Public shaming is not a solution to trademark bullying. Let’s build one.

–Jason Voiovich

Last week, we saw the latest installment in the “trademark bullying” saga. But this time was different. Instead of lawyers fighting amongst themselves, DuetsBlog brought out the big gun: Seth Godin. You can read the entire piece here. I like Seth Godin, and so do lots of other people (hence, the “big gun”). I read the comments (over 30 from my count). It seems to make people feel better to have someone with credibility give voice to their frustration.

I’m not against feeling better; mental health is a big deal. But as I read situation after situation, I am struck by how cases of trademark bullying almost always turn out: The small business loses.

Perhaps they don’t lose in the legal sense, but they lose in nearly every sense that matters to a small business: Time, Energy, Money, Resources, and Attention. Every moment addressing a trademark issue is a moment not invested in their business. Small businesses do not have any of those assets to spare. Large organizations do. They have legal teams that shield their workers from the ongoing drama. They have marketing budgets to drown out negative publicity. If all else fails, they have the resources to outlast you. In over 10 years of public attention, is it any wonder their behavior hasn’t changed?

Public shaming feels good, but it is not working.

It’s time to act.

To act, small business owners need reliable information about their risks. They need that information in advance of a trademark filing, and even in advance of first usage – after-the-fact litigation or advertising insurance don’t solve the problem. And finally, they need accessible and affordable information – calling your lawyer before each decision is not realistic.

In other words, small business owners need an ounce of (affordable) prevention, not a pound of cure.

Here’s my proposal.

To explain it, I am going to adapt Guy Kawasaki’s new business pitch format. At the end, I am going to ask you to invest. Let’s go.

Define the problem.

Trademark owners rightfully defend what they’ve built. However, when they overstep, there is no downside for their behavior. Even if they “lose” in court, they don’t really lose. They create a “chilling effect” for future conflicts. Additionally, they can restrict the distraction in their organization to only their legal team (who, to them, this is not a distraction). By contrast, there is plenty of downside for the small business owner. An unfavorable result in a lawsuit can put a small company out of business. But even if you win, you lose. Distractions are killers.

How does your product solve that problem?

Prevention is the best cure. Imagine a “Trademark Risk Score” much like a credit score. At “1” might be a name you completely invent from random characters. At “100” might be naming your tech company “Big Apple Computers” – an algorithm automatically scores everything in between.

Underlying magic or technology.

Building the algorithm seems easy, but it is not. Factors could include the number of existing trademarks, the size of the companies with those marks, matches in categories of use, length of trademark ownership, recent court decisions or filings, etc. But those factors don’t make an algorithm any more than ingredients don’t make a recipe. The “magic” here is using professional attorneys to “train” the algorithm and improve it.

Business model.

Small business owners could buy access to the system as a one-time purchase (like a “risk check”) or as a subscription (like a “regular checkup”). Accelerators and angels offer this subscription as a service to their startups. I could even see entrepreneurial publications (cough, cough) providing this to their subscribers as an add-on. Lawyers could advertise their services. You get the idea.

Go-To-Market plan.

Aggregators of small businesses are key to the strategy; reaching them 1:1 is cost prohibitive. Fortunately, there are plenty of accelerators, gig economy supporters (e.g. WeWork), and trademark lawyers in the world.

Competitive advantages.

The biggest competitor to this idea is a data aggregator named Trademarkia. However, their service still relies on you as the small business owner to know what you’re looking for (and I don’t think their search functions or aggregation is all that “smart”). If you’re confused, they offer expensive add-on services ranging in cost up to $10,000. That’s not going to fly for the average small business owner. They need something easier to understand and digest.

In this proposal, you plug in a few details, the algorithm spits out a risk score. Is it perfect? No. Will it protect you? No. But it will give you critical information you need to make an informed decision on next steps based on your risk tolerance.

Management team.

This solution will require three key groups of people – tech (to write the learning algorithm), lawyers (to train it), and marketers (to promote it). I wonder if I know any of those people who might be reading this?

Financial projections.

Based on the 300,000 (or so) new businesses started in the United States each year, and a 20% penetration rate for my TAM, and a $100 subscription price, I calculate about $6 million in annual revenue. Back of the napkin, but it’s a business.

Rollout plan and milestones.

I am putting my money where my mouth is – with hard cash. I am committing publicly to the first $1,000. That’s (obviously) not enough to get started, and there is hardly enough detail in this “proposal” to make a formal investment decision, but perhaps it’s enough to get others interested and begin the conversation.

Hate this idea? Awesome! Use it (copyright free) to come up with your own idea.

Just don’t keep public shaming. That’s not helping anyone.

The post Public shaming is not a solution to trademark bullying. Let’s build one. appeared first on DuetsBlog.

What Does Entrepreneur Mean Anyway?

Let’s be very clear, today is April Fools’ Day, but this is not an April Fools’ Joke.

It’s not every day Seth Godin volunteers a guest post, but Thursday was that day.

Friday we published Stop Bullying the Entrepreneurs, 33 comments and counting.

This isn’t the first time Seth has spoken out against trademark bullying, he’s on record before noting: “When a brand becomes a bully, it loses something vital.”

And: “If you want to keep the taco place down the street from infringing on your business, don’t hire lawyers to hate on their slogan. Make better tacos instead.”

On Friday Seth went to public bat for kindred spirit and entrepreneur Jen Lehner:

Seth called out Entrepreneur Magazine for going after the name and mark for Jen’s podcast, “The Front Row Entrepreneur” — described by Jen this way: “The Front Row Entrepreneur gives you a front row seat to all of the most exciting people and happenings in online marketing and entrepreneurship.”

To Seth’s point, it’s difficult to create a podcast designed for an entire class of people known as entrepreneurs and not have the ability to include “entrepreneur” in the name, because it is: “One of the only words available to describe a person who builds an enterprise bigger than herself, often using outside resources.”

Actually, that’s a fair point, given the special meaning of the word — no other word that I could find with a thesaurus really captures the same and complete essence of the word “entrepreneur,” not “administrator, contractor, executive, manager, producer, backer, businessperson, founder, industrialist, organizer, promoter,” etc.

In fact, the Examining Attorney who approved Jen’s application to register THE FRONT ROW ENTREPRENEUR as a mark for podcasts, recognized the special meaning of the word, noting it to be descriptive of Jen’s podcasts: “A person who organizes, operates, and assumes the risk for a business venture.”

So, the USPTO told Jen to disclaim exclusive rights in the term ENTREPRENEUR in THE FRONT ROW ENTREPRENEUR mark for podcasts, and she did, but to satisfy Entrepreneur Magazine she also apparently needed to withdraw her registration application and, in terms of future use, contort the more efficient name into the more wordy mouthful: THE FRONT ROW PODCAST FOR ENTREPRENEURS.

So, what does ENTREPRENEUR mean anyway? Clearly much more than a particular magazine or other offerings of that magazine. Might it even designate a category or perhaps a subgroup of magazines — those about and for an entrepreneur?

If Entrepreneur Magazine is not careful, one of these days, it might find itself in a position tangling with an enforcement target willing to go the distance, finding out the hard way, if ENTREPRENEUR has become generic (part of the public domain).

The post What Does Entrepreneur Mean Anyway? appeared first on DuetsBlog.

The State of the Hat

One of the most justifiably ridiculed type of blog posts is the "hey guys I haven't posted in a long time" non-substantive blog posts, but nonetheless, here I am with a hey-guys-I-haven't-posted-in-a-long-time blog posts. (Like that? That's lampshade hanging.)

I'm pretty busy. My creative outlets are my new gig as a contributing writer at The Atlantic and the weekly All the President's Lawyers radio show and podcast on KCRW. And, though it seems I have abandoned the Make No Law podcast, I haven't — those podcasts are just incredibly time consuming to produce.

If I judge there is interest, I may start posting links to the Atlantic pieces and ATPL podcasts here for debate, in part so I can hear more regularly how much the site sucks now that I am Deranged By Trump/In The Tank For Trump. And I may develop some projects to write about here more regularly. So: though the site slumbers, it is not dead.

Copyright 2017 by the named Popehat author.

Stop bullying the entrepreneurs

– Seth Godin

It’s not good marketing and I’m pretty sure it’s not good law, either.

It seems as though Entrepreneur magazine (who should know better) is working with Latham and Watkins (who should certainly know better) to persist in their relentless efforts to bully entrepreneurs to stop using the word ‘entrepreneur’.

And yes, it’s a word.

Not a fanciful or inherently distinctive trademark, a word. Almost 800,000,000 matches in Google.

One of the only words available to describe a person who builds an enterprise bigger than herself, often using outside resources.

Without that word, it’s hard to describe the work.

Poignantly, it’s interesting to see that they’re not going after people with a ton of resources. If Brian Koppelman, David Levien and Showtime started going after billionaires for using the word ‘Billions’, I’d call it a fair fight. A dumb fight, but a fair one.

But deep in the bowels of the Latham offices in San Diego (which, fortunately, hasn’t been sued by the producers of Anchorman for trademark infringement) there are young lawyers, early in their career, sending nasty letters to entrepreneurs (there’s that word again) like Jen Lehner. You can see her work here: jenlehner.com/blog

Apparently, the powers that be decided that her podcast called “Front Row Entrepreneur” somehow infringed on a magazine that hit its peak in 2013. How?

“Front Row” modifies the noun. The trademark is the modifier, not the noun. Front Row is a trademark. Entrepreneur is simply a word.

With great cost and hassle, fledgling entrepreneurs (there’s that word again) who have finally gotten their business off the ground now have to dig in to either fight a huge law firm and their misguided but well-funded lawyers–or spend the money to change what they already built.

Who, exactly, does this help?

By engaging in this behavior, Entrepreneur might think it is building a strong trademark; instead, it is throwing away the very purpose of any trademark: To be a symbol of goodwill within a community. Amongst entrepreneurs, it is simply becoming a hated one.

Better, I think, to spend the time and the money building something that entrepreneurs actually like and respect.

The post Stop bullying the entrepreneurs appeared first on DuetsBlog.

Cardi B, You (Probably) Can’t Trademark “Okurrr,” Okay?

The saltiest trademark news in the last week surrounds singer Cardi B’s application to register the marks “Okurr” and “Okurrr,” both slang for “Okay???”–but pronounced in a hip, rolled-r trill, sometimes with a shady tone. Or, as Cardi describes, it: the sound of a “cold pigeon in New York City.” If you haven’t heard it said before, search no further than these humorous and fully-extra renditions by a few popular drag queens:

As with most seemingly-overreaching trademark applications, Cardi’s registration of these popular words–particularly in the drag queen community–has been met with criticism. The public backlash is understandable; it brings to mind the concern that trademarking a term will take it out of the public domain and inhibit free speech and fair use. Though, to be fair, Cardi’s applications only seek to preclude use of the word on clothing and merchandise. But she acknowledges the registrations are, essentially, a cash grab.

Indeed, trademarking common words appears to be a regular strategy for celebrities seeking to capitalize on words’ popularity. I’m reminded by the recent example of singer Will.I.Am attempting to trademark the phrase “willpower,” which was cancelled by the Trademark Trial and Appeal Board because the mark was too similar to other existing marks and had no source-indicating distinctiveness. That is, the public did not strongly associate the word “willpower” with Will.I.Am, so Will.I.Am cannot claim exclusive use of the mark in commerce. But Cardi argues that “Okurrr” has become her famous slogan, buoyed by a Superbowl Pepsi ad featuring her using the phrase and instructing others on how to pronounce it correctly.

And that brings me to the “T”–the truth–of the enforceability of Cardi’s registrations: it is unlikely that the general public would identify Cardi as the source of goods beat with “Okurrr” or similar marks because, in fact, “Cardi can’t honestly make the argument that she created the word.” Rather, according to the fiercest drag queen of them all, RuPaul, the credit goes to Broadway actress Laura Bell Bundy–even though RuPaul and other drag queens brought the phrase, which may have roots in African-American culture, to the runway, where it was picked up by the Kardashians and, now, Cardi B.

The contextual history of Okurrr is important and cannot be overlooked in the distinctiveness and goodwill analysis. It not only undermines Cardi’s legitimate claim to exclusive nation-wide use of the mark in commerce, but also seriously calls into question the appropriateness of restricting use of the word by all others, including the communities from which it originates–and which much of the public likely identify as earlier or actual sources of the word. Thus, trademarking “Okurrr” is likely to lose from both a legal and PR standpoint. That’s a sickening realness, but not in a “feeling the fantasy” kind of way.

Whether Cardi’s tuck-under will be allowed to stand, or the gag will be up, remains to be seen. At least one drag queen, Alaska, who is also known for her rendition of “Okurrr,” plans to clock Cardi’s conduct, potentially by challenging the registrations in court. Time will tell whether Cardi’s gambit will stay, or be asked to “sashay away.”

The post Cardi B, You (Probably) Can’t Trademark “Okurrr,” Okay? appeared first on DuetsBlog.

More DuetsBlog Accolades, Thank You!

It’s that time of year again, and we’re honored to share some wonderful news — hot off the press today — concerning the 2019 JD Supra Readers’ Choice Awards:

For the third year in a row, we have been recognized as the Top law firm writing on Trademarks (incredibly, four of us made the Top Ten listing out of more than 1,200).

Of course, we couldn’t achieve these lofty accolades without you, our dear readers, followers, and those who generously provide their valuable insights and comments.

However you have found us, whether through JD Supra, LinkedIn, Twitter, or if you’ve been with us since the beginning, more than 10 years ago, we’re thrilled you have joined us on this journey, and thank you for your generous contributions! Each one of you inspire us to write clearly, also thanks to Jimmy John’s, for this reminder:

The post More DuetsBlog Accolades, Thank You! appeared first on DuetsBlog.

What is Uninsured/Underinsured Motorist Coverage and Should I Have It?

Ask the next person you see – it could be a stranger: “Do you know what UM or UIM automobile coverage is? Chances are the person will give you a bewildered look and ask: “What is it?” Uninsured and Underinsured Motorist coverage, known as UM and UIM coverage, is a form of insurance that protects you against drivers who choose to drive without insurance or only bare minimal policy limits. If such a driver negligently causes an accident, your ability to recover from your injuries and secure compensation for damages is put at severe risk. You may be forced to pay for your own vehicle repairs, medical bills, lost wages, co-pays, and deductibles. You cannot even be compensated for the pain and suffering the other driver caused no matter the extent of your injures. To protect against such a nightmare scenario, drivers are offered UM/UIM coverage that allows you to make a claim against your own policy when the other driver does not have enough insurance to pay your reasonable losses.
In areas of the country containing especially aggressive drivers, like Las Vegas, you should have UM/UIM coverage to protect you and your family. UM/UIM is not mandatory in Nevada so it must be specifically requested. In fact, your insurance agent must have you sign a document to affirmatively decline this coverage. Many people decline without understanding the potential consequences.
According to USLegal.com, uninsured motorist coverage is defined as follows:
Additional coverage in a policy of insurance on an automobile which provides that if the owner (or a passenger) of the automobile is injured by a negligent driver of another vehicle who does not have liability insurance, then the insurance company will pay its insured’s actual damages.
Not having UM/UIM coverage could carry heavy consequences and result in the following scenario:
You are driving to work, as you do every morning, when someone runs a red light and t-bones your vehicle. Your air bags deploy, you are hurt and disoriented, and you are fault free. After calling 911, you exchange insurance information with the other driver and secure a police report then immediately seek treatment for your injuries.
The next day or so after the accident, you meet with an attorney and learn the consequences of the negligent driver having no insurance or only minimal coverage. Your attorney then reviews your own auto policy to learn that it does not contain UM/UIM coverage. You are now left without recourse or remedy – you must pay your own damages, often out of your own pocket. This consequence is potentially devastating depending upon your level of injuries and the extent of damage to your vehicle.
Unfortunately, the above scenario is all too common.
If you do have UM/UIM coverage, your attorney will negotiate with your insurance company regarding that coverage to ensure you receive compensation for your loss. Each case is different, but the one constant should be that you have UM/UIM to rely upon. The lawyers at vegas west attorneys strongly recommend that you immediately call your insurance agent or pull your written policy to verify UM/UIM coverage. If you do not have this coverage, consider adding it.
If you, or someone you know, is injured by the negligent driving of another, whether it be in your car, ride-share, or company vehicle, do not wait to consult with an attorney. First, seek treatment for your injuries, then immediately meet with an attorney to discuss your rights. Do not speak with the adverse insurance company or give a recorded statement until you have “lawyered up.” The insurance companies have teams of defense attorneys and adjusters that diligently aim to pay you the least amount possible for your injuries and damages. Do not fall victim to their tactics.
At vegas west attorneys, we have defense attorney experience which allows us to meet and beat the insurance companies at their own game. We will protect your rights while you undergo appropriate treatment and recover from your injuries. Once the extent of your losses are known, we will aggressively seek a fair recovery that properly compensates you for the inconvenience you have suffered, property damage, medical treatment, lost wages, and the pain and suffering you had to endure because someone chose to act carelessly at your expense. By not reaching out to a legal professional after suffering an injury, you risk not knowing the answers to the following important questions:
• Should I provide the insurance company with a statement and, if so, when?

• Do I call my insurance company to make a claim or call the person’s insurance who hit me?

• Who do I call to fix or replace my damaged vehicle? Is a rental car available?

• I cannot miss work to attend doctor appointments. What should I do?

• If I don’t know a doctor who can provide treatment, how do I find one?

• If I do not have medical insurance to pay my medical bills, what other options are available?

• How much should I expect in a settlement or judgment following trial?
At vegas west attorneys, we work directly with you to provide proper legal advice to answer these important questions and others. Our experienced attorneys and case managers provide aide in different aspects of your accident case as well. We are your injury advocates and will speak with the insurance companies, so you don’t have to; instead, you can focus your attention on getting better.
It is most important in any accident case that you recover from your injuries and pain to the greatest extent possible. This requires that you receive all the health care that you need and deserve, including, if necessary, physical therapy, proper imaging, orthopedic services, pain management treatment, neurological analysis, and sometimes neuropsychological treatment in cases involving closed head injuries. Often, various experts are required such as accident reconstruction engineers, biomechanical experts, vocational rehabilitation experts, and others. Hopefully, your injuries will not require such extensive treatment and analysis, but if it does, vegas west attorneys are equipped to handle every aspect.
Often, an accident can involve forces that cause your head to whip so violently that your brain collides with the bony interior of your own skull. This contact can cause bruising to your brain tissue and tearing of blood vessels. Not every head injury is immediately followed by a loss of consciousness and, often, the symptoms from a brain injury do not manifest until later. Other injuries, such as spinal injuries, may seem minor at first but ultimately require extensive treatment, including surgery. Seeking proper treatment for injuries that you might not even suspect initially is crucial to recovery.
Waiting to seek legal advice may prove detrimental not only to your accident case, but to your health and ultimate outcome. At vegas west attorneys, we evaluate our client’s insurance policies when injured in an accident, along with all potential insurance policies that may be applicable, so we may provide you the best chance of returning to your pre-accident condition. UM/UIM is just one benefit that many people do not secure when obtaining automobile insurance because they want to keep their monthly premiums low. However, UM/UIM coverage is not overly expensive and can prove extremely valuable in case of an accident. We recommend asking your insurance agent about the cost of adding this coverage with the hope that you’ll never need it, but if you do, you will be thankful to have it.

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