A Legal Blog by Aaron | Sanders, PLLC

Startups, Keep Your Trademark Registrations Fresh

How Some Crummy T-Shirts & a College You Probably Never Heard of Might Inform Your Trademark Strategy

Let’s say you started your company up several years ago. You called it BLERGLE. Back then, your company was a software development shop. Because you’re you, you worked with a lawyer to apply for and obtain a federal registration of BLERGLE for “software development services.” Later, your company expanded naturally into web design, handling both front-end and back-end design and development. The thing is, you and your fellow founders aren’t really software folks. Deep down, you’re all hardware folks. And you all discover that, thanks to all the software development you’ve been doing, you can make a mobile game controller made specifically to play online browser games that don’t work well on smart phones.

You start making and selling these BLERGLE mobile browser game controllers, and they’re a hit. Parents like them because they’re cheap, they can control what games their children can play, and their children will stop begging to play games on the parents’ smart phones. Also, the controllers are excellent for playing “slither.io.”

Alas, with success come competitors—almost immediately. Within a couple of months, one starts to sell a FLARGLE mobile browser…

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Tara Aaron will be participating in a webinar on Drafting Clickwrap and Browsewrap Agreements on October 17th

Hello all – I will be participating in a ClearLaw Institute webinar at 3 p.m. Eastern Standard Time on Tuesday, October 17th, 2017. The webinar is entitled “Drafting Clickwrap and Browsewrap Agreements: Enforceability Pitfalls.” If you are interested in attending, ClearLaw has been kind enough to offer a 35% discount to friends and colleagues of mine who use this link to register. Feel free to share this link with other colleagues who have clients who are operating online businesses of any kind.

This webinar will cover the background of these court cases, recent updates on legislation, and best practices for drafting “clickwrap” or “browsewrap” agreements. Specifically, the presentation will focus on provisions affecting contract authentication, mutual assent, notice, indemnification, and unilateral modification. The course will also emphasize the need to ensure that website terms and conditions are posted in a conspicuous place. It will also explain strategies for avoiding enforceability pitfalls and resolving contract disputes. During the webinar, you will learn about:

How recent court cases and legislation have affected the enforceability of online agreements
The enforceability risks surrounding clickwrap and browsewrap agreements
How corporate counsel can effectively mitigate these risks and avoid enforceability pitfalls
What terms should be included in…

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Netflix sends hilarious cease and desist letter. But should it have?


It has been a welcome development in the art of cease-and-desist and demand-letter writing lately: Rather than a stern warning with paragraphs of statutory citations and threats of “treble” and punitive damages to the moon, companies have had their counsel user a lighter touch, cajoling with charm rather than terrorizing with money damages. Recall the lovely letter received by the author of the book “Broken Piano For President,”** which used a Western saloon-style scroll that Jack Daniels thought was remarkably reminiscent of the scrolls on the label of a bottle of its whiskey.  “We have to be diligent,” said Jack Daniels, as if the letter was a chore that had to be carried out by whichever lawyer drew the short straw. “We’re sure you didn’t mean it,” and all we’re asking is that you “change the cover design when the book is re-printed” (because we’re SURE you’ll make it to re-print, buddy….) The letter went viral, a beacon of a new day in C&D letter writing style. I’ve even written a few of my own cheeky letters since then.

The latest of these is a letter from Netflix to the owners of a bar in Chicago who, in honor of…

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Copyright Law Can Spice Up Anything: The Surprising Scope of Copyright Protection

The Thick and Thin of Copyright Protection

Copyright lawyers love tell you that copyright law is all about encouraging creativity because that makes it seem that we’re performing some sort of socially useful activity. We love to point to paintings, novels, movies and music. Without the legal monopoly that copyright law confers on “creators,” these wonderful things wouldn’t be created. Or, at least, they wouldn’t be as good.

And—you know what?—sometimes this is even true! There are lots of cases about music and movies and even dancing!

But you know what else is protected by copyright law? A catalogue of dental procedures. Lists of collectable cards. Medical education brochures (e.g., Gastroesophageal Reflux Disease: Understanding Your Health.) Private placement memoranda.

What’s a private placement memorandum? So glad you asked. Before you can ask folks to give your enterprise money, you need to provide them with certain information so they can make an informed decision. If you’re providing this information because you’re offering to sell equity or debt, and the transaction is “private,” then you’ll be expected to provide a “private placement memorandum” (or “PPM”). PPMs are not “creative,” in the usual sense of the word. They are designed to inform. Much of the information…

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WOO! What Bachelorette Parties in Nashville Can Teach You About Trademarks and Trademark Registrations

A PEDAL TAVERN by Any Other Name Would Still Be as Annoying

On my way back to Nashville (from Los Angeles) last week, I found myself in the back of the plane with not one, but two bachelorette parties. It wasn’t quite noon (Pacific time), but several of the members were already pretty drunk, and they all had a grand time. You might assume that I was just really unlucky, but when you consider how many bachelorette parties there are at any one time in Nashville, and that almost all have to fly into Nashville, you’d conclude that it was amazing I hadn’t encountered two on the same plane before.

Now, I don’t want to say anything bad or dismissive about bachelorette parties, even though we all find them a trifle annoying. They constitute 16.67% of the overall Nashville economy and give rise to about 20% of all civil lawsuits here, so it’s sort of important that we bite our tongues and tolerate them. Without them, the local AirBNB market would collapse, which would hurt the market for tearing down old homes and replacing them with two-towers-on-a-single-lot. Bars and honky-tonks would be hurt, and several of them would probably go out…

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Register whatever the F*&# you want: Victory for the Slants and the First Amendment

The Lanham Act had some language struck out of it by the Supreme Court today. In the trademark world, this qualifies as Big News.

A superbrief history: The Slants are a band out of California made up entirely of Asian Americans. Simon Tam, the lead singer, filed an application for registration*** of the trademark THE SLANTS, which was refused because Section 2(a) of the Lanham Act prohibited registration of marks that “disparage . . or bring into contempt or disrepute . . . any persons, living or dead.” He appealed to the Trademark Trial and Appeal Board and was refused, but the Federal Circuit, in an en banc decision, found the so-called “Disparagement Clause” unconsitutional on its face. The Supreme Court just affirmed.

***This is Very Terrible for the other members of The Slants.  Much has been written on what happens when a trademark is registered in the name of a single band member and the band breaks up.  If you are the guitar player or the drummer instead of the lead singer, NEVER EVER LET THIS HAPPEN.

The Court held that the Disparagement Clause is unconstitutional insofar as it requires viewpoint discrimination. Trademarks are not government speech, regardless of whether the…

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