement case is sending a cease-and-desist letter. You can do this on your own, but you should get legal advice to ensure you’re using proper terminology and covering all your bases.

The letter demands that another entity stops using your trademarked name or logo at once. It’s possible they didn’t realize they were using a registered trademark and stop using it.

If their intentions were a little more nefarious, they could ignore your letter and continue using your trademark. In this instance, you want to speak to a lawyer about filing a lawsuit.

File a Lawsuit

If the person or entity receives your letter and continues to use your trademark, it’s time to file a lawsuit. The suit will get filed in federal court if it spans more than one state. If the infringement is local, it may get filed in a state court.

The purpose of your suit is to stop your trademark from getting infringed upon. But you may be able to collect damages if:

  • You can prove your business got hurt financially as a result of the trademark infringement.
  • You can prove the alleged infringer made money from using your trademark.

There a few things to remember if you file a lawsuit. The first is that you must file for a trademark in the first place!

In court, you can argue on “common law” rights to a name. But, your chances for winning your case are greater if you filed for federal trademark protection with the USPTO.

As an entrepreneur or small business owner, you have a lot on your plate when you’re getting started. Filing for a trademark may be the last thing on your mind. But if you don’t and you find someone is using your name or logo after you’re operating and established, the fight becomes who used it first.

The other note of importance is that you must actively use your trademark. You can’t stop other businesses from using a name or logo unless you’re using it in the marketplace to identify your goods or service.

A court will give you minimal protection if you’ve held a trademark for years but haven’t used it.

How You Can Prevent Trademark Infringement

When it comes to prevention, you can ensure no one is infringing upon your trademark by monitoring it. Like not actively using your trademark, you can lose some of the federal protections by not monitoring it.

Specialized software is available that monitors trademark infringement. Reputable trademark infringement attorneys also have this software and can monitor for you. This is a proactive step in protecting your company name and logo that puts a stop to unauthorized uses.

A New Kind of Law Firm for a Data-Driven World

Your business and its trademark are unique. Don’t let anyone get away with infringing upon your livelihood. If you suspect someone is, you may need help proving it.

You need a lawyer that knows the effect of having your trademark infringed upon has on your business. That’s where Revision Legal comes in.

We’re a law firm that understands the connections between law, technology, and business. We’re experienced litigators who fight to protect online businesses.

If you feel your rights are being infringed upon, we can help. Contact us today and let us know how we can give you back your peace of mind.

how to trademark a product

How to Trademark a Product: The Ultimate Guide

Do you need to know how to trademark a product? Check out our ultimate guide to get started and protect your work today.

A trademark legal battle has waged over the word “Apple” for three decades. You see, the Beatles named their music company Apple Corps.

Eight years later Steve Jobs came along with Apple Inc. After decades of fighting, Apple Inc has paid almost $100 million to Apple Corp. They worked it out for now, but it is a lesson for all of us.

Knowing how to trademark a product can help you avoid situations like this. Avoiding a generic name and doing a thorough search would have helped prevent this from happening.

Keep reading our guide to find out the basics of trademark registration.

What Can Be Trademarked

You can trademark a word, symbol, device, or color. You can trademark anything that identifies your company and goods in the marketplace.

You can only trademark commercial marks. There are three types of trademarks you can get.

Trademarks and service marks are phrases, words, or symbols. A Trademark indicates a good while a service mark indicates a service.

Collective marks work like a trademark but signify a group. This lets the different members of the group benefit from the trademark.

Certification marks are for the characteristics of your product. For example, if your product has “100% silk”.

How to Trademark a Product

Once you have a chosen mark that you want to register, you have 5 steps to take. The first step in the process is to check that you have a unique mark.

Step 1: Search for Similar trademarks

Search the USPTO database for similar marks. Do not focus on looking for exact matches.

Anything that looks or sounds similar can trigger a rejection. Take your time with this search, if your application gets rejected your fee.

It is smart to hire a trademark attorney before you begin this step. They will understand the database and the best way to find any potentially confusing marks.

Step 2: Prepare and File your Application with USPTO

You’ve done your search and there are no marks like yours. Now you’ll want to prepare your application for submission.

Gather proof of how you are currently using the mark. This proof is called your specimen.

Step 3: Review Your Application

About three months after you submit your application, the USPTO will assign you an attorney. This attorney reviews your application and does one of two things.

He may respond to your application with a request for calcification. If he’s happy with your application he will approve it for the next step.

Sep 4: Review of Trademark by the Public

The USPTO attorney will give your mark a publication date. On this day your trademark gets published in the Official Gazette.

There is a 30-day window after publication for someone to object to your trademark. They would need to make this objection on the basis that your mark will impact their trademark.

Step 5: Use your Registered Trademark

If no one objects during step four then you get your trademark. About three months after step four is complete you will receive a trademark certificate in the mail.

Once your registration is complete you can start using the trademark symbol after your mark. This is the “R” in a circle.

How To Speed up the Process

You will start to hear from the USPTO about your application within 3 months of filing. The whole process will take at least 6 months though.

Often the process can take a year or longer. There are a few steps you can take to speed up the process though.

Read our post about trademark registration process here.

Choose a Strong Mark

Not all names and symbols get approved. The stronger and more unique your mark, the more likely it will get approved.

Make up a word, or choose a word that is not associated with the industry. You can also pick a name suggesting the character of service without naming it.

Don’t Choose a Confusing Mark

What is the likelihood of confusion of your mark?

The purpose of registering a trademark is to protect your image in the market. By choosing an easily confused name you are likely to have it rejected.

Choose a mark too close to a competitor and you are likely to have it opposed. A search for similar marks should help you avoid this before you submit your application.

Begin Using Your Mark ASAP

If you are already using your mark you can select “use in commerce” on your application. This gives you one less step to do during the application process.

Make Sure Your Application is Correct

Making mistakes in your application will cause a delay in the process. These mistakes are easy to fix, but they take time.

Respond to the USPTO Promptly

If you receive correspondence from the USPTO you need to respond for your application to keep moving forward. The deadline to respond is 6 months, but you shouldn’t wait until the deadline to reply.

How Long Are Trademarks Good For

Once approved, you have trademark protection for ten years. This means that every ten years you will need to renew your registration.

Get Help to File For Your Trademark

The first step in getting a trademark registration is to come up with a unique mark. This can be a word, symbol or device.

Make sure that you choose a strong and unique mark. Then begin using it right away.

Do a search for similar trademarks that are currently registered. Make sure that yours is not similar or easily confused with any of them.

Once you are confident you have a unique mark, create an application. Review it for any errors and then submit it to the USPTO.

Once your application is submitted, follow the lead of the USPTO. Respond to any communications they send so your application will continue to process.

These steps are detailed and can take months to complete. If you are unsure of how to trademark a product the best option is to get help for a trademark attorney.

Get help today with registering your mark for trademark protection.

meme stealing

Meme Stealing and More: 7 Times Someone Sued Over a Meme

 

Meme stealing may sound like harmless behavior, but recently cases have been filed. Check out these 7 and learn the laws behind creating memes here.

Memes are nothing new. In his 1976 book The Selfish Gene, Richard Dawkins noted the primitive nature of the rapid spread of ideas, or memes, in a people group.

Primitive is the perfect word to describe memes.

While they’re mostly meant in good fun, memes play loose with intellectual property. There’s a fine line before laughter becomes litigious, and meme-based lawsuits are on the rise.

Catch up on the ins and outs of meme stealing.

1. Grumpy Cat

Tardar Sauce is a grumpy faced internet sensation. Better known as Grumpy Cat, she’s the veritable online offspring of Oscar the Grouch. She struggles with mornings, hunger, and her disdain for affection.

Grumpy Cat’s fame has gotten her public appearances, complete with a rider for bottles of water and a comfy seat. It’s also earned her a lawsuit.

Grumpy Cat Limited received $710,001 in damages after filing suit against a beverage company called Grenade, which used Grumpy Cat’s image to sell unlicensed merchandise. While Grenade did have the rights to produce a line of “Grumpy Cat Grumppuccino” iced coffees, they also made her the mascot of a roasted coffee line and sold t-shirts.

When presented with the argument, the jury found in favor of the meme.

2. Pepe the Frog

Pepe the Frog is a somewhat lascivious looking anthropomorphic frog who spends a lot of time lamenting “that moment when…” People tend to dress him up and photoshop hats on him in the course of their meme making. Why not?

It’s all in good fun until it turns political.

The alt-right designated the frog as their internet figurehead, using him to promote the Trump campaign and dressing him in Klan robes and military helmets. A painter in Missouri began selling paintings depicting Pepe holding a rifle in front of the White House.

InfoWars, a radio show turned robust internet juggernaut, used Pepe the Frog on a MAGA poster available for sale on their website. The poster finds Pepe in company with Roger Stone, Kellyanne Conway, and, of course, Donald Trump.

This has all led to a plea to #SavePepe and several lawsuits. Matt Furie, the frog’s creator, after issuing a takedown notice, has sued the painter and InfoWars. He’d like to see Pepe return to his amicable roots and enjoy his golden years in peace like his cousins Senor Frog and Michigan J.

3. Ziggi’s Mullet

Ali Ziggi Mosslmani was just a kid having fun at a party until the internet started doing math equations on his half shaved head. The rest of his head featured a bold cascade of shaggy locks, a mullet.

The Internet loves a mullet. It loves to make fun of a mullet at least.

Ziggi’s mullet has been used to work out the Pythagorean theorem, it has been photoshopped as a skunk, and it has been turned into a Pin the Tail on the Donkey game. Even the Daily Mail Australia and KIIS radio got in on the teasing.

Mosslmani has sued them for defamation.

4. Attractive Convict

Mugshots aren’t renowned for their flattery of the subject, but Meagan Simmons managed to take a good one. Her steady gaze and telltale orange jumpsuit took the Internet by storm. It got people asking for her cell number and wondering if looks could kill.

Though no one wants to be reminded of the night they got a DUI, there’s not much Simmons could do until the website InstantCheckmate.com used her mugshot in an ad promotion, thus monetizing the meme. She filed suit against them for exploitation.

5. Adam Holland

Because nothing seems off limits when you’re online, memes can quickly become cruel. Such is the case with Adam Holland.

Adam has Down syndrome. A picture of him at 17 proudly holding up a drawing went viral. Meme creators replaced his artwork with drawings and phrases of their own, some of them derogatory and libelous.

Tampa’s WHPT-FM, the Bone, used the picture for the header of their dumb news section. They changed his drawing to read “Retarded News.”

Holland’s parents sued the radio station and the website signgenerator.org, which devised a “Retarded Handicap Generator” using the image. They reached a settlement for $150,000.

6. Ludacris

Defamation suits are not the only legal action inspired by memes. Copyright infringement is also having its day in court. Rapper and actor Ludacris was sued when he posted a meme belonging to LittleThings, Inc.

The image in question is an illustration of a busty woman applying what appears to be antiperspirant under her breasts. The depiction of the full-figured woman’s plight in hot weather, sweat beneath her bosoms, is a playful nod to summer.

LittleThings was less amused by Ludacris’ “ill-gotten gains,” profiting off of their intellectual content.

7. Self-Proclaimed “Meme Master” Sued for Meme Stealing

Elliot Tebele is the man behind the social media presence known as “F–k Jerry.” He’s got an all-caps quip for any of life’s situations.

He’s speared salads and luggage restrictions. His best work is topical everyday observations: sleeping in when your partner gets ready, trolling your husband’s ex-girlfriends, even people speeding past you and getting stuck at the next light.

But is his best work his own?

Tebele is being sued by the father of a 16-year old who claims the “F–k Jerry” curator stole his son’s Instagram account. After a promotion with the account ended, Tebele is being accused of taking over the meme-centric profile, which now has over 3 million followers.

Honorable Mention: No Copyright Infringement Intended

Taylor Swift has a history of taking legal action against perceived threats to her bottom line. She shut down Etsy shops selling merchandise made by her own fans. And she tends to trademark lyrics from her songs that are otherwise common phrases.

She can’t seem to shake it off.

Noting her tendency to litigate, people have taken to posting lengthy disclaimers after mentioning the singer or her lyrics on social media. Covering your bases never goes out of style.

Has Someone Been Meme to You?

Bad puns may not be illegal, but the jury’s still out on meme stealing. If you’ve found yourself in the middle of a fair use text war or if someone stole your meme, let us help you.

We specialize in Internet law, and we know how to provide the protection you need.

buy an online business

How to Buy an Online Business and Receive More Profit

Do you notice an online business you would like to buy? Before you make an offer, know how to buy an online business. Here are tips to receive more profit.

Wondering how to make more money without doing more work? You might want to buy an online business.

Every 30 seconds, over $1.2 million dollars is generated by the e-commerce world. With numbers like this, it’s easy to see why buying online businesses is so lucrative.

However, anytime you invest your money in something new, it pays to know exactly what to expect and what the best approach is going to be. That’s what we’re here for. In this guide, we’ll break down exactly what you need to know to buy and make money from a successful online business. Keep reading, and get ready for a whole new world of income opportunities.

Why Buy an Online Business?

Maybe you’ve considered becoming an entrepreneur. You could build yourself a brand-new business from scratch.

You’ll need to find the perfect niche, research your target audience, build a website, create great content, and figure out the best marketing approach. Don’t forget your social media presence, and creating actual products or promoting affiliate products. The list goes on and on.

Even with all this work, it will take some time for your online business to start making money. For months or even years, you could be sinking funds into the project while waiting for it to become profitable. But then again, you could bypass that whole process and buy an online business that’s already profitable instead.

How to Choose a Quality Internet Business for Sale

When you buy an online business, you’re not just purchasing a website. You’re buying a fully functional business that already has customers and products. You’re buying marketing methods that have been proven to get new leads and sales. You might also be buying a social media presence, ad campaigns that are already going, or even employees and assistants.

Once you buy it, you’ve taken over. You can keep letting it run the way it’s already running, or you can make some changes to try to get more profits. For example, maybe you see something the current management isn’t doing that could help get more sales. After you purchase an online business, it’s yours to do whatever you want with.

Look at the Track Record

While looking at online businesses for sale, make sure to check the track record of profits and sales before you buy. See the financials for yourself – don’t rely on what the seller says.

However, you shouldn’t put your money toward an online business just because it makes a lot of money. Although the profits are important, you also need to be sure to buy a company in a niche that you’re interested in. This will ensure that you’ll stay committed to it in the long run. Plus, if you have an interest in the niche, you’re more likely to be on top of relevant industry changes.

Consider Training

When you buy the business, you shouldn’t have to figure out how to run it. Most sellers include a training in the purchase to show you how it all works. This lets you take a shortcut around most of the work that goes into building a successful business. The company you buy should already be running well – you just need to learn how to do it yourself.

Weigh the Price

Of course, the up-front cost of buying an established online business is higher than the costs of starting one yourself. Although you’re almost certain to save money in the long run, you’ll have to consider if the cost of buying is worth circumventing all the startup work.

The more successful the site, the more you can expect to pay. You can pay tens or hundreds of thousands for a lucrative site. However, small online companies can be found for hundreds or thousands of dollars, too.

To figure out a fair price to pay, try multiplying the business’s annual profits by two or three. Don’t forget to look at whether or not you’re getting a good domain name, assets, branding, lots of site traffic, a strong social media presence, and a good email list in the deal.

In addition to those factors, you should look for an online business that’s growing, to maximize your investment. The best businesses to buy don’t hinge on a single product – they have multiple income streams. They should also attract traffic from a number of different sources.

Look for in-place marketing systems, and revenues that stay consistent across months. If these factors are all present, you know your money is going to go a long way.

Where to Find Online Businesses For Sale

There are a lot of good e-commerce sites you can buy, and there are quite a few places you can look for them, too.

However, no matter where you find the site, you’ll want to be sure to do your research. Just because it’s listed on a reputable source doesn’t mean the site itself is high quality.

Your first step is to decide on the niche you want to target. Then, you can look up niche-specific online marketplaces where that kind of business is for sale. On these marketplaces, you can quickly see the stats for hundreds or thousands of businesses, making it easy to compare. Sites like Flippa and Shopify are some of the most popular marketplaces, but there are plenty more.

When you see one you like, check it out for yourself. If everything looks good, message the owner through the online marketplace for next steps. Ask any questions that will help you make your decision. If the seller is legit, they should answer your questions to the best of their ability.

Ready to Buy an Online Business?

When you buy an online business, you’re not just buying the current profits and customer base. You’re buying the potential for growth, and making an investment in your future.

Owning an online business – or a few – is one of the best ways to set up income streams that you can rely on for years to come. However, you’ll need to protect those investments, too. Wondering how to keep your money safe? Check out our guide here.

If you’re considering buying an established online e-commerce business, contact the E-commerce Attorneys at Revision Legal today using the contact form on this page, or call us directly at 855-473-8474.

data breach statistics

Top Data Breaches of 2018: Hackers Find New Methods

We periodically update this post with recent data breach statistics. Now that we’re into 2018, it’s time to look at the top security breaches in 2018, plus review 2017 and previous years.

At Revision Legal, we know that cyber-attacks are a constant threat. The number of data breaches is large and the amount of customers affected is staggering. Data breaches are bad for business and can be even worse for customers.

January 2018: 115 Cyberattacks

Winner: Health South-East RHF, a large healthcare management organization in southeast Norway — 2.9 million patients

On January 8, 2018, hackers or a group of hackers broke into the computer systems of Health South-East RHF, a healthcare organization that manages hospitals in Norway’s southeast region.

The hackers potentially stole — the extent of the theft is still undetermined — patient information on 2.9 million people, which is about half the population of Norway.

The information accessed included all electronically stored patient information including names, addresses, insurance providers and more. See report here.

Read more

how to claim a domain name

How to Claim a Domain Name and Secure Your Website URL

How to Claim a Domain Name and Secure Your Website URL

Did you come up with your company name and are working on your website? Reserve your name before someone else takes it! Here’s how to claim a domain name and how to secure it.

Coming up with a domain name for your website can be confusing and time-consuming. Some people coin domain names from their names, but it does not always work well for businesses.

Once you have decided on a decent name, you need to claim it to prevent anyone else from taking it. You also need to protect it from possible disputes, trademark violations, and domain squatting.

The following guide on how to claim a domain name should help you understand the process.

Claiming a domain name requires strategy. Observe the following practices to invent an appropriate URL for your website.

1. The Name Should Reflect Your Interests

Your website will become your ground for implementing all your digital efforts. Therefore, selecting a domain name which communicates your product is important.

When developing a domain name, you should think about how the name looks and sounds. Avoid making the name too long for your audience to remember. Furthermore, some platforms like Twitter limit the number of characters.

The domain name has to appeal to the market and evoke the desired inference for it to attract traffic to your website. A strategy which works for many businesses is forming a name from their brand. Such names promote the awareness and recognition of one’s brand on the market.

If you haven’t developed a brand yet, you can incorporate a witty call to action in the domain name. The name should draw the attention of the desired audience at a glance.

2. Choose a Suitable Domain

The choice of a domain may depend on the type of website you want to register. Most of the top level domains (TLD) are suitable for specific niches, but some are for general websites. Here are some examples of TLDs and their intended application area.

.Com

Initially, the purpose of .com was to imply the commercial intention of a website. Today, the domain is widespread in various fields. Most people registering websites go for .com perhaps because of the domain’s popularity.

.Net

This domain is predominant in networking technology industries. Some companies which use .net are network operators, advertising agencies, and Internet service providers.

.Org

This is another TLD which has veered off the original focus on nonprofits. Nowadays, you will find commercial enterprises with URLs containing .org.

.Country

Domains which contain country names are suitable for local businesses, organizations, or communities. They are useful in targeting a regional market. A good example is .us.

.Info

One purpose of this domain was to reduce the preference of .com among entities across the globe. It’s common with various newspapers and information portals.

3. Identify a Domain Name Registrar

The work of a domain name registrar is to reserve and manage internet domain names. Some DNS hosting providers also facilitate the registration of domain names. Registration of your preferred name is critical, and you should do it fast before someone else does it.

How to Secure Your Website URL

Domain security is vital not only for yourself but also for those who visit your website. People are aware of the risk of cyber-attacks. They are worried when opening websites to avoid becoming victims of hacking.

Some domain owners do not employ strict security measures when developing their website security policies. Unfortunately, poor domain management can result in irrevocable damage and a poor reputation for your business.

A hacker can alter the accessibility setting of your website if they can access your domain name control panel. Losing the domain name of your website can bring your business to a standstill. You can take several measures to safeguard your domain name from loss or theft

1. Secure Your Accounts

Your passwords should be strong to prevent unauthorized access to your system. The key here is to use random characters which are hard to guess. A password generator can help you create secure passwords.

Don’t trust anyone with your account credentials. Consider investing in two-factor authentication for the access of your account. When someone enters the password, for example, the system can issue a code via SMS to verify the identity of the person.

2. Use Antispyware Program

Invest in an antispyware software and keep it updated to prevent key-logging programs from stealing your usernames and passwords.

All applications in your business should be up to date. Outdated software is a soft target for malware and viruses and can lead to the theft of data.

3. Enhance your Domain Privacy

Website owners must provide accurate contact information about themselves to the registrar. The domain registrar forwards this record to WHOIS. Your data at WHOIS is available to the public.

Thieves steal such information and impersonate website owners in an attempt to transfer their domains. You can go for private domain registration to avoid revealing your contact information. Your domain registrar can offer privacy by replacing your information with theirs.

4. Update Your Registration Information

Ensure that your domain name contact information with your registrar is accurate. Updated details will enable your registrar to inform you if there is some suspicious activity targeting your domain name. Your infrastructure should enable you to view your registrar’s notifications immediately.

5. Secure Your Website

Internet users are confident when opening secured websites since they pose a reduced risk of leaking customer information. Such sites have URLs starting with https. Your site should have an SSL (or TLS) certificate to protect your audience.

6. Use The Domain Lock Service

Most domain registrars provide a domain transfer lock which prevents your domain name from getting transferred without your knowledge. You can ask your registrar to provide a registry lock even if it may cost you some amount. This should prevent an intruder from making changes to your DNS information without your authorization.

How to Claim a Domain Name – Final Thoughts

Domain name security is perhaps not a priority for some website owners. However, it should be one of the first considerations to make when opening a website given the rate at which cyber-crime has risen. Hackers are becoming clever by the day, and you have to avert them before they strike.

New website owners should learn how to claim a domain name before launching their sites. They must also stay abreast of new internet security trends to keep their URLs secure. They should deter hackers with a combination of security measures to seal all loopholes.

Protecting your online brand, website, reputation, and domain is important If you need help with legal issues, an internet lawyer can help.

Contact Revision Legal’s attorneys with the contact form on this page, or call us at 855-473-8474.