I ATEN’T DEAD: The Continuing Trademark Saga of B&B Hardware v. Hargis Industries

Trademakr.pngBy Gwen Wei

Does anybody remember how B&B Hardware v. Hargis Industries started anymore?

B&B Hardware is a labyrinthine case grown out of simple roots: in 1993, B&B Hardware (“B&B”) trademarked “Sealtight”. Hargis Industries (“Hargis”) applied for a trademark on “Sealtite” in 1996. When B&B opposed Hargis’s application, Hargis sought to have B&B’s trademark cancelled. B&B retorted with a suit for infringement. This eventually led to a brief wrangle before the Trademark Trial and Appeal Board (“TTAB”), where the board found there was a likelihood of confusion between the two marks. But retelling the full twenty years of its litigious history, as Justice Alito later remarked, could fill a long, unhappy book.  Over the decades, B&B Hardware has devolved into a slapfest as the case was dismissed and refiled and remanded, surging all the way to the Supreme Court and back again. The case’s significance no longer lies in its eventual final verdict—whether B&B or Hargis gets to seal the deal, as it were—but in the precedent that it sets.

Continue reading “I ATEN’T DEAD: The Continuing Trademark Saga of B&B Hardware v. Hargis Industries”

Uber for the Skies Gets Shot Down by Federal Regulators

FlyNowBy: Samuel Daheim

In December 2015, the United States Court of Appeals for the District of Columbia Circuit held the Federal Aviation Administration (FAA) rightfully concluded that private pilots, using a web-based service to offer flights to potential passengers, presented themselves as common carriers willing to transport persons for compensation.  Thus, the pilots had violated the terms of their noncommercial pilot licenses.  The pilots petitioned the Supreme Court of the United States for certiorari, and a response came on August 1, 2016.

Continue reading “Uber for the Skies Gets Shot Down by Federal Regulators”

Rated T for Tobacco: The Impact of Tobacco Imagery on Movie Ratings

MPAABy Alex Bullock

Whether you should smoke or not is a personal choice. However, whether smoking is good or bad for your health is not really a matter of opinion (spoiler, it’s bad for you). Smoking is certainly not a habit that we, as a society, want to encourage children to pick up (at least not anymore). Yet, one place that has an impact on children’s perception of smoking is at the movie theater.

Continue reading “Rated T for Tobacco: The Impact of Tobacco Imagery on Movie Ratings”

Autopilot Crashed My Car. Who’s Liable?

TeslaBy Mackenzie Olson

Recently, numerous drivers have claimed that their Tesla vehicles have crashed while in autopilot mode. Perhaps most notable was a crash that occurred in Florida, when a 2015 Tesla Model S in autopilot mode failed to apply the brakes and subsequently crashed into an eighteen-wheel tractor-trailer. The driver of the Tesla was killed.

Traffic fatalities are commonplace. In 2014, there were 29,989 motor crashes in the United States, from which 32,675 deaths resulted. This, however, is the first fatality that has occurred in a Tesla while it operated in autopilot mode. However, Tesla autopilot has been used in over 130 million miles, and on average, a fatality occurs every 94 million miles in the United States and every 60 million miles worldwide. Such facts can seem to beg the conclusion that Tesla autopilot renders its vehicles safer than those that are manually operated.

Continue reading “Autopilot Crashed My Car. Who’s Liable?”

Game of Drones

DronesBy Jessy Nations

Sometime during the past decade or so we started taking the idea of making robots a part of our everyday lives more seriously. Naturally, we went from joking about making machines serve us by doing our menial chores, to teaching them to kill. Once our base needs for violence and subservience were satisfied, we quickly began adapting this technology for the highest, noblest, and most human of all endeavors: bothering our neighbors. Meanwhile, our local legislatures are trying to rein these nuisances in and we have to work with seemingly outdated common law theories until they’re finished.

I’m talking, of course, about small flying robots known as drones. What was once the pinnacle of modern robotics – despite being a glorified RC helicopter with a camera –  is now available from the corner 711 for $30. (No seriously. I’ve almost bought one out of curiosity.)

Continue reading “Game of Drones”

EU Privacy Litigation: United States Now Filing An Amicus Brief in Facebook Case

EU FlagBy Jason Liu

The United States will be filing an amicus brief in the ongoing EU case between privacy activist Max Schrems and Facebook. Although not filed yet, the brief will provide vital information on the U.S.’ stance on privacy and international data transfers.

The case comes about because the Data Protection Commissioner of Ireland sought a declaratory action in the Irish High Court, alleging that Facebook was illegally transferring EU citizens’ data to the U.S. under EU law.

Past Privacy Actions in Europe

In the related pivotal case invalidating the U.S.-E.U. Safe Harbor agreement, Max Schrems, an Austrian privacy activist and attorney, brought a prior complaint with the Data Protection Commission (in Ireland) that Facebook was illegally transferring EU citizen information to the U.S. Schrems claimed that the personal data he provided to Irish Facebook servers was also transferred to the U.S.

But what is the Safe Harbor in question? EU privacy law forbids the movement of its citizens’ data outside of the EU, unless it is transferred to a location which is deemed to have “adequate” privacy protections in line with those of the EU. The prior Safe Harbor agreement allowed U.S. companies to transfer EU citizen data to the U.S. if the U.S. government promised to protect the data.

Schrems claimed that the U.S. failed to provide legal protections against U.S. surveillance of data on U.S. servers. These claims were supported by the Edward Snowden revelations of 2013. The Snowden revelations included the NSA PRISM program that provided the U.S. government access to private industry servers of tech companies such as Google, Facebook, or Apple. Snowden also revealed surveillance of world leaders, XKeyscore (internet activity logging program), and various NSA practices used to overcome encryption and hacking methods.

Ultimately, the European Union Court of Justice (EUCJ) ruled that the Safe Harbor agreement was invalidated due to inadequate protection of EU citizens’ data to the U.S. in light of the Snowden revelations.

What is going on now?

Following the case, the Irish Data Protection Commissioner referred Schrems’ original complaint against Facebook to the Irish High Court and also the EUCJ. The current case is about Standard Contractual Clauses and the ability of tech companies to contract with EU citizens to have their data stored in U.S. servers. U.S. companies have argued the “model clauses” from template agreements provided by the EU Commission let EU member states send personal data to countries lacking “adequate levels” of protection under the 1998 Data Protection Act.

In response, Shrems stated that:

I see no way that the [EUCJ] can say that model contracts are valid if they killed Safe Harbor based on the existence of these US surveillance laws. All data protection lawyers knew that model contracts were a shaky thing, but it was so far the easiest and quickest solution they came up with. As long as the US does not substantially change its laws I don’t see how there could be a solution.

What will be the U.S.’ amicus position?

Although unwritten, the U.S.’ amicus brief may contain stances from the U.S.-EU Privacy Shield that was recently ordered by the EU Commission. Notably, the new Privacy Shield will provide:

  • Strong obligations on companies and robust enforcement;
  • Redress options;
  • Clear safeguards and transparency obligations on U.S. government access; and
  • Annual joint review monitoring.

However, because the EU Order providing for the Privacy Shield was EU-centric, it has been difficult to discern which particular points are emphasized by the U.S. Thus, the amicus brief may be a unique opportunity to learn about the most compelling arguments of the U.S. in light of the new Privacy Shield.

Furthermore, although the amicus brief will be directed at international data transfers, it may also prove an important way to gauge how the U.S. views the domestic regulation of data. Through the Cybersecurity National Action Plan, the Obama administration has shown support for protecting privacy rights through the creation of the Federal Privacy Council.

Of course, any further insight into the U.S. treatment of consumer information is always welcome.

Image source: Pixabay

Apple Faces Further Intellectual Property Hurdles in Beijing

Apple DownBy Kiran Jassal

This month, a Chinese company known as Shenzhen Baili Marketing Services Co. won a regulator’s patent ruling in Beijing against Apple for its rounded-edge smartphone design, stirring fears that Apple’s iPhone 6 would be shut out of the market in China. This ruling comes one short month after Apple lost its fight to keep the “iPhone” trademark exclusive to its products following a Beijing court ruling that a little-known accessories maker could use the trademark for a range of its wallets. And among the many interesting dimensions to this recent patent dispute, Apple’s woes are even more complicated by its struggle to keep confidential designs under wraps as they work their way through Apple’s supply chain.

Continue reading “Apple Faces Further Intellectual Property Hurdles in Beijing”

Slippery Slope for Online Service Providers with New California Appellate Court Ruling

ispsBy Tyler Quillin

The most important law governing the internet just had its 20th birthday earlier this year, the Communications Decency Act (CDA). Signed by President Bill Clinton in 1996, the CDA grants online service providers immunity from liability for most illegal activities of their users. What’s more, the CDA not only allows large internet-based companies like Facebook, Amazon, and Yelp! to survive because they don’t have to individually each user’s activity, it also enables a large portion of the freedom of speech the general public enjoys online daily.

Yet, despite 20 years of precedent, the CDA has come under scrutiny. Most notably, a California appellate court issued a ruling that included an order for Yelp!, a nonparty to the case, to take down a defamatory post involving an attorney who sued a former client for posting defamatory comments and reviews on Yelp!. Along with the court order to take down the reviews, the attorney won on a default judgment to the tune of over $500,000.

Continue reading “Slippery Slope for Online Service Providers with New California Appellate Court Ruling”

Screenshot Through The Heart, And Richard Prince’s To Blame

Rasta.jpgBy Gwen Wei

Earlier this year, three artists separately sued appropriation careerist Richard Prince for copyright infringement. The works in question? Photographs with valid and registered copyrights—each framed in an Instagram screenshot by Prince.

Sound familiar? The incidents seem to be an ugly throwback to 2015, when Prince took screenshots of multiple photographs from the Instagram account of pin-up brand Suicide Girls, printed them, and sold each print for $90,000. But none of this is new ground for Prince. Such incidents define his forty-year career: rephotographing the photos of others, reprinting J. D. Salinger’s The Catcher in the Rye with his own name substituted for the author’s, or writing out lines out of joke books for display at art galleries.

Continue reading “Screenshot Through The Heart, And Richard Prince’s To Blame”

All Dance, No Pay Violates the Fair Labor Standards Act

Fair Wage PhotoBy Sam Daheim

On May 11, 2016, the Fourth Circuit held in McFeeley v. Jackson Street Entertainment, that exotic dancers who worked at two exotic dance clubs in Prince George’s County, Maryland, were employees of the clubs as opposed to independent contractors.  Therefore, the clubs were legally obligated to comply with the federal Fair Labor Standards Act (FLSA), and the corresponding Maryland wage and hour laws in regard to their dancers.

The plaintiffs in McFeeley were exotic dancers who worked at “Fuego” and “Extasy.”  They alleged that the clubs misclassified them as independent contractors, rather than club employees, and accordingly failed to pay them the minimum wage required by the FLSA and the Maryland Wage and Hour Law (MWHL).

Continue reading “All Dance, No Pay Violates the Fair Labor Standards Act”