BRANFBLOG™

OUR NEW BLOG ADDRESS!!

2011-06-16T14:47:00.000-07:00

Our new blog address is:
http://branfman.com/blog

This will allow us to seamlessly integrate our blog with our website which will also provide free audio and audio-visual materials for your listening and viewing pleasure.

Please update your RSS subcriptions.

Best regards,

Dave Branfman

New Tools For Policing Internet Piracy: One Step Forward or One Step Back?

2011-06-07T22:40:00.000-07:00

It is probably nothing less than a given these days that on multiple levels the Internet can be seen as both a blessing and a curse. One of those levelhttp://www.blogger.com/img/blank.gifs - the hijacking and pirating of copyrightable content and brands/trademarks - is perhaps amongst the most obvious. Trademark and brand owners and content owners like motion picture studios and record labels have tried a variety of techniques to cut down on Internet piracy - including filing lawsuits first against individual unauthorized downloaders and now against anywhere from 500 - 20,000 "John Does". [Initially the "John Does" are only known by their Internet addresses - not their true names]. Those techniques have been less than overwhelmingly successful.

Now there are efforts afoot to create a new tool to try to stop counterfeiting, piracy and bootlegging: Senate Bill S 968 is designed to get online advertising networks, companies that process payments and search engines to shut off support for any website that is found by a court to be dedicated to copyright or trademark infringement. Here is a good short analysis of some of the pros and cons of Senate Bill S 968. It makes for very interesting reading.

Sequels, Prequels & Fourquels: Is The Film Biz Playing It Too Safe?

2011-05-18T21:07:00.001-07:00

The serialization of movies is really not a new phenomenon. If you are old enough - or enough of a film lover - you might remember the Charlie Chan, Andy Hardy and The Thin Man series of films. And let us not forget the 22 James Bond films that have been made since the early 60s. But with the recent success of the fifth film in the "Fast & Furious" series and the upcoming release of the fourth film in the "Pirates of the Caribbean" series - as well as plans for more "X-Men", "Twilight" and "Spy Kids" movies, it seems like the trend is turbo-charged for the 21st century. Here is a good article which examines the current trend in more detail. Needless to say, this trend does not bode all that well for independent filmmakers.

"The Social Network 2": More Facebook War Stories

2011-04-17T20:51:00.001-07:00

I liked the movie, but I can't say I thought it was a great candidate for an Academy Award for Best Picture. But as interesting as "The Social Network" was as a movie, the story didn't end there. As you may recall, the Winklevoss twins famously claimed that Mark Zuckerberg stole the idea for Facebook from them. As it often does, litigation (but not hilarity) ensued. The lawsuit was eventually settled. But then the Winklevoss twins decided that they had been defrauded by Facebook in the settlement negotiations. They took the somewhat unusual step of suing again - this time to unwind the settlement - now worth about $180 million in cash and Facebook stock. Since we're on the subject of movies, I am reminded of the title of one of Woody Allen's earliest and funniest movies: "Take the Money and Run". But that's just me.

Now a three-Judge panel of the 9th Circuit Court of Appeals has tossed the Winklevoss' legal claim. The opinion is written by Judge Alex Kozinski, who is well known in legal circles for writing cogent and occasionally humorous opinions. This one is worth reading, if for no other reason than it describes in some detail many of the steps that were taken during the settlement negotiations and afterwards. You can see the sequel to "The Social Network" in the works. Apparently the Winklevoss' are still not satisfied. News reports indicate that they intend to ask a full panel of 9th Circuit judges to review their case. It would appear that the Winklevoss' can afford to pursue their claims. Or perhaps, as Judge Kozinski wrote in the opinion itself: "The ensuing litigation.....gave bread to many lawyers".

Copyright Wars: $100 Million Copyright Infringement Lawsuit Against Oprah Dismissed

2011-03-29T21:07:00.000-07:00

We believe in the copyright law. It's been part of our laws since the Constitution was enacted. It's there for a good reason: "to promote the progress of science and useful arts". We advised and represent quite a few copyright owners. But every so often an over-zealous copyright owner goes too far. This could be one of those cases.

Charles Harris wrote a booklet called "How America Elects Her Presidents". During the 2008 election, Oprah read aloud on her tv show questions that were based on material in the book. Apparently one of the questions was literally taken from Harris' book: "Which one of our presidents weighed the most?". [Answer: William Howard Taft at over 325 pounds]. Harris filed a lawsuit which requested millions of dollars in damages. Oprah filed a Motion to Dismiss the lawsuit and the judge agreed when he ruled that the allegedly infringed parts of his book were not original, and that Oprah's recitation of the Taft fact, even if she did take it from Harris' book, was not an actionable copyright infringement.

The Problem With the Music Business Isn't the Music

2011-03-09T13:37:00.000-08:00

For reasons I can't exactly put my finger on, in the last three weeks I've had the great fortune to see a series of remarkable live musical performances. They range from Eric Clapton to Los Lobos, KD Lang, Daniel Lanois' Black Dub, Steve Poltz, Lucy Schwartz, Bushwalla and Black Joe Lewis and the Honeybears. I know I keep reading that the music business is in trouble. And I'm sure it is. But there's nothing wrong with the music that's being written and performed. Great music is still out there. For my money, there is still no substitute for seeing a great performer do it live. The music business may be having trouble figuring out how to adjust to the changes brought about by the rise of the Internet, but as long people LOVE music - and I'm betting that's never going to stop - there will always be a way for great music to get out there. Just as long as people who love it support it.

Why Bother Registering A Trademark?

2011-02-24T10:59:00.000-08:00

This is a question we get asked all the time: Why bothering registering a trademark? Is it really worth it? In other words, what are the advantages of going to the trouble of registering a trademark as opposed to simply continuing to use an unregistered trademark?

In general, there are three main benefits to registering a trademark:
* (1) stronger protection for your trademark;
* (2) it tends to deter others from copying your trademark; and
* (3) better/stronger remedies in court if you have to sue someone for infringing your trademark.

More specifically, some of the advantages are:

1. The owner of a U.S. trademark registration certificate is entitled to a legal presumption that it is the valid nationwide owner of the trademark;

2. Trademark registration provides the trademark owner with the ability to recover up to triple financial damages and attorney's fees from a trademark infringer in a lawsuit;

3. Potential buyers of businesses usually see increased value when the seller’s trademarks have been registered;

4. Judges tend to give more weight to a registered trademark than an unregistered trademark in trademark infringement lawsuits;

5. A trademark registration increases the likelihood of successfully obtaining an infringing Internet domain name from a cybersquatter;

6. A trademark registration provides presumptive notice to others that your trademark is already being used; thus a company that later adopts a confusingly similar trademark will have trouble claiming ignorance of the trademark;

7. A U.S. trademark registration can be used as a basis for obtaining a trademark registration in foreign countries;

8. A trademark registration (like a copyright registration and an issued patent) can be recorded with the U.S. Customs & Border Protection service and used as a basis for seizing counterfeit products before they enter the U.S;

9. The owner of a U.S. trademark registration has the right to use the ® symbol after the trademark; that alerts third parties to the trademark registration and helps to eliminate the defense of "innocent infringement";

10. The trademark will appear in trademark search/clearance reports conducted by third parties; that tends to discourage those third parties from proceeding with using your trademark or filing a trademark application; and

11. The U.S. Patent and Trademark Office ("PTO") will refuse to grant a trademark registration for any trademark it believe is "confusingly similar" to your trademark.

Those are eleven pretty good reasons for going to the trouble and expense of registering a trademark.

Domain Names Alert - .CO Domain Names Land Grab Starts Sunday?

2011-02-03T13:34:00.000-08:00

According to the L.A. Times today - the domain name registrar Go Daddy (a/k/a godaddy.com) is going to launch a big push this Sunday during the SuperBowl to promote the .co domain name extension. We can’t tell yet whether Go Daddy has accurately figured out that there is a real demand for a new domain name extension or whether they’re making the kind of mistake Coca-Cola made a while back when they tried to introduce “New Coke”. But we do know that good .com domain names are getting harder and harder to register and – again according to the L.A. Times - Go Daddy will probably be paying something like $3 million for each 30 second commercial it runs during the SuperBowl. So….unless they are idiots they must be figuring there’s going to be a good return on that investment.

On the other hand, here’s a blog entry that claims the .co extension is just a waste of money.

So…is this a real opportunity or just a hype? We don’t know yet, but for the $30 being charged for a .co domain name ($28 if you buy six or more at the same time), it might be worth a small investment NOW (i.e., before Sunday) to:

(a) protect your company name and brands with a .co domain name if for no other reason than to block out your competitors and cybersquatters; and

(b) to think creatively about other .co domain names you might want to control as we move forward the next few years.

If you are interested in this but for some reason are not a Go Daddy fan, our local outside IT firm EBrothers Solutions, Inc. is an authorized Go Daddy re-seller that offers domain name registrations for the same price as Go Daddy - but with a local personal presence. You can visit them at www.ebsihosting.com.

We don’t exactly know where this is going to go, but we thought you would want to know sooner rather than later.

Please call (760/637-2400) or write (dbranfman@branfman.com) if you have any questions or thoughts about this.

THE CARE & FEEDING OF DOMAIN NAMES: WEBINAR DE-BRIEFED

2011-01-28T12:04:00.000-08:00

Yesterday we presented a webinar entitled "The Care & Feeding of Domain Names: Tips For Businesses & Lawyers" as part of the State Bar of California's Cyber Institute. Presenting via webinar is interesting/challenging because there isn't as much interactivity as in a live presentation. But we had a good group online including both private practice and in-house lawyers. Our theme was: these days it's not enough to just own one or two domain names for your business or your product; managing and maximizing the value of your brand(s) and domain names takes a conscious and concerted effort. The webinar addressed 11 concrete tips for accomplishing this. If you would like a copy of the PowerPoint we prepared, please contact us by phone at (760) 637-2400 or by email at info@branfman.com to request a copy.

THE CARE & FEEDING OF DOMAIN NAMES: WEBINAR ON JANUARY 27TH

2011-01-26T21:07:00.000-08:00

These days it's not enough to just own one or two domain names for your business or your product. Managing and maximizing the value of your brand(s) and domain names takes a conscious and concerted effort. That's why we're presenting a webinar entitled "The Care & Feeding of Domain Names: Tips For Businesses & Lawyers" on January 27, 2011 @ 1 pm Pacific. The webinar is being offered under the auspices of the State Bar of California's Cyber Institute. You can sign up here. [The State Bar is charging the fee - not us - and we're doing our part pro bono]. If you can't attend but would like a copy of the PowerPoint we've prepared, please contact us by phone at (760) 637-2400 or by email at info@branfman.com to request a copy.

Confessions of a January Hater (And What To Do About It....)

2011-01-05T08:49:00.000-08:00

I have a confession to make: I hate January. Not just this January. Every January. Why? All the festivities between Halloween and the (forced?) frivolity of New Year's Eve are over. It's been two months since there was any major league baseball and still a month before Spring Training begins. That's why.

Plus this January we begin full year three of uncertainty about business in this country and the world since the Crash of September 2008.

But....having said that........I am reminded of a conversation that I had a few years ago with a client who is a full-time psychologist and a part-time inventor. He called to ask a trademark question and of course - he being a nice guy and all that - he began the conversation with "How are you?". Somewhere - out of nowhere - I responded: "I choose to be doing well today".

His (slightly perturbed) response: "Well, if more people said that I'd be out of business".

My point, of course, is that so much of where we end up is a result of the choices we make - especially the choice about our attitude. I don't necessarily wake up every day with a smile on my face. But before I get rolling I make a choice that this is going to be the best day I can possibly make it. And, if necessary, I remind myself of that during the day. It helps, of course, to make the right choice when I look at the pictures of my family in my office and look around to see the people I work with everyday.

Surely there is lots we could be worried or glum about; and if we choose to focus on those things it's going to be a tough day/week/month/year/life. So my choice is to remember that I have a choice.

Thank you to all of you who read this who are part of our community of friends, clients, and professionals. Thank you for reading and thank you for your support. We all rise in the boat together and we look forward to a year of progress, growth, increased knowledge - and the beginning of Spring Training when the grass is green and the smell of fresh-cut grass reminds us of where we've been and that anything is possible!

Is THUMBDRIVE a Generic Term or a Registerable Trademark?

2010-12-16T13:00:00.001-08:00

The question of what is or isn't protectible as a trademark comes up all the time. ESCALATOR, THERMOS, ASPIRIN and even HEROIN were all registered trademarks at one point in time, but for a variety of reasons they became unprotectible generic terms. On the other hand, KLEENEX®, FRISBEE®, and XEROX® still remain protectible trademarks. Go figure.

What about THUMBDRIVE for flash drives? Is it a protectible trademark or an unprotectible generic term? The U.S Patent & Trademark Office has just issued a very interesting ruling that answers this question.

Why is this important? Because it highlights the problems with choosing descriptive or generic terms as trademarks for goods or services. Yes, the applicant for the THUMBDRIVE trademark registration ultimately won. But it took several years and probably several tens of thousands of dollars in legal fees to get there. Most entrepreneurs and small businesses can't waste that much time or risk that much money. It is therefore much wiser to choose a unique, clever, fanciful and easy-to-remember name for a trademark than a weak descriptive or unprotectible term.

10 FOR '10: BRANFMAN'S HOT IP TIPS #3

2010-11-10T17:21:00.000-08:00

This is the third IP tip in the series. For previous tips scroll down:-

IP TIP #3: ONE IS NOT ENOUGH:

Most businesses these days own one – maybe two – domain names related to their business. But due to clever and unscrupulous cybersquatters, one domain name is not enough. At approximately $11 per year per domain name, it makes sense to allocate a few hundred dollars a year to occupy some Internet real estate and block out cybersquatters by registering a batch of domain names. So if for example your main domain name is groovysurfstuff.com, why not register groovysurfstuff.net, groovy-surf-styff.com, groovysurfstuffs.com, and groovysurfstuff.tv? How about obvious misspellings like grrovysurfstuff.com or groovysurfsutff.com? And then there’s always groovysurfstuffsucks.com. Spending a couple of hundred of dollars a year on your inventory of domain names is a lot cheaper than hiring a lawyer to send a cease and desist letter to a cybersquatter. And compared to the cost of a lawsuit? Small potatoes!

Theft Of Idea Claims:

2010-10-18T17:20:00.000-07:00

It has been our experience that almost all screenwriters, when given the chance, will pitch their screenplay to a studio, production company, producer, or the like without fully understanding the legal consequences of this type of disclosure. When submitting a creative work to any third party, it is not only wise - but necessary - for screenwriters and their agents to be knowledgeable about the current legal standards for protecting a creative work. Copyright protection and “idea submission” laws are constantly changing and it is hard to know for sure how and if your ideas will be protected. Take the Benay brothers for instance. They collaborated on a screenplay in the late 1990’s entitled The Last Samurai. They took the right first step and registered the copyright in their screenplay with the U.S. Copyright Office. Their agent pitched their screenplay to Bedford Falls Productions, Inc., an affiliate of Warner Bros. Entertainment, and thereby created what the brothers claim was an “implied contract.” But, as fate would have it, the studio passed on their idea – only to later release their version of a film called “The Last Samurai” starring Tom Cruise.

The Benay brothers naturally filed suit against Bedford Falls and its affiliates for copyright infringement and for theft of their idea. Recently, the 9th Circuit Court of Appeals rejected their claim of copyright infringement due to their failure to prove substantial similarity under their two-part similarity test: proof of extrinsic and intrinsic similarity. However, although the brothers lost their copyright infringement claim, they were able to convince the court that there might have been a breach of an implied contract to pay them for the use of their idea(s). In other words, the case will now be sent back to the trial court to determine if the tacit agreement made between the brothers’ agent and the folks at Bedford Falls was not honored and whether the Benays should be compensated for the use of their ideas.

Moral of the story: 1) Register your copyright with the U.S. Copyright Office; and 2) make sure your pitches to third parties are clear that your expectation is that you will be compensated if they use your ideas even if they don’t use your screenplay itself.

10 FOR '10: BRANFMAN'S HOT IP TIPS #2

2010-10-09T17:33:00.000-07:00

This is the second in the series:

IP TIP #2: YOUR EMPLOYEES AND EX-EMPLOYEES MAY BE OUT TO GET YOU:

Do you have employees - or better yet disgruntled ex-employees - who might be tempted to turn you in for a million dollar reward? If so, the Business Software Alliance ("BSA") has for several years been offering "rewards" of "up to" $1 million to anyone who turns in a business that is using software that is not properly licensed. [The BSA is a trade association made up of a few little companies like Apple, Microsoft, Symantec, Adobe and about 10 others].

And what does the BSA consider to be "not properly licensed"? Even if you purchased the software you are using legitimately, if you haven't kept the proofs of purchase, receipts, etc., then as far as the BSA is concerned you are guilty of copyright infringement and subject to financial damages of up to $150,000 per infringement. The BSA also considers Microsoft Office to be five (5) separate programs, so if you have an unauthorized copy of Office the BSA claims you are liable for up to $750,000 in damages.

The BSA has been very successful in scaring businesses into paying huge sums of money to avoid a lawsuit. The irony is that sometimes the BSA extracts financial settlements from businesses that exceed what the damages would be if the business went to court and then worked out a court-supervised settlement with the BSA.

Forewarned is forearmed. We have helped several businesses negotiate resolutions of these kinds of disputes with the BSA.

10 FOR '10: BRANFMAN'S TEN HOT IP TIPS

2010-10-06T09:16:00.000-07:00

We recently wrote an article called "10 FOR '10: TEN HOT IP TIPS FOR LAWYERS AND THEIR CLIENTS" which highlights ten interesting intellectual property law legal developments and topics. Rather than reprint the whole article here, we will post one of the tips every few days in order to give each of the tips some room to breathe and an opportunity for comment. Here is the first one:

IP TIP #1: Photo-Shock:

Did your website designer grab some nice photos from somewhere to put up on your website? If so, it's time to check the terms and conditions of the license your web designer entered into for you (or didn't!) to make sure you have the right to use those photos for what you are using them for. Three large photo libraries (Corbis, Getty Images, and MasterFile)have recently embarked on a massive campaign which threatens big-time lawsuits in order to extract thousands of dollars (or more) from innocent businesses who have no idea they are using photos on their websites that aren't properly licensed.

We have handled several of these cases just within the last year.

Trademark Wars - Part 3: It's Not All Fun and Games With Online Games

2010-09-09T13:53:00.000-07:00

What's in a name? I've been asking that question for almost thirty years and it never gets old. Great names and trademarks make for great businesses. Just ask GOOGLE, YAHOO, MRS. FIELDS, GREYHOUND, APPLE, and countless others.

But naming is often harder than it looks and often not pretty. Right now Zynga - home of the popular Internet game site FARMVILLE - is locked in an expensive legal battle with a company called Digital Chocolate over who owns the rights to the trademark MAFIA WARS for an online game, etc. Here is an article about the lawsuit filed by Digital Chocolate against Zynga in which Digital Chocolate claims that Zynga has stolen the MAFIA WARS trademark. If you are really ambitious, there is a link in the article to the actual complaint filed by Digital Chocolate that started the lawsuit.

It's Called The Music "BUSINESS" For A Reason.......

2010-08-09T15:35:00.000-07:00

One of the great challenges for a professional songwriter, musician (or any other creative type for that matter) is to try to balance the creative spirit with the need to take care of business. Sir Francis Bacon is credited with having written "For also knowledge itself is power". In other words - "knowledge is power". Nothing could be more true when it comes to the music business. That is why music business conferences are a great opportunity for songwriters and musicians to bone up on the business side of things in a concentrated way in a couple of days.

San Diego's very own North Park Music Thing kicks off this Friday August 13th at the Lafayette Hotel in the North Park section of San Diego. During the days on Friday and Saturday there will be loads of panels and workshops on everything from getting started in the music business to music public relations to social networking and important legal topics (moderated by yours truly!).

At night on Friday and Saturday there will be dozens of music showcases all over North Park. The price of admission to the conference includes a wristband for the music showcases. People pay hundreds of dollars to attend conferences like this in Austin, Texas and New York City; the North Park Music Thing is quite affordable at $20 for a one-day pass and $35 for a two day pass.

The Importance of Due Diligence

2010-07-21T10:26:00.000-07:00

Two of the biggest pitfalls a business owner can make when planning on filing a trademark application with the Patent & Trademark Office is failing to perform a detailed trademark search beforehand and failing to understand the basic rules of trademark law. This is a little something we lawyers like to refer to as a lack of due diligence. Typically what happens is a business owner, who most likely and understandably is trying to save a few bucks, sets their heart (and more importantly their pocketbook) on building their brand around a name and/or logo that may not necessarily be available to them or without understanding what makes a good and clear trademark. What these passionate entrepreneurs fail to understand is the 'likelihood of confusion' their potential mark might cause when compared to existing marks already established in the marketplace. Take Tami Cromar for instance. She is a small business owner of a cookie shop based out of Salt Lake City, Utah. She is currently at odds with Pillsbury Corporation, a subsidiary of General Mills, because of what she chose to name her shop: My Dough Girl. According to the Pillsbury Corporation, the name of Cromar's business is confusingly similar to Pillsbury Corporation's Dough Boy®trademark. Rather than fight the industry giant, Cromar has decided to concede to General Mills' claim of infringement and has begun working on a new name for her business. Ultimately when it comes to filing a new trademark application, we recommend to our clients that they think about the money they can save in the long run by doing their due diligence ahead of time. Here is a link to the article that details the Pillsbury vs. My Dough Girl case.

Copyrights: For Songwriters - Registering Copyrights vs. Registering with ASCAP/BMI/SESAC

2010-07-12T15:15:00.000-07:00

One of the questions we frequently receive is whether it is necessary for a songwriter to register his/her songs with both ASCAP (or BMI or SESAC) and the Copyright Office. One of the main things about the U.S. Copyright Office application/registration is that in the U.S. you need either a pending copyright application on file or an actual issued copyright registration certificate IF you have to sue someone for copyright infringement - depending on which legal jurisdiction you have to file your lawsuit in. So...in our experience it is better to file a copyright application sooner rather than later and it is not a question of either filing with ASCAP/BMI/SESAC or the Copyright Office; it is a matter of needing to do both.

Copyright Wars - Why Bother Registering A Copyright?

2010-06-30T12:17:00.000-07:00

Of all the forms of intellectual property protection - patents, copyrights, trademarks, trade secrets - copyrights are the most affordable to register. Copyrights are the lifeblood of just about every creative type of business, entrepreneur and artist. The general rule in the U.S. is that the copyright in a work MUST be REGISTERED with the U.S. Copyright Office BEFORE a copyright infringement lawsuit can be filed. There are some exceptions to that general rule, most notably in the 9th Circuit due to a recent court decision here. The 9th Circuit consists of California, Alaska, Oregon, Nevada, Arizona, Idaho and Montana. Thus in the 9th Circuit a copyright infringement lawsuit can be filed if the copyright owner has merely filed a copyright APPLICATION, even if the registration certificate hasn't issued yet. But in states where the general rule applies, it can be a real drag if you have to wait for the Copyright Office to process your copyright application before you can file your lawsuit. That can take anywhere from 8 - 18 months (or more) - UNLESS you want to pay a "Special Handling" fee of $760 on top of the regular $35 fee. The Special Handling fee will usually get the Copyright Office to register your copyright in about 10 days or less. When it comes to copyrights, our motto is: "Register early and often".

Copyright Wars: Google Wins Round 1 in Viacom Lawsuit

2010-06-24T22:53:00.000-07:00

For better or for worse, the wheels of justice can sometimes move at something less than lightning speed. Viacom Inc. filed a $1 billion federal court copyright infringement lawsuit against YouTube more than three years ago and only this week the judge in the case 86d Viacom's complaint. [In technical legalese the judge granted YouTube's motion for summary judgment]. This doesn't mean that the case is over, and Viacom may still get its "day in court" - but the granting of the summary judgment motion is a bad sign for Viacom. Now it will have to appeal the court's decision to the federal court of appeals. We predict that the case will eventually end up in the U.S. Supreme Court. Here is a good article which describes the latest developments in this case in greater detail.

Trademark Wars - Part 2: Bogus Trademark Protection & Renewal Services

2010-06-15T08:26:00.000-07:00

If you own a U.S. trademark registration - or even if you have just filed a trademark application - you may receive an unsolicited official-looking notice from an organization with an official-sounding name like "U.S. Trademark Protection Service" that offers to "monitor" your trademark application or renew your trademark registration. These companies are not affiliated with the official U.S. Patent & Trademark Office ("PTO") where you filed your trademark application and it is unclear who owns, controls and operates these document filing companies. What is clear is that many trademark owners are confused by these notices. It is also clear that many of these companies appear to be practicing law without a license AND are providing incomplete advice. For example, the notices from these companies that I have reviewed usually fail to notify a trademark owner that it is important to file an "Affidavit of Incontestability" with the PTO between the 5th and 6th year after a trademark is first registered. Filing the Affidavit of Incontestability is optional - not mandatory - but it greatly improves and strengthens the value of your trademark registration.

Here is an excerpt from the warning notice at the PTO website:

Warning to USPTO Customers: Trademark Monitoring and Document Filing Companies

You may receive unsolicited communications from companies requesting fees for trademark related services, such as monitoring and document filing. Although solicitations from these companies frequently display customer-specific information, including USPTO serial number or registration number and owner name, companies who offer these services are not affiliated or associated with the USPTO or any other federal agency. The USPTO does not provide trademark monitoring or any similar services.

Such companies typically charge a service fee in addition to applicable USPTO fees. In many instances, applicants and registrants have mistakenly believed that the USPTO has issued these communications or that these companies are affiliated with the USPTO. Complaints about such companies or communications may be made to the Federal Trade Commission, at http://www.ftccomplaintassistant.gov/.

Here are Branfman Law Group's tips to our clients and friends: (1) Remember that the official name of the PTO is "United States Patent & Trademark Office"; (2) If you used a lawyer to file your trademark application, contact your lawyer when you receive one of these unsolicited notices; and (3) If you filed your own trademark application or want to renew your trademark registration yourself, go directly to the PTO website at www.uspto.gov and follow the instructions. We are here to help if you have any questions.

TRADEMARK WARS: What Can We Learn From a Sandwich?

2010-05-28T16:45:00.000-07:00

Don't ask us why, but we love trademarks. We love helping to create them, build and protect them. But every once in a while, someone goes just a little too far. This may be one of those cases: the company that owns the Subway® sandwich chain is trying to register the word "Footlong" as a trademark for sandwiches and restaurant services AND is sending out "cease and desist" letters to other companies that use the term "footlong" for their sandwiches.

This situation raises a whole host of issues, but one of the main ones is that it highlights the serious problems that can arise when someone – in this case SUBWAY® – picks a weak trademark and tries to corner the market with it. But what the news reports don't mention is something even more interesting that we discovered when we combed through the records of the Patent & Trademark Office ("PTO"): about a dozen other food/restaurant franchises like Domino’s, Taco Bell, Pizza Hut, KFC and Dairy Queen have all ganged up on Subway® and filed formal written Oppositions to the Subway® trademark application for “Footlong”. We don’t recall ever seeing such a concerted effort by a dozen large corporations to stop one company from registering a trademark. Although the Subway lawyers were somehow able to convince the PTO to initially allow the trademark application for "Footlong", we aren't putting any money on Subway's ability to ultimately get the trademark registered or stop anyone else from using "Footlong". More to follow as the case unfolds!

Digital Music Royalties Waiting to Be Paid - Part 1

2010-04-27T12:21:00.000-07:00

These days, there are so many various ways that musicians (recording artists), songwriters, record labels and music publishers can get paid (or not get paid - as the case may be) when recorded music is played on traditional AM/FM radio, satellite radio, Internet streaming, cable TV, etc., it can make your head spin. For example, for many years three organizations (ASCAP, BMI and SESAC) have collected royalties paid by traditional AM/FM radio stations for playing music and then distributed those royalties to the songwriters who wrote the songs and the music publishers who own the copyrights in them. But due to a long-standing tradition and legal exemption, the singers and musicians who perform on the records played on AM/FM radio stations - as well as the record labels who own the recordings - DON'T get paid any share of the royalties collected by ASCAP/BMI/SESAC from the radio stations. And to make it even more confusing, when those same songs are streamed over the Internet by the companies that own the AM/FM radio stations, everyone - including the recordings artists and record labels - DO get paid. Go figure.

Needless to say, it's a confusing situation for most recording artists, songwriter, music publishers and record labels. But as a starting point, we highly recommend that songwriters and music publishers affiliate themselves with either ASCAP, BMI or SESAC so that they can paid what they are due when the songs they write and publish get played on traditional AM/FM radio and in other public performances. We also recommend, of course, that songwriters and publishers REGISTER THEIR COPYRIGHTS with the U.S. Copyright Office.

We are also recommending that recording artists and record labels get familiar with a non-profit organization called Sound Exchange (click here) so that they can get paid when their songs are played on satellite radio such as SIRIUS/XM, Internet streaming radio stations, etc. We will have a more detailed report about Sound Exchange in an upcoming blog entry. In the meantime, please call or write if you have any questions about these kinds of issues.

Are Mardi Gras Costumes Copyrightable?

2010-03-26T13:05:00.000-07:00

U.S. copyright law protects a lot of content - everything from books and art to motion pictures, TV shows, sculpture and choreography - and lots in between. But certain things are not copyrightable: ideas, concepts, short titles and useful articles like clothing designs. But here is a recent article that explores the boundaries of the law regarding clothing designs. It addresses the question of whether those grandiose and fabulous Mardi Gras costumes way down in New Orleans are suitable (no pun intended) for copyright protection. We do not know if this issue will be tested in court or how a judge might rule if presented with the issue. But we do believe that these kinds of Mardi Gras costumes are way more than merely functional clothing designs and therefore they should be copyrightable. If that happens, however, is it just going to clog up the courts with more lawsuits when one Mardi Gras costumer designer decides that another costume design is too close to his or hers and constitutes copyright infringement? We will see.

Hollywood In Sight: "The Runaways" Film

2010-03-20T11:23:00.000-07:00

We are pleased to report that the new film entitled "The Runaways" starring Kristen Stewart, Dakota Fanning, and Michael Shannon opened nationally yesterday after having its Los Angeles red-carpet premiere Thursday March 11, 2010. Kristen Stewart and Dakota Fanning star as Joan Jett and Cherie Currie, two of the founding members of the first all-female rock and roll band "The Runaways". Michael Shannon - nominated for an Academy Award for his role in "Revolutionary Road" - co-stars as our friend and client, the legendary music impresario Kim Fowley.

So far the word on the street is that Michael Shannon almost steals the film from Stewart and Fanning - the stars of the latest "Twilight" movie. According to the L.A. Times, Shannon plays Kim with "a delicious twisted perverseness" and "infuses manic life and libido into the crazy, controlling genius in caftans". We had the pleasure of representing Kim in the negotiations with the film's producers several years ago for the rights to his story. Since we knew that the movie would be based on Cherie Currie's acidic tell-all biography and that every great story needs a villain, we anticipated that Kim's character would be portrayed as a combination of a psycho-Svengali and Fagin. Thus for us the toughest task in the negotiations with the producers of the film was to ensure contractually that the producers, writer and director did not take too much liberty with the characterization of Kim. The producers initially resisted our efforts to place limits on their right to shape the character, but this was deal-breaker for Kim and eventually we were able to strike a compromise that was acceptable to all parties. That's not to say that Michael Shannon's portrayal of Kim doesn't show him to be a tough taskmaster that wrangled a bunch of teenagers to help them achieve their dream at a time when almost anything was ok in the name of achieving success. But The Runaways rocked when women weren't supposed to do that and were a genuine sensation in that gap between the end of the 60s and the coming of the Ramones, Sex Pistols, etc. Thus Kim's characterization in the film may not be flattering by modern standards. But, that is - as they say - entertainment. More to follow when the film opens in San Diego...

For a link to a photo of Kim Fowley, Michael Shannon, and the film's director Floria Sigismondi click here.
For a movie clip where Kim introduces Cherie Curie to Joan Jett click here.

Copyrights: When Does Flattery Become Infringement?

2010-03-02T15:07:00.000-08:00

A recent article about an art world dispute raises an interesting problem that has perplexed lawyers, judges, artists, and photographers for years: how much legal protection is to be given to a photograph? The dispute the article describes pushes the boundaries of what has been and continues to be one of the most challenging and controversial issues in copyright law: when does someone go beyond permissible "copying" of an unprotectible idea and cross over into illegal copying of the "expression" of that idea? Lawyers, law students and judges have grappled with this "idea-expression dichotomy" for decades - perhaps longer. The shorthand way I have often tried to explain the idea-expression dichotomy is this: if Shakespeare had been alive at the time the play and subsequent film "West Side Story" were produced, he wouldn't have had a legal claim to stand on. Why? Because although "West Side Story" copied the idea of "Romeo and Juliet", the expressed of that idea in "West Side Story" was new and different.

In this recent case, photographer David Burdeny is accused of duplicating the look and feel of several photographs by Sze Tsung Leong and copying mulitple text descriptions of the photos. [Note: to the best of our knowledge, no law suit has been filed yet; the case currently resides in the "exchange of angry letters" mode].

In terms of photography, typically no one photographer can claim the exclusive right to the idea of taking a documentary style photo of a building or landscape, for example, the Ponto Vecchio in Florence or a pyramid in Eqypt. [To the contrary, of course, if Leong had combined a photo of the pyramid with a waterscape photo such that the pyramid appeared in the water, Burdeny would have a dead-bang loser case if he copied that expression]. Thus if Burdeny was alleged to have "copied" only one of Leong's photographs, I believe Burdeny would have a much cleaner defense. But when you take into account the combination of the number of photographs Burdeny is alleged to have copied plus the written descriptions of the photos, the case for Leong and against Burdeny gets more compelling - at the very least to the extent that a jury might be swayed to believe that Burdeny crossed the line. Frankly, the argument for infringement by Burdeny is much stronger with respect to the descriptions of the photos. Burdeny's descriptions may not be "identical" to Leong's, but they are "substantially similar" - and that's the standard for copyright infringement under U.S. law.

More to follow as the case develops.......

Questions? info@branfman.com or www.branfman.com

Here Comes 2010!

2010-01-07T15:47:00.000-08:00

Well, after two shortened work-weeks and corresponding long weekends, the world seems to be slowly getting back to the business at hand. Us too. Having made it through 2009 with relatively few bruises and quite a few bright moments along the way, we are cautiously optimistic about the new year. The first task we'll tackle will be to offer up some predictions about coming developments in the world of intellectual property and entertainment law. Then we will roll out several new services we think our clients will be excited about. In the meantime, if you have any topics in the IP or entertainment law area you would like to hear about, please let us know and we'll do our best to find something interesting to say about them. Onward.

Larry Flynt: Trademark Guru?

2009-12-10T07:04:00.000-08:00

In a case that is both interesting and humorous on so many levels, Larry Flynt - the publisher of Hustler magazine - is suing two of his nephews for trademark infringement. The trial started earlier this week in U.S. District Court in Los Angeles. The nephews - Jimmy Jr. and Dustin Flynt - used to work for their uncle, but he fired them in 2007 for being "unproductive". In an effort to show he wasn't an altogether bad fellow, Uncle Larry gave each of the nephews $100,000 as severance money. The nephews then used the money to start an adult film company using the brand name FLYNT that competes with Hustler's adult film company. In what would otherwise be a fairly typical trademark infringement case, Uncle Larry filed suit to stop the nephews from using his name and arguably confusing the public into thinking the nephews' company is somehow associated with Larry Flynt and Hustler. This aspect of the case highlights one of the unique facets of trademark law: trademark laws are designed not just to protect the trademark owner; they are also supposed to protect the public from being confused as to the source of the goods or services sold under the trademark.

Uncle Larry hired an expert to conduct a survey and the survey showed that a majority of consumers presented with images of the nephews' films with the FLYNT name on them associated the nephews' FLYNT films with Uncle Larry. If the jury is persuaded by that evidence, that is going to help Uncle Larry's case. So will the fact that the nephews used the following phrase in their promotional flyers: "You know the name, you know the game". That might convince the jury that the nephews were trying to trade on their uncle's fame. The nephews' lawyer has countered with a good - if slightly tongue-in-cheek - response: consumers of pornographic films are "careful and discerning" when it comes to choosing the films they watch or buy and carefully study the product before making a purchase. Therefore, there is not much of a chance that consumers will be confused or led to think that the nephews' FLYNT films come from the same source as Hustler's films. Although many people find jury duty boring, we suspect that the eight jurors in this case will be able to pay attention during the trial. After all, as Uncle Larry has said in criticizing the films produced by his nephews: "I think there is a thin line. As a society we've come to accept what I like to refer to as 'vanilla sex'. But if you get too trashy, people get uncomfortable". We can hardly think of anyone these days who would be able to speak more authoritatively than the elder Flynt on this subject. Filtering out the subject matter for the moment, from a pure trademark perspective we believe Uncle Larry has a compelling case. More to follow as the trial is scheduled to end next week.

Grammy Nominations - 2010

2009-12-03T10:30:00.000-08:00

We are pleased to report that our good friend and client Steve Vaus - professionally known as Buck Howdy - has just been nominated for two (count 'em - two!) Grammy nominations. The nominations were announced last night. The first nomination is for Buck Howdy's "Pete Seeger Tribute - Ageless Kids' Songs" in the Best Musical Album for Children category. The second nomination is for Buck's "Aaaaah! Spookey, Scary Stories & Songs" in the Best Spoken Word Album for Children category. Some artists get multiple nominations for the same song or same album in multiple categories. But it is pretty rare for one artist to get nominated for two separate albums in the same year. Congratulations to Steve!

Copyrights: Online Copyright Application Tips

2009-11-27T11:23:00.000-08:00

The U.S. Copyright Office ("USCO") may have implemented an online copyright application system a little more than a year ago, but there are still some serious bugs in the system that need to be worked out. Here are a few important tips to keep in mind when filing a copyright application online: print out and keep hard copies of (1) your copyright application; (2) the application filing receipt you receive by email from USCO after you file your application; (3) the fee payment receipt you receive from USCO; and the deposit specimen receipt you receive from USCO. Keep all the hard copies in a safe and easy-to-locate place until you receive your actual registration certificate. Why? Because it will probably take USCO anywhere from 12-18 months to process your application and issue the actual Copyright Registration Certificate. In the meantime you may need your complete copyright application package if you need to prove to anyone - including a court - when you filed your application and that you filed everything properly. Along those lines, be sure to keep an exact copy of the work (screenplay, novel, computer program, illustrations, etc.) you submitted to USCO with your copyright application. The reason: since authors and creators often develop different versions of the original work, it is vitally important to be able to prove exactly what version of your work you submitted with your copyright application.

Report From the Intellectual Property Front Lines

2009-11-15T20:37:00.000-08:00

Having just returned from the three-day annual Intellectual Property Law Institute sponsored by the State Bar of California, we are still processing what we heard. As you might imagine, the odd combination of the ongoing growth of technology and the recession continues to create new intellectual property legal issues that simply did not exist ten years ago. We plan to provide more in-depth reports about the IP Institute in the days to come, but here is a short list of some of this year's highlights:
* Trademark and domain name disputes are continuing to explode and the landscape will only get more challenging for brand owners as the number and variety of top level domain names (.com, .net, .org, etc.) expand almost geometrically;
* Although the U.S. Copyright Office's efforts to implement an online copyright registration system have been well-intentioned, the Copyright Office is seriously underfunded and the online registration system is slower than the previous hard paper-only procedure;
* As the cost and difficulty of enforcing patents increases, so does the importance and value of using trademarks, copyrights and trade secrets to protect and exploit your brands, content and inventions; and
* In what may be more than just a nod to the explosion of social media/networking, Facebook's former privacy chief who is running for California Attorney General delivered one of the Institute's keynote addresses.

More to follow in the days to come; stay tuned.

Endorsements, Bloggers & The Federal Trade Commission: New Rules

2009-10-23T07:26:00.000-07:00

The U.S. Federal Trade Commission ("FTC") has just released new rules and guidelines that will govern the disclosures advertisers must make about endorsements contained in their ads and any payments that are made by the advertiser for the endorsement. The rules include bloggers and place a greater duty on celebrity endorsers to be truthful about their connection to products they endorse. Here is a brief FTC summary of the new guidelines. Our initial thoughts about the new rules: be upfront and disclose who is really behind the advertisement, blog, etc. This is going to be interesting and challenging. More to follow.

Copyrights & Music:Does a Cell Phone Ringing in Public Violate Copyright Law?

2009-10-15T17:37:00.000-07:00

In an important ruling for the millions of cell phone users whose ringtones play in public - and for the cell phone companies that provide the ring tones - a federal court in New York just ruled that merely playing the ring tone in public for personal (not commercial) purposes is not a "public performance" that would trigger a royalty payment to the copyright owner of the song the ring tone is based on. One of the keys to the decision was that it is limited to personal uses of ringtones "without any purpose of direct or indirect commercial advantage". Thus to the extent someone might be interested in playing ringtones in public for commercial purposes - let's say a "Battle of the Ringtones" contest - this ruling would not apply. Beyond that, one of the interesting tidbits that came out of the court ruling is confirmation of the amount of money the cell phone companies pay in royalties for reproducing the song to begin with: 24 cents. Here is a summary of the court opinion and for those who are really ambitious, here is a copy of the court opinion itself.

A New Kind of Musical Rhapsody: Brian Wilson Set to Complete Some of Gershwin's Unfinished Works

2009-10-08T22:22:00.001-07:00

The L.A. Times reported today that Brian Wilson - the legendary songwriter and co-founder of The Beach Boys - has been granted permission to complete some of the unfinished musical works that George Gershwin left behind when he died prematurely at age 38 about seventy years ago. The newspaper story goes into some detail to explain how this came about after all this time and why Gershwin and Wilson may not be the strange musical bedfellows they appear to be at first. This kind of extraordinary creative endeavor holds great promise. We will look forward to the results with great anticipation. And....here is a link to one of our favorite Brian Wilson/Beach Boys compositions of all time which wasn't necessarily a hit: "The Warmth of the Sun". [Brian W. reportedly wrote it the day of the JFK assassination].

Veoh Video Website Defeats Copyright Infringement Lawsuit by Major Studios

2009-09-22T09:55:00.000-07:00

In a decision that portends big problems for Viacom's lawsuit against Google's YouTube website, a federal court decided last week that Veoh's video posting website is not guilty of copyright infringement. This case is not only important because of the pending Viacom vs. Google lawsuit, but because it details WHY Veoh was not guilty of copyright infringement even though the website does post copyrighted material without permission. Although this Court's decision is not binding on other courts around the country, the decision essentially outlines possible ground rules for a video-sharing website business model that is legal. It is worth comparing and contrasting how Veoh operates as compared to Napster and Grokster and other music-sharing websites that have been declared illegal. It will also be interesting to compare and contrast Veoh's service to YouTube's to see how they line up and how they differ.

Copyrights & Music: Ellen DeGeneres Rolls Into Court

2009-09-14T07:45:00.000-07:00

Last week - at virtually the same time she was named the new judge on "American Idol" to replace Paul Abdul - Ellen DeGeneres' production company was sued by several major record labels for regularly and routinely using music on her daytime TV show without a license. The lawsuit alleges that about 1,000 songs have been used without permission. We don't watch the DeGeneres show regularly, but we understand that she's a music lover and has a segment each show where she dances to a popular song selected by a DJ. But that's a use that requires a license and according to the lawsuit when the show's producers were advised the program needs a license, their response was "We don't roll that way". Perhaps not. But since the U.S. Copyright Act allows for damages of up to $150,000 per work infringed, the show could be exposed to up to $150 million in damages. We don't really think the production company is going to end up paying anywhere near that. But they probably will pay something and probably more than it would have cost them if they had gotten the licenses to begin with. This, of course, raises the age-old question: is it better to ask for permission or forgiveness?

When Is The Best Time To File A Copyright Application?

2009-08-26T12:54:00.001-07:00

Recently we were asked whether an author of a book-in-progress should file a copyright application to protect the book now or wait until the book is finished. In this situation it sounded like there isn't a big need to file the copyright application now because it is not a situation where there is a high likelihood of pre-publication piracy as there often is with sound recordings by popular recording artists or major motion pictures. If you are concerned about pre-publication piracy, then the scale tips in favor of registering the copyright in the unpublished version or using the Copyright Office’s “pre-registration” system. (Check the Copyright Office website for more info about the “pre-registration” procedure). On the other hand, given the relatively low filing fee for a copyright application ($35 if filed online), it might make the author “feel” better to know that the unpublished version has been registered for copyright purposes. But…….registering the preliminary unpublished version is no substitute for registering the copyright in the finished version when it is available. Thus doing it twice will increase the costs. But given the relatively low cost of the filing fee, that may not be much of an impediment. Another issue to consider in this kind of situation is whether there is enough original authorship in the work now to support a copyright application. If all you have is a one paragraph summary of what the book is going to be or just an outline, it is not clear that the Copyright Office would accept the copyright application. What is enough original authorship for copyright registration purposes is a difficult question to answer with any precision and is probably worth a blog entry all of its own.

Dueling Golf Ball Patents: Who Knew Golf Balls Could Be Worth All the Trouble?

2009-08-17T18:13:00.000-07:00

The golf ball wars between the makers of Titleist and Callaway golf balls continue. A federal court judge recently lifted an injunction which had prohibited the manufacturer of the Titlteist Pro V1 from selling the balls. Here is an article that describes the latest in the ongoing battle between the two golf kings.

Trademarks & The Name Game: Why Change?

2009-08-12T21:49:00.000-07:00

Lately we seem to be hearing more about "branding", "maintaining your brand", "creating your own brand", etc. etc. There once was a TV show called "Fame Is the Name of the Game". In business it's really "Fame is the Game of the Name". So why would a company with a famous 90 year old brand like "Radio Shack" change its name to "The Shack"? Does it make sense to do that? Here is an interesting article that summarizes the recent change from "Radio Shack" to "The Shack" along with some other famous name changes such as Galvin Manufacturing Corp. to Motorola Inc. and Matsushita Electric Industrial Co. to Panasonic Corp. And here is a well-written critique of Radio Shack's decision to change its name.

The Value of a Name: Pirate Bay

2009-08-04T06:55:00.000-07:00

Logic tells us that a McDonalds franchise location probably wouldn't be worth as much without the ability to use the McDonalds name, the golden arches and the familiar McDonalds color scheme. Those unique identifiers - trademarks - help make each McDonalds location worth a lot more than a restaurant in the same spot that didn't have those familiar icons. The same can be said about many familiar franchises and brands. But how do we place a value on what a name and trademarks are worth? Here is a recent story about the efforts by a Swedish internet cafe operator to buy an online file-sharing website called Pirate Bay for almost $8 million - even though the current operators of the website were criminally convicted in April and were ordered to spend a year in prison and pay almost $4 million in damages and the Motion Picture Association of America has requested that a court in Sweden stop the website from making available unauthorized copies of movies, TV shows, videogames, etc. Why is Pirate Bay worth $8 million plus whatever it will cost to operate it going forward? Apparently because the new buyer believes it can convert about 10% of Pirate Bay's current 20 million subscribers into legit customers who will pay for downloads.

It should be interesting to see how this works out.

The Problem With Net Profits Deals: Ask the Tolkien Heirs

2009-07-25T15:29:00.001-07:00

Whenever we have clients consult us about a movie, TV, book or other deal where they are supposed to be paid for their work on a net profits basis, our red flags start going up. Here's an example of why that happens to us. As you will see, even after all this time and three hugely successful films, the heirs of "Lord of the Rings" author J.R.R. Tolkien are yet to receive any of the net profits they are entitled to.

COMIC-CON UPDATE: "Comic Book Law School"

2009-07-24T07:05:00.000-07:00

Like the "Attack of the Killer Tomatoes" that took over the countryside back in the 80's, Comic-Con has arrived once again in San Diego and is taking over the town for the next few days. What started as a small little geek-fest some 20 years ago has become a cultural epicenter for all kinds of entertainment, science fiction, movies, music, and - of course - comic books. We are pleased to have been invited again to speak at Comic-Con on current legal issues relevant to the Comic-Con crowd. Here is the entry from the Comic-Con programming guide about the panel discussion we will be participating in today:

3:30-4:30 Comic Book Law School: Hot Topics— Move over Whoopie and Barbara! It's time for these savvy legal minds to share their views on the ever-evolving legal world, spotlighting cutting-edge, evolving issues being faced by the creators, publishers and distributors of creative works. An all-star panel of attorneys—David Branfman, Alexander Harwin, and David Lizerbram, with moderator Michael Lovitz—shed light on important issues facing individuals and companies alike. Topics will include the new online copyright application process, preregistration of copyrights, fair use, piracy, and the growing popularity of the CopyLeft movement. (Please note: The Comic Book Law School seminars are designed to provide relevant information and practice tips to practicing attorneys, as well as practical tips to creators and other professionals who may wish to attend. This program is approved for one credit of California MCLE.) Room 10

For any of you who will be at Comic-Con today, please stop by and let us know what you think about all of this.

Internet Radio, Royalties, Musicians, and Record Labels:

2009-07-10T06:37:00.000-07:00

I was raised on radio. By that I mean I can barely remember a time when I didn't listen to music on the radio. The idea of hearing something new I've never heard before - along with something I loved a long time ago that I haven't heard in a while - has been part of the soundtrack of my life for a long time. But somewhere along the way - I don't know exactly how or when it happened - I stopped listening to music on the radio at work. At least when it comes to old-fashioned over-the-air broadcast radio, that is. In fact, I still listen to music on the radio all day at work - except that now it's Internet streaming radio that I play through my computer speakers. With a few keystrokes on my keyboard, I can change the station without hardly moving. But behind that simple act there is a lot of money to be made and lost by Internet radio stations, record labels and recording artists. Here is an article that describes a new deal that has been cut to dole out some of the money that is being made. This deal means that Internet radio is going to be around for at least a while longer.

Copyrights & Music: ASCAP Files Lawsuit Over Ringtones in Public

2009-07-03T10:41:00.000-07:00

Should cellphone companies have to pay a public performance royalty each time a music ringtone plays in public? ASCAP (the American Society of Composers, Authors and Publishers) thinks so and has filed a lawsuit against AT&T to prove the point. Here is a brief article that discusses this issue.

Copyrights: Copyright Office Application Backlog

2009-06-28T12:52:00.000-07:00

The U.S. Patent & Trademark Office ("PTO") implemented an online trademark application filing system years ago. But it took the U.S. Copyright Office until last July to develop and implement an online copyright application system. That was the good news. But while the new Copyright Office system was supposed to make things simpler and quicker, it has had the exact opposite effect. Instead of taking 6 to 8 months for the Copyright Office to process a copyright application and issue a copyright registration certificate, it is now taking upwards of 18 months - three times as long as it used to. Here is an interesting article about the problem.

There are, however, two bones we have to pick with the Washington Post article. First, the article implies that the copyright owner shouldn't perform or display their work until the copyright registration is officially registered with the Copyright Office. We think that is an overly restrictive approach. Why? Because once the copyright registration is issued by the Copyright Office, it will be given an effective date of registration retroactive to the date the copyright application was filed. Additionally, you can put the world on notice that you consider your work to be protected by copyright law by placing a proper copyright notice on your work. For example: Copyright 2009 David P. Branfman.

Second, the Washington Post article suggests that the ONLY way to stop someone from copying your work is to file a copyright application. That's not entirely accurate. What is important to understand is that the copyright owner can not sue someone for copyright infringement until the copyright application for the work in question has been filed. [Some courts require the actual registration certificate in order to maintain a copyright infringement lawsuit, but more and more courts are allowing a lawsuit to be filed as long as the copyright application has at least been filed - even if the registration certificate hasn't been actually issued at the time the lawsuit is filed. Those courts then require the copyright registration certificate before a copyright infringement case can go to trial].

Copyrights: Is The "Catcher In The Rye" Sequel Going To Be Allowed?

2009-06-18T21:26:00.001-07:00

"Catcher In The Rye" is one of the most popular novels of the last sixty years, but it is shrouded in mystery because "Catcher" author J.D. Salinger has become one of the most famous literary recluses since the publication of the book. Now someone totally unconnected to Salinger has decided to publish a "sequel" to "Catcher In The Rye" without Salinger's approval. The resulting dispute is now in court. Here is an interesting article about the lawsuit. Why is this important? Because the court will have to decide whether a pure literary character like "Catcher In The Rye" protagonist Holden Caufield is subject to copyright protection. If so, publication of the sequel might be stopped unless the author can somehow get Salinger's approval. Whether or not a literary character like Caulfield is subject to copyright protection will involve an analysis of the "Fair Use" defense to claims of copyright infringement. For a fascinating overview of the "Fair Use" doctrine, see our February 1, 2009 blog entry.

TRADEMARK OWNERS NEED TO PROTECT THEIR TRADEMARKS FROM REGISTRATION AS USERNAMES ON FACEBOOK

2009-06-12T14:35:00.000-07:00

Facebook has just announced that as of 12:01 AM (Eastern) this Saturday, June 13th, it is changing the way it creates and registers user names and their related URLs so that instead of a somewhat random number like “id=592952074” that is associated with a Facebook member’s user name, Facebook will be modifying the format to allow a much cleaner URL that can include the user’s real name or company name. For example, the new user name will appear as "facebook.com/branfmanlawgroup." Facebook claims that this will allow people to have an easy-to-remember way to find its members.

Sounds ok?

But here’s where it gets interesting and dangerous: Facebook is going to allow its members to register these new user names and URLs on a first-come, first-served basis and will allow the user name to include the user’s name OR someone else’s name or trademark – including yours. Why Facebook just announced this policy this week and is implementing it so quickly without giving trademark owners time to analyze and address the situation is something of a mystery.

We believe this means that trademark owners must immediately register their trademarks with Facebook as a way of stopping someone else from using your trademark as a Facebook username. Here is a link to Facebook’s Form for Preventing Registration of a Username:

It’s free!

Trademark owners must provide a trademark registration number. There is no mention by Facebook of how it will handle a trademark that is represented by a pending trademark application as opposed to an actual issued registration, but we are advising our clients to register marks that are the subject of a pending application by entering the application serial number where the registration number is asked for or to enter into their Fictitious Business Name Statement number if they do not have a pending application. We can all sort out later how Facebook is going to deal with this issue. Presumably Facebook is going to block the use of that trademark as a username by any of its members once the form has been completed and submitted.

If a company misses tonight’s deadline, Facebook will feature a grievance procedure allowing brand owners to report that someone's username infringes on their intellectual property or publicity rights. How that will work in the real world is anybody’s guess.

The new Facebook username policy is, of course, a two-sided coin: on the one hand trademark owners will want to register/protect their trademarks with Facebook today in order to protect their brands from cybersquatting by unauthorized third parties; on the other hand trademark owners may want to set up their own Facebook accounts in order to take advantage of owning some cyber real estate to promote their products and services on what is currently one of the most popular social networking websites around.

There is more that can be said about all of this, but given the shortness of time we are sending out this brief announcement now. We recommend that you take care of this now by either handling it yourself or assigning it to someone in your organization. If you would prefer that we handle it for you, please let me know. If you are already a client of ours, we obviously have a list of all of your trademark registrations and applications handy and can complete and submit the form fairly quickly and easily for you.

BRATZ Fire Back At Mattel

2009-06-10T07:19:00.000-07:00

Here is an article about the latest shot fired in the ongoing dispute between Mattel Inc. and BRATZ-maker MGA over whether the BRATZ were stolen from the designs for Mattel's "Barbie" franchise. Last year Mattel won a judgment in court that established that BRATZ were based on designs created by a Mattel employee before he went to work for MGA. The court not only awarded money damages to Mattel, but it also eventually ordered MGA to start turning over the BRATZ inventory, trademarks, copyrights, etc. to Mattel. Now MGA has filed an appeal to the 9th Circuit Court of Appeals that argues that the judge has gone too far in transferring the BRATZ assets to Mattel. Why is this important? Aside from the significance of the monetary judgment awarded to Mattel, this case highlights how the courts have the power to transfer assets like inventory, trademarks, copyrights and patents when there has been an infringement. It also highlights how important it is to be absolutely clear with new employees that they are not bringing any of their former employer's intellectual property with them when they start their new job.

Success Story #1

2009-05-22T12:33:00.001-07:00

One of the reasons we like what we do so much is that we have lots of fun, interesting and world-class clients. They range from sales training companies to musicians to hot-rod aftermarket specialists, clothing companies, record labels, surf wax manufacturers, direct mail and response experts and all manner of film, video and Internet-based companies. One of our most fun clients is Opper Sports, one of the world's leading surf documentarians which is run by multiple Emmy-award winner Ira Opper who has recently built an easy-to-use website that allows for entire Opper Sports library of surfing-related films and tv shows to be instantly downloaded . Here is an article about one of Opper Sports most-recent successes. We have helped Opper Sports over the years with music licensing questions, domain name disputes and general competitive strategies.

Copyrights and the Radio

2009-05-11T20:44:00.000-07:00

It's one thing to be the songwriter of a hit song that gets tons of radio airplay. But it's another thing if you're the singer and/or the band that performs the song but didn't write it. This article explains why. In a nutshell: due to a long-standing policy in the United States (but not Europe, for example), only songwriters and music publishers get to share in the royalties that are paid by radio stations when songs are played on the radio. The band and the singer doesn't. Musicians have been trying to get the law changed for years, but so far haven't had much luck. That may change if a piece of legislation in Congress passes.

The Problems With Branding Using Geographic Terms

2009-05-01T16:35:00.000-07:00

The City of Hollister, California is quasi-famous for being the place that inspired one of Marlon Brando's most iconic movie performances in the 1953's "The Wild One". But now it's embroiled in a legal battle with clothing manufacturer Abercrombie & Fitch because A&F started a clothing line called Hollister Co. about 10 years ago and is now trying to stop anyone anyone who uses "Hollister" for clothing - including people and businesses in Hollister, CA. This article describes the dispute in more detail.

Why is this important? Because geographic terms are very difficult - and sometimes impossible - to protect as a trademark. But that doesn't stop people from trying. We typically advise our clients to stay away from using geographic terms as trademarks for this exact reason. Meanwhile, as the dispute between Abercrombie & Fitch and the citizens of Hollister continues, it reminds us of the famous exchange between Brando and another character in the film when Brando's Johnny is asked: "What are you rebelling against?". Johnny's response: "Whadaya got?".

Bogus Trademark Monitoring & Document Filing Companies

2009-04-22T06:54:00.000-07:00

If you own a U.S. trademark registration - or even if you have just filed a trademark application - you may receive an unsolicited official-looking notice from an organization with an official-sounding name like "U.S. Trademark Protection Service" that offers to "monitor" your trademark application or renew your trademark registration. These companies are not affiliated with the official U.S. Patent & Trademark Office ("PTO") where you filed your trademark application and it is unclear who owns, controls and operates these document filing companies. What is clear is that many trademark owners are confused by these notices. It is also clear that many of these companies appear to be practicing law without a license AND are providing incomplete advice. For example, the notices from these companies that I have reviewed usually fail to let a trademark owner know that it is important to file an "Affidavit of Incontestability" with the PTO between the 5th and 6th year after a trademark is first registered. Filing the Affidavit of Incontestability is optional - not mandatory - but it improves and strengthens the value of your trademark registration.

Here is an excerpt from the warning notice at the U.S. Patent & Trademark Office website:

Warning to USPTO Customers: Trademark Monitoring and Document Filing Companies

Our tips: (1) Remember that the official name of the PTO is "United States Patent & Trademark Office"; (2) If you used a lawyer to file your trademark application, contact your lawyer when you receive one of these unsolicited notices; and (3) If you filed your own trademark application or want to renew your trademark registration yourself, go directly to the PTO website at www.uspto.gov and follow the instructions.

Domain Name Tips #1 & #2

2009-04-10T09:39:00.000-07:00

As the importance of the Internet for business grows, so grows the need to utilize smart strategies for both selecting and maintaining your domain names. Here are the first two of ten tips we've learned that you might find useful in protecting what we refer to as "Internet real estate":

1. Shop Around For Your Domain Name Registrar: In the old days, Network Solutions, Inc. ("NSI") had a virtual lock on the process of registering domain names. That's because NSI was the only official Domain Name Registrar. That’s no longer the case and lots of competitors have popped up; as a result the cost of registering a domain name has dropped. Shop around. We like GODADDY.COM where you can register a domain name for as little as about $10 a year per domain name. Ask around and see which Registrar your friends and colleagues like.

2. Make sure your business name and trademarks are registered: Registering your domain name is not the same as registering your company name or product name as a trademark, so registering your company/product name(s) as trademarks is important too. Trademarks can be registered with the State you operate in, the U.S. Patent & Trademark Office (“PTO”) and internationally. The process of registering a trademark could be the subject of a full-length article, but the USPTO website is a good place to get some basic info.

More tips will follow in subsequent postings.

Quote of the Day

2009-03-27T14:34:00.000-07:00

"Any fool can make things bigger, more complex, and more violent. It takes a touch of genius - and a lot of courage - to move in the opposite direction." Albert Einstein.
We find ourselves constantly trying to walk that fine line between simplicity and complexity in helping our clients structure their business dealings in general and their contracts in particular. Often times it is a real tug of war. We came across Einstein's quote today and thought it neatly addressed the challenge.

Ray Charles, Jerry Lee Lewis & Fats Domino

2009-03-24T22:14:00.000-07:00

The video quality may not be that great (click on the HQ button if you can), but try out this little video clip.
Why is this important? Because great music is timeless, inspirational and transcendent and I defy you not to feel a little bit better after having watched this. By the way, that's Ron Wood of the Stones in the backup band.

Music Biz Update: Report From SXSW

2009-03-17T23:44:00.000-07:00

It's March, so that must mean it's time for one of the most interesting and happening music festivals and conferences in the country: SXSW (South by Southwest) in Austin, Texas. Click here for a link to a report about SXSW which is set to open tomorrow.
Why is this important? The economy may be in a recession, CD sales may be down, but the world still needs and wants new music. Even in a down economy, there is still great music being made.

The REAL "Free" Credit Report

2009-03-13T11:30:00.000-07:00

Once again I am digressing from my goal of writing about interesting intellectual property and entertainment law matters, but this item seems rather important: it turns out that the "free" credit reports advertised in all those cute TV commercials with the guy working in the fish & chips fast-food joint and guys driving around in their old beater car aren't really free after all. That's because you have to buy another product like an annual credit reporting service in order to get the "free" credit report. In response, the U.S. government - in conjunction with the three major credit reporting agencies - have created a website that does in fact offer a truly free credit report without any strings attached.
Why is this important? It's important because these days in particular knowledge is power and knowledge about the state of your credit is particularly powerful.
P.S.: On a lighter note - don't forgot to check out "Lydia The Tattooed Lady" in my March 10, 2009 blog entry.

Lydia The Tattooed Lady

2009-03-10T20:45:00.001-07:00

Today I thought we would take a short break from serious legal happenings and take a moment to revisit a great moment in film and music histor - click here: Groucho goes crazy!!!

[Hint: It's Groucho being very Groucho and even though it's in black & white I think it will lighten your load even for just a few minutes].

COPYRIGHTS: GOOGLE GOBBLES BOOKS

2009-03-07T08:52:00.000-08:00

Here is a link to a recent interesting article about Google's worldwide efforts to reach authors and publishers of books regarding a recent lawsuit settlement deal.

Why is this important? Because Google has settled a class action lawsuit filed against it by a group of authors and publishers who believed that Google's plan to scan and offer for viewing millions of books without the permission of the authors and published violated their copyrights. As part of the settlement, Google will spend $125 million to create a system that will offer copyright owners a chance to opt out of Google's system or receive payment. Thus Google's plan and this settlement could potentially affect millions of authors and publishers worldwide.

THE RECORD INDUSTRY IS DEALT A BLOW IN ITS ONGOING EFFORTS TO SUE ITS CUSTOMERS FOR ILLEGAL FILE SHARING:

2009-02-15T12:52:00.000-08:00

You may recall that back in 2007 a jury in Minnesota determined that a woman named Jammie Thomas had violated the copyright law by offering to share 24 songs on the Kazaa file sharing service and socked Ms. Thomas with $220,000 in damages. The damages were awarded to the record companies whose songs had been improperly offered up on Kazaa. That jury award caused quite a stir at the time because of the size of the damages assessed – especially because the retail value of the songs was about $54. Later - in a rare and interesting twist – the Judge who presided over the trial threw out the damages award and granted Ms. Thomas a new trial. Why? Because the Judge determined that the record labels had to prove that some third parties had actually downloaded the copyrighted songs and that it wasn’t enough that Ms. Thomas had simply made the songs available for downloading. The Judge overturned the verdict because he didn’t instruct the jury on that distinction at the trial.

In the latest skirmish in the case, the record labels asked the Judge to reconsider his decisions to overturn the damages award and order a new trial. But the Judge refused and reiterated his belief that in order for the record labels to prevail they will have to show that Ms. Thomas did more than just make the copyrighted songs available for downloading. And thus the case will be headed back to court for a new trial in front of a new jury – unless the record labels decide to drop the case. That’s a possibility because last year the record labels publicly announced that they were stopping the filing of lawsuits against individual illegal file sharers and instead were going to focus on working with Internet Service Providers (ISPS) to stop illegal file sharing.

Why is this important?

It’s important because for several years the record labels and their trade association the Recording Industry Association of America (RIAA) used the $220,000 damages award against Jammie Thomas as a tool to scare people who were sharing files illegally. That was, of course, their prerogative. But if the damages award was made without a proper legal foundation, it should not stand. And if the record labels choose not to pursue a new trial against Ms. Thomas, that too will signal that the era of mass suits against end-users – at least as far as music is concerned – may be over.

DID YOU HEAR THE ONE ABOUT THE DOG THAT ALMOST BIT THE ADVERTISING AGENCY?

2009-02-11T16:52:00.000-08:00

Remember Taco Bell’s “Yo quiero Taco Bell” ads from the late 90’s? It turns out that the idea of using a Chihuahua to help sell Taco Bell tacos etc. was originated by a Michigan-based marketing firm (Wrench LLC) that had originally pitched Taco Bell on the idea. But Taco Bell and Wrench never struck a deal and later Taco Bell started working with the well-known advertising agency TBWA Chiat/Day, Inc. on an ad campaign that ended up becoming the “Yo quiero Taco Bell” ad campaign.

Wrench subsequently sued Taco Bell and was awarded $42-million for copyright infringement and breach of contract. That in and of itself was something of a remarkable result not only because of the amount of the damages but because Taco Bell claimed that the idea Wrench had presented – using a “Psycho Chihuahua” dog character – had nothing to do with the “Yo quiero Taco Bell” dog character. Wrench nevertheless prevailed.

Then Taco Bell turned around and sued TBWA Chiat/Day, Inc. to cover the damages award on an indemnification theory. In other words, Taco Bell claimed it was the ad agency’s fault. But in a decision last month, the 9th Circuit Court of Appeals let the ad agency off the hook because TBWA Chiat/Day, Inc. wasn’t a party to the implied contract between Wrench and Taco Bell and because the agency wasn’t aware of Wrench’s “Psycho Chihuahua” character at the time it got involved. So..unless Taco Bell can prevail on appeal, it looks like it’s going to have to sell quite a few more tacos and enchiladas to cover the $42 million in damages.

For a link to one of the original Taco Bell ads, try
http://www.youtube.com/watch?v=M8sZ1DWsAHE

COPYRIGHTS: "A FAIR(Y) USE TALE"

2009-02-01T21:15:00.000-08:00

Copyright law protects content such as books, songs, motion pictures, tv shows, plays, photographs, illustrations, paintings, sculptures, computer programs, etc. etc. One major exception to the rights owned by the copyright owner is the "Fair Use" doctrine. The Fair Use doctrine states that in certain limited circumstances that which would otherwise be considered an illegal copyright infringement - (copying a copyrighted work without permission) - is permissible. These limited circumstances include purposes such as criticism, news reporting, teaching and parody. Here is a link to a very clever 10 minute animated film which uses excerpts from many Disney films to illustrate some basic copyright principles and the Fair Use doctrine.
Although we don't necessarily agree with some of the arguments made by the filmmaker, we still believe this is a very entertaining and valuable introduction to copyright law and the Fair Use doctrine. [More about what we don't agree with in this film in our next blog entry].

Great Googly Moogly: Two Books About Google Reviewed

2009-01-27T14:35:00.000-08:00

Two books that attempt to examine the inner-workings of Google and what Google means for our society have been recently published (Planet Google and What Would Google Do?). Here is a link to an L.A. Times review of the books written by Matthew Shaer.
Why is this important? In a relatively short period of time, Google has become not only the ubiquitous search engine that has virtually superseded all of its predecessors and competitors, it has also become a major advertising medium as well as a communications device (email, social networking and YouTube). How did all of that spawn so quickly from a business founded in a college dorm room and more importantly, what does the future of Google mean for how we conduct our businesses and our personal lives? These two books help to explore the answers to these questions. The L.A. Times book review can help you decide which of the two books you want to invest your time in if you don't want to read both.

Inauguration Day Thoughts

2009-01-20T12:48:00.000-08:00

We know this is supposed to be a blog about intellectual property and entertainment law. And it certainly will be going forward. But today is such a historic day that we did not think we could let is pass without a few comments.

Without showing our age too quickly, let us just say that we have been watching U.S. elections and inaugurations with great interest since JFK’s election in 1960 and inauguration in 1961. This is the first inauguration I can remember, however, which I truly regret not attending in person – windchill factor and all. The sights, sounds and enthusiasm of the millions of people on the streets of Washington, D.C. these last several days has been inspiring at a time when we truly need inspiration. As the historian Doris Kearns Goodwin said recently, great change in America happens when a substantial number of people feel connected to the government and the American system rather than disconnected and inward-looking. She speculated that the number of people who have enthusiastically shown up in Washington to watch and participate in this transfer of power signals that kind of change in the mood of the American people. We submit that this last election was proof enough of that.

The question now becomes whether President Obama can marshal the expertise, dedication and energy that is necessary to fix what ails us as a country. There is no need for us to list the problems we are now facing – they have been discussed in print, on TV and radio, and in living rooms and bars across this country for months.
We believe there is little doubt that the new President is smart and dedicated and that he is in the process of assembling the kind of team that is necessary to help correct the problems we are currently facing. But will it work? No one knows for sure. But we are cautiously optimistic. We recall the speech JFK gave in May 1961 when he said that we would land a man on the moon and land him safely back on earth within 10 years. Everyone thought he had rocks in his head. But we did it because we applied ourselves to the task at hand. We think that is a good example of the Herculean effort that is now required. And just like we did not land a man on the moon overnight, we probably will not fight our way out of our current economic turmoil overnight. But we take some measure of comfort in knowing that we have new leadership that is genuinely dedicated to trying and has the skill and talent to make it happen if we all do our parts and keep our wits about us. To paraphrase what one of our clients said at lunch last week: “I didn’t vote for Obama and I have some questions about his economic policies. But anyone who wishes him ill and doesn’t want him to succeed doesn’t have the best interests of America at heart”. We could not agree more.

WHAT ARE INTELLECTUAL PROPERTY AND ENTERTAINMENT LAW?

2009-01-16T10:23:00.001-08:00

It occurred to us that a good way to start the new year would be to provide a brief overview of intellectual property and entertainment law.

Intellectual property law has been described as the law pertaining to products of the intellect such as inventions (patents), creative content (copyrights), brand names (trademarks), and secret formulas and processes (trade secrets). A patent is a grant made by a government that confers upon the creator or owner of an invention the sole right to make, use, and sell that invention for a set period of time. There are three main types of patents: utility, design and plant. A copyright is the legal right to control the duplication, distribution display, performance and adaptation of an "original work of authorship" such as a song, book, screenplay, poster, t-shirt design, work of art or computer program. A trademark is a word or words, logo, sound, smell, color or product configuration – or any combination of them – that identifies and distinguishes one product or service from another. Examples of trademarks include EXXON, KODAK, YAHOO, GOOGLE, the Nike “swoosh” design, the color and shape of the Perrier water bottle, and the sound of the Yahoo yodel. A trade secret is a formula, practice, process, design, or compilation of information which is not generally known and which is subject to reasonable efforts to keep it secret and which provides the trade secret owner with an economic advantage over competitors. Examples of trade secrets are secret customer lists, the formula for Coca-Cola and KFC’s 11 secret herbs and spices.

Entertainment law is the law as it applies to everything from music to television to film to theatre to fine arts . It requires a combined knowledge of the entertainment business, contracts and intellectual property. It can involve everything from representing singers, songwriters and musicians to representing record labels, motion picture studios, television production companies, creators and producers of content for the Internet and mobile phones, and actors, actresses and directors. The crossover between intellectual property law and entertainment law occurs in many different circumstances. Examples include registering a band name as a trademark; registering the copyright in a film, tv show, screenplay, or song; obtaining a patent for the combination of mounting a video camera on a motion picture camera so that the director can watch the scenes being shot in real time; and treating as a trade secret the source, location and formulation of unusual and unique guitar strings that produce an extraordinary sound because they are treated with a special coating.

Stay tuned for future posts which will discuss interesting trends and developments in both intellectual property and entertainment law.

More New Year Thoughts

2008-12-28T17:44:00.000-08:00

Right now - right here between the holidays and New Year's Eve - I'm thinking more about the new year than technical IP and entertainment law. We can get on with the IP and entertainment law tips next week. But as we look back at 2008 and look ahead to 2009, I remind myself of what JFK did when he said in 1961 that we’d put a man on the moon and land him safely back on earth within 10 years. People thought he had rocks in his head. Now....if we can just figure out how to apply the same type of American brainpower, drive and ingenuity to fixing the holes in our system……. In the meantime, since everyone needs a theme song, here is my vote for theme song of the week. Turn up your speakers!!

End of Year Thoughts & Our New Office

2008-12-26T16:13:00.000-08:00

END OF THE YEAR THOUGHTS:

We would like to express our thanks to our many clients, colleagues and friends who helped to make 2008 a very good year – economic turmoil and all. We would also like to extend our best wishes for happy holidays and a healthy new year!! 2008 has, of course, been a year unlike any other in recent memory. But we’re convinced that if we all keep our wits about us and remember that change is good, we are going to come out of this on the other end leaner, smarter and stronger.

We do what we do because we like it and because we want to make a difference. But we could not do it without all of you. In particular I am especially thankful to Mark Reichenthal, April Jernigan, Lisa Reichenthal and Alex Caducio who all make a huge difference every day.

OUR NEW OFFICE:

As many of you know, we recently opened a second office - in downtown Oceanside, California - in the historic Crandall Residence which was originally constructed in 1924. We had the opportunity to purchase the Crandall when it came on the market earlier this year and we couldn’t pass it up. We hope you will come by for a visit the next time you are in Oceanside or passing through. Please also keep your eyes open for an invitation to our open house in early 2009.