Monday, June 20, 2016

Cloud Computing Service Considerations

Cloud computing service considerations are developing as the concept catches on.  Incidents of a breach, contract disputes, hacking, and ongoing lawsuits are serving the way for conditions to be highlighted.  Nascent, cloud computing contracts were conceived as a data storage solution for businesses, municipal entities, and state organizations.  So long as remote access was guaranteed, all was good and happy. Clouds were never seen.  All too frequently shortsighted and often miss crucial business facets of on-going business operations were overlooked.  The cloud service levels are initially considered but not the ongoing issues that arise from changes in the administrative roles of the service provider host.  Critical issues if overlooked will have future consequences for both the host and the client.  Experience is seldom a happy story to failed cloud computing agreements and Enterprise Resources Planning software compendiums to the na├»ve and eager business, firm, agency, and the like.
The value of the service to be provided via the cloud, whether from the client/subscriber perspective or from the service provider’s perspective. The entire idea of housing all the digital data (records, apps, forms, business correspondence, business contracts, designs, price lists, and so on in a remote server, so long as it saves space, save a business from hiring records keepers and storage clerks, is tantalizing to the small and medium size business.  It is now catching the attention of municipal governments, state agencies and their shared resource centers and state technology enterprises.  Storage resource centers started conceptually in Florida in 1999 and many followed suit since.
Backup administration and their process frequency should be addressed to minimize liabilities in any ERP agreement.  Liabilities soon creep up and dog the company relying on providing its clients its services via the cloud.  As such, the cloud service provider’s (CPC) performance, its service levels, backups, and reliability of service is central.  As sunny days become cloudy, cloud services are not non-interruptible.  And so goes the need to assess the capabilities of the cloud service provider.
The haste in which subscribers seek cloud services for the appearance of storage and remote clutter-free access and the appearance of efficiencies at time overlook the levels of stackable fees.  The suite packages that hosts provide through their licensing cloud software product provider, i.e. Microsoft®, Oracle®, Cisco®, IBM®  have a plethora of products from which to select individually or bundled.   Enterprise Resource Planning (ERP) service companies may display levels of service and support services in their product offerings.  ERPs are an integrated form of software deployed to seamlessly work together to manage business operations.
The concept of ‘software as a service’ “SaaS” tying a subscriber to a three (3) to (5) year contract is unpalatable when conceiving the potential frequency of service interruptions.  The possibilities for litigation are bright.  The idea of state and federal regulatory noncompliance puts a subscriber of cloud services in the cross hairs of a regulatory body and certainly ‘cloud’ the sunniness of the ERP provided by the cloud service vendor.  The offset cost for downtime and interruptions are glossed over.  Failure to memorialize the duties and responsibilities in case of the unfortunate cloud circumstance leave the subscriber at a loss.  If revenues decline what recourse is available to the subscriber?  The saga continues and begs for a follow-up, but just one point to keep in mind for the follow-up, the personal human attention that at first was desired to be minimized by resorting to ERP and Saas concepts, essentially reducing the human element, has by experience been an unintended resolving alternative when it gets  cloudy in a subscriber’s business operation.

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web." Copyright 2016, all rights reserved Lorenzo Law Firm, P.A.

Saturday, June 18, 2016

Trademark Nominative Fair Use and Confusion

Trademark use and the element of fair use in business snags many businesses trying to market their service or product, while seemingly using a competitor’s trademark. Liability may not be avoided by relying on the fair use defense.  Words and their message are usually held to a standard regarding the possibility of consumer confusion.  There is also the element of misappropriation of a competitor’s product image, likeness, name, etc., that could lead to consumer confusion.  In the digital arena, this is prevalent.
An accepted response to an infringement trademark claim seeking to defend the use relies on the fairness of use when confusion is likely.  Standards vary in its defensive application, and of late, the Second Circuit weighed in on the debate.  The matter involved IISSCC[1] (ISC2) and Security University, LLC (SU).[2]  ISC2 had developed a certification program for information systems security training granting a certificate of achievement of the program.  The representation of the certification would connote that the individual is a recipient of a certification as a certified information systems security professional.  Such would as well represent satisfaction of course and testing requirements.
SU, as well, as ISC2 engages in a credentialed information systems security course program.  ISC2 found a reason to claim trademark infringement when it noticed that faculty members of SU were attributing their credentials to ISC2 nomenclature, i.e., using the acronym IISSCC.  The acronym IISSCC was using a qualifying word that ISC2 did not approve of nor did it offer.  Its use brought some confusion, as ISC2 claimed before the US District Court for the District of Connecticut.  The claimed advertisement described a certification that was higher than what ISC2 offered and they articulated that this would confuse consumers.  Nevertheless, the US District Court for the District of Connecticut granted summary judgment to SU hinging on its interpretation of nominative fair use which is underscored by SU’s reference to ISC2’s trademark.
The Second Circuit Court of Appeals reversed the District Court while analyzing the taxonomy set in previous cases, i.e. Polaroid Corp[3] and New Kids on the Block[4] out of the Second and Ninth Circuits respectively. Such criteria are necessary, the Second Circuit urges, in order to weigh the factors in the case. In its analysis, the Second Circuit weighed in on the factors to be screened, borrowed from the Polaroid case, to determine the likelihood of confusion in balance with the opportunity of fairly using a competitor’s trademark.  It underscored that the use of the defense of ‘nominative fair use’, in that the defendant has used the plaintiff’s trademark in its representations, is only plausible if there is the absence of consumer confusion between the two uses of the representations. A competitor would not be shielded from liability where is a reasonable likelihood of confusion.
The Second Circuit’s ruling is a clear indication of how strong the factor of ‘confusion’ plays in the marketplace.  The utility of the nominative fair use defense, though recognized throughout the circuits as a conditioned viable defense, will depend on the circuit where the case sits.  The element of confusion of one’s product or service with that of a competitor’s product or service should be carefully weighed before any product or service promoting campaign is launched.  The likelihood of success of the nominative fair use defense is uncertain despite its recognition and its articulation by the circuits.
[1] International Information Systems Security Certification Consortium, Inc.
[2] International Information Systems Security Certification Consortium, Inc. v. Security University, LLC, (2nd Cir. May 18, 2016).
[3] Polaroid Corp. v. Polarad Electronics Corp. (2d Cir. 1961).
[4] New Kids on the Block v. News Am. Publishing, Inc. (9th Cir. 1992).

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web." Copyright 2013-2016, all rights reserved Lorenzo Law Firm, P.A.

Tuesday, June 14, 2016

Trademark Misrepresentation in Appearance of Advertising

Trademark misrepresentation rather than respecting the appearance of a marks brand through advertising runs the risk of using creative naming.  Courts will look at advertising's subjective effect on consumers.  The query for concern is to determine if the advertising seeks for the consumer to make the association with an existing unrelated brand of a product.  Any confusion likely to cause the consumer to relate the products as one and the other will be deemed suspect; running the risk of  being false.  The Lanham Act addresses the aspects of both infringement to trademarks and the misrepresentation of a product brought upon by suspect advertising or ‘false’ advertising.  All in the realm of competition for the use of words and appearances between products at times appears a blur for consumers.

Courts delve into the analysis of Lanham Act’s Section 43(a) where false association claims arising from false advertising are viewed as possibilities for claims of trademark infringement and suspect advertising.  This concern arose from a dispute between Tyson Foods, Inc., i.e., “Park’s Finest” and Parks, LLC, where the latter claimed that Tyson was infringing on its trademark.  The argument cornered on the plaintiff claiming that Tyson’s statement “Park’s Finest” was falsely representing its product as the defendant’s product.  The defendant, Tyson already has the existing product brand called “Ball Park” for which it was trying to image in its advertising.

The analysis of the case cut through the distinction of false advertising and trademark infringement claims.  The salient points raised by the court highlighted the aspects of false advertising and associations.  These two conducts that are addressed by the Lanham Act as prohibitive because they each can cause consumer confusion.  The confusion to be avoided is the result of the consumer deeming an advertising message as implicating a relationship and association with a product where there is no association to a brand, goods, products, and the like; hence, the false association driven by the advertisement.  What is prohibited is the when advertising seeks to involve the characterization of quality and the nature of an unrelated product, i.e.,  false advertising.

The court analyzed the plaintiff’s false advertising claim hinging on the argument that defendant was passing its products as the plaintiff’s products.  Since the court determined that defendant’s conduct and defendant’s advertising was not seeking to relate to plaintiff’s products or its nature or origin.  Because of this, plaintiff’s argument failed, as it was more an argument of false association and not one of false advertising under advertising law.  The court read the defendant’s use of “Park’s Finest” as not being a false statement because it clearly did not refer to the plaintiff’s product.  The words used by defendant referred to its own brand named “Ball Park” franks.   The creative naming of the hot dogs and the similarity of them barks a foul for the plaintiff claiming misrepresentation.  The nuance between false advertising under trademark law and false association under advertising law was made clear.

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web." Copyright 2016, all rights reserved Lorenzo Law Firm, P.A.

Monday, June 6, 2016

Websites’ Safe Harbor Copyright Notice Designation

Websites safe harbor takedown requirements by the Copyright Office is soon to undergo changes.  According to the Copyright Office, it is the responsibility of a website owner or online service entity to make it easy for a copyright holder to contact the website regarding the possibility of content infringement.  The agent designation requirement[1] process form, pursuant to 17 U.S.C. Limitation of Liability Act is what is being addressed by a new NPRM.[2]  The proposed rule seeks to establish the requirement that the 17 U.S.C. 512(c) designation be filed every three years. Title II of the Digital Millennium Copyright Act houses in Section 512 the Online Copyright Infringement Limited Liability Act—otherwise known as the Safe Harbor Provision.   The 512 (c) (3) designation requirement provision would earmark who is responsible for serving as website agent to receive takedown notices. 

In order for a website or online service providers to benefit from the “safe harbor” provision, the website or online service entity must have a DMCA[3] authorized agent who will receive copyright takedown notices.  These filed designations are recorded data by the Library of Congress.  The critical change is that a website 512(c)(3) agent designation must be renewed every three years.  Failure to file could jeopardize and online entity’s safe harbor protection under the DMCA copyright takedown provision. Arguably, the increased frequency for filing the designation could provide the Library of Congress a means by which to refresh its database of websites.

Website operators and online service providers benefit from the “safe harbor” protection with limitations on their liability as a result of infringing activities of other entities.  The requirements set under Section 512 of the Limitation of Liability Act establish procedures for ‘notice’ and ‘takedown’ of copyright infringing content and establishes steps to challenge improper takedown.  These procedures and their intended liability reducing benefit have reduced the risk of copyright liability as a result of third-party displaying infringing user content on a website.  It immunizes a website from someone else’s copyright infringing content being posted on their website.  The issue of concern is that with the three-year frequency requirement, the likelihood of a website operator missing its deadline to file is higher and increases the risk of liability in the long run. 

[1] 17 USC 512 “safe harbors”

[2] Notice of Proposed Rulemaking

[3] Digital Millennium Copyright Act 

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web." Copyright 2013-2016, all rights reserved Lorenzo Law Firm, P.A.