Law Blog

Beware of Trademark “Registration” and “Directory” Schemes

Beware of Trademark “Registration” and “Directory” Schemes

Uncategorized
Yesterday, I received a frantic e-mail from a client for whom my law firm had just filed a new trademark registration with the United States Patent & Trademark Office (USPTO). It seems the client had received a letter from an organization identifying itself as "WTP", which came in the form of a very serious looking invoice for her to pay $1,420 dollars for "Reproduction of Trademark". A "Trademark Publication" Letter from WTP In the middle of this missive, was the drawing of the mark which we had submitted in the original Trademark Electronic Application System application. Oh look, it even has the application's USPTO Serial Number! The client was understandably concerned, as her startup had already paid the TEAS filing fees for two International Classes, not to mention my legal…
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9th Cir. Gives No Credit to Claim that Experian’s Updated Site Terms Apply

9th Cir. Gives No Credit to Claim that Experian’s Updated Site Terms Apply

Contracts, Online Agreements, Terms of Service
A recent Ninth Circuit Court of Appeals decision involving mega credit reporting company Experian reminds us that online businesses should be careful of relying on unilateral "change-of-terms" clauses in their online terms of use/service/and conditions. Stover Background In Stover v. Experian Holdings, Inc. (No. 19-55204, 9th Cir. 2020), Stover purchased an "Experian Credit Score" service from the credit reporting firm back in 2014. In doing so, she was required to accept Experian’s terms and conditions, which contained a number of provisions in which she agreed to waive her right to be part of a class action and to arbitrate all disputes “to the fullest extent permitted by law”. Under these 2014 terms, Stover further agreed that each time she accessed the "Product Website", she would be manifesting assent to the…
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Is Minimum Wage Required for My Startup’s “Gig” Workers?

Is Minimum Wage Required for My Startup’s “Gig” Workers?

Employment Agreements, Independent Contractor, Start-Up
Startup companies (particularly those in technology or e-commerce) typically rely on independent contractors to fill key roles in the early stages of development, design, and implementation. But not a few startups we advise also rely on short term, part-time, “gig” workers to make their business model go. These workers are typically paid by the end-customer through the startup's platform, which facilitates the transaction (usually for a cut). So, are such companies required to pay or guarantee a certain minimum wage to such workers? Minimum Wage and Arizona Law NOTE: I am only licensed to practice here in Arizona and, as such, this post deals strictly with the law of Arizona. You should research the law of your own state or consult a qualified lawyer in the state where you are…
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Southwest’s Efforts to Enforce Browsewrap Terms Isn’t Peanuts

Southwest’s Efforts to Enforce Browsewrap Terms Isn’t Peanuts

Contracts, E-Commerce, Terms of Service
Remember these...? Last month, Southwest Airlines Co. (“Southwest”) filed a complaint in a Federal court in Texas (where the discount fare airline is based) against Kiwi.com, an online travel site. While the lawsuit revolves around Kiwi’s scraping of airfare data from Southwest’s website, as well as violation of the Computer Fraud and Abuse Act (CFAA), it offers some valuable lessons to e-commerce and online businesses relying on “browsewrap” terms for their website. Case Background In the Complaint filed in Southwest Airlines Co. v. Kiwi.com, Inc., No. 21-00098 (N.D. Tex. filed Jan. 14, 2021), Southwest accuses Kiwi of scraping of the airline’s flight and pricing data off of its website and selling Southwest tickets through its own platform (apparently charging service fees on top). Southwest, in its breach of contract count,…
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What Is The UDRP? (and Why It Matters to Your Business)

What Is The UDRP? (and Why It Matters to Your Business)

Domain Names, Trademark, Trademark Infringement, UDRP
In the past month, I've had a number of clients who are either facing, or are in a good position to use, the Uniform Domain-name Dispute Resolution Policy (UDRP) for their websites and domain names. Given this rash of requests to our e-commerce law firm, this might be a good idea to explain just what is the UDRP and the advantages it offers online businesses and trademark owners facing disputes over domain names utilizing or confusingly similar to their valuable brands. What is the UDRP? The explosion of the World Wide Web in the very late 20th Century led to a number of enterprising individuals attempting to register trademarks they did not own or had no legal authority to use as Internet domain names. The purpose behind this "land grab"…
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