LEGAL THOUGHTS

This blog contains our personal opinions on topics that interest us.

It's only a Safe Harbor if you follow the rules

For an online service provider to take refuge in the DMCA Safe Harbor for user uploaded content (17 U.S.C. § 512(c)), it must designate an agent with the US Copyright Office. In December 2016, the Copyright Office issued a rule to replace the old paper based system for designating an agent with an online DMCA agent registration system. Service providers had until December 31, 2017 to re-register their agents to ensure their DMCA safe harbor protection would not lapse and expose them to copyright infringement claims (see blog post). If a provider designation lapsed and the service provider subsequently re-registered its agent, the provider would still be liable for any infringements that occ

Obtaining a New Jersey License for Retail Sales of Cannabis is a Multifacet Journey

A review of the process to obtain a medical dispensary license for cannabis in New Jersey provides an appreciation of multiple opportunities to improve the chances of success. The following is a summary of positions that are not required by any statute or rule but were taken by successful applicants. Based on an understanding of the process, this is a dynamic situation rather than a stagnant list to achieve success. Medical Dispensary License An appreciation of the successful applicants for a medical dispensary license for cannabis in New Jersey provides the required components. Most specifically, successful applicants had four designated positions. An attorney is required to obtain and es

Bots = copyright infringement

There was a fascinating story about how automated bots are scraping Twitter for images with lots replies and then creating merchandise (Fortune link). As these are automated bots, their actions can lead to some obvious copyright infringement issues. Image by Pete Linforth from Pixabay #copyright

Consent cannot default to yes

Over the last six months, I blogged a number of times about how consent for cookies must be explicit, affirmative and clear (see link 1, link 2, link 3). A recent article examined consent management platforms (CMPs) and discovered not suprisingly that many businesses are not complying with consent requirements under the GDPR (TechCrunch link). The article found that many CMPs are configured improperly with default settings set to "yes" and CMPs setting cookies before consent is received. Last year, as part of my firm's revisions to our website, we examined a few cookie consent tools and installed the CookieHub cookie solution (We are not affiliated with CookieHub and we receive not compens

New USPTO Trademark Rules - owner email address

Last week on February 7, 2020, the USPTO issued new rules covering the filing of US trademark applications (see USPTO link to Exam Guide 1-20 Mandatory Electronic Filing and Specimen Requirements) First, these rules were issued on February 7th and come into effect in 8 days on February 15, 2020. Second, all trademark applications must now include a trademark owner's email address (even if an attorney is filing the application). The basis for this requirement is to permit the USPTO to communicate with the owner after an attorney's representation ends. Examples of acceptable owner email addresses would be: • A personal email address; • An email address created for the purpose of communicati

PTA and PTE

Recently, one of my colleagues received a notice from the USPTO stating that a granted patent was subject to a PTA of 2038 days. What is a PTA? A patent term adjustment (PTA) accounts for delays in the patent office's action examination and delays by the applicant in responding to an office action (eg, not responding with three months which counts against you). There is another adjustment available to patent owners. A patent term extension (PTE) accounts from regulatory delays that affect when a product can be marketed (eg, FDA review) and you can get up to 5 years (separately from a PTA). The goals of the PTA and PTE are to allow patent holders to enjoy the full 20 year patent term from t

EU trademark descriptions - Just a little narrower

Last year, I blogged about the Sky v. Skykick trademark case in light of the Advocate General's (AG) opinion that found that broad description of goods and services were against public policy. On January 29, 2020, the Court of Justice for the European Union (CJEU) issued its ruling and it did not hew to the AG's opinion (see Curia link). The CJEU found that broad descriptions of goods and services is not a ground of invalidity, and that a lack of clarity and precision in the descriptions of goods and services is not against public policy, which was a ground for invalidity (Opinion at paragraphs 54-71). The CJEU found that a trademark applicant that a trademark application made without any in

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