Archive for the ‘blog’ Category
Use Of Credit Reports In Employment Decisions
Restricted Under New California Law
California Governor Jerry Brown recently signed into law AB 22
. As we reported last week, AB 22 was among a slew of new
bills impacting business that the Governor signed as the
deadline for doing so approached.
AB 22 restricts the ability of California employers to use
credit reports when making employment decisions, including
but not limited to hiring decisions. However, several exceptions are built into the
legislation, which permit businesses to do credit checks if the position at issue,
among other things, is:
1. Managerial
2. Law enforcement
3. Involves regular access to $10,000 in cash or more
4. Involves regular access to the bank and credit card info, date of birth and Social
Security Number of at least one person
5. Involves access to confidential or proprietary information that is of value and
subject to reasonable efforts to maintain its secrecy
Under existing Federal law, employers are required to obtain the written consent
of an employee or applicant before obtaining their credit report, and notify the
employee/applicant if any adverse employment action is taken as a result.
Credit reporting agencies and business group opposed the new California law,
arguing that businesses need the information in credit reports to help make informed
decisions about employees and applicants.
Consumer groups and others supported the bill, even though they wanted fewer
exceptions, viewing it as a positive development because it places new restrictions
on the use of credit reports in hiring and other employment decisions.
Contact Schein & Cai for all of your employment law needs. Our attorneys have
handled a variety of employment law disputes with great success and client
satisfaction. We offer a free initial consultation.
Find us at www.sacattorneys.com.
Mobile Internet Conference Roadshow
We highlight one event this week in our continuing coverage of
high tech meetings and conferences in the Silicon Valley and
San Francisco areas.
It’s the GMIC Roadshow: Meet with Tech Leaders From China. It
takes place November 8, 2011 from 5:30 pm to 9:30 pm at
Stanford University in Palo Alto.
A buffet diner and exhibition start the evening, followed by panel discussions and
presentations.
Lei Jun, CEO, Xiaomi – China’s most famous angel investor and CEO of
China’s “most ambitious startup”
Wang Jian, CTO, Alibaba – The world’s largest online B2B trading platform for small
businesses
Jeff Xiong, CTO, Tencent – The third largest internet company in the world – IPO’d in
Hong Kong
Michael Song, CEO, Skymobi – China’s largest Android marketplace and recently
IPO’d in the US
Yu Lin, CEO, Netqin – China’s largest mobile security company and recently IPO’d in
the US
Liu Shuang, CEO, iFeng (Phoenix New Media) – Internet and mobile portal and
recently IPO’d in the US
Yu Yongfu, CEO, UC Web – China’s largest mobile browser and expecting to IPO in
the US this year
Joe Wu, CFO, Netdragon – Top internet and mobile gaming company – IPO’d in Hong
Kong in 2007
Sheng Bi, CEO, Letao – Top apparel eCommerce company
Wenchu, CEO, GWC – producer of The Global Mobile Internet Conference (GMIC)
Barrett Parkman, VP, GWC – producer of The Global Mobile Internet Conference
(GMIC)
For details click HERE.
Schein & Cai LLP, focused business and intellectual property law firm advising
startups in the Silicon Valley and beyond, including San Jose, Santa Clara, Mountain
View, Sunnyvale, Morgan Hill, Oakland, San Francisco, Palo Alto, San Mateo, Santa
Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.
Disclaimer: Schein & Cai does not endorse any event featured on this blog. Listings
are included as a convenience for the readers. Readers should investigate each event
and determine if it is right for them.
Intel Trademark Enforcement On The Rise
Intel, the world’s largest computer chip maker whose
microprocessors can be found in personal computers and
other products worldwide, has been active lately in
attempting to enforce its trademarks. Like many
successful companies, Intel spends substantial sums to do
so. According to one report, earlier this year the Company
asked the WIPO Arbitration and Mediation Center to cancel or transfer fifteen
domain names that included the “Pentium” mark.
Trademark law generally protects a mark holder against infringement only if the
allegedly infringing mark is identical to or confusingly similar to the mark in question.
The owner of a trademark that is famous can also sue for trademark dilution in
cases where there may not be confusion as to the source of goods or services but
the use nonetheless dilutes the strength of the well-known mark through blurring or
tarnishment.
Recently, Intel sued Intelspec, a construction and engineering company based
in Utah for trademark infringement and dilution based on the Intelspec name
and domain (www.intelspec.com). In order to make its case that Intelspec is an
infringing mark, Intel alleged that Intelspec is confusingly similar to Intel.
The hurdle Intel faces with respect to its infringement claim is that Intelspec is in
a different business. It’s a construction and engineering firm, not a chip maker or
computer company. This lessens the likelihood of confusion in the market as to the
source of its goods and services.
Still, Intel is making its case. According to the Complaint, the crux of Intel’s lawsuit
with respect to the infringement claim is as follows:
“[C]ommunications infrastructure for public and private entities” is a “primary focus”
of Intelspec’s business and “[g]iven Intel’s involvement in communications, the
vast use of Intel’s products and services by the military and in other engineering
applications, and the similarity of the marks, there is a likelihood that those
customers will attribute the quality and content of Defendant’s offerings to Intel.”
Some see this as a stretch. But one thing is certain. When a corporate giant is
protecting its trademarks, sometimes smaller companies, even those in different
industries, end up in their target.
Schein & Cai LLP, focused business and intellectual property law firm advising
startups in the Silicon Valley and beyond, including San Jose, Santa Clara, Mountain
View, Sunnyvale, Morgan Hill, Oakland, San Francisco, Palo Alto, San Mateo, Santa
Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.
Find Schein & Cai at http://www.sacattorneys.com/.
UCLA Defeats Copyright Infringement Claim
Using Sovereign Immunity
An educational video producer licensed a DVD titled “The Plays Of
William Shakespeare” to the University of California Los Angeles
(UCLA). After UCLA copied and reformatted the DVD, and placed
it on the Internet so students and faculty could view it from
remote locations, the video producer sued the UCLA Regents and
various University officials.
The complaint set forth several theories of liability. But the US
District Court for the Central District of California shot down every one of them in a
decision dated October 3, 2011, granting the Defendants Motion To Dismiss.
Of special interest was the claim for copyright infringement. One might think that
fair use under US Copyright Law came into play, but the Court actually dismissed the
copyright claim based on sovereign immunity. The principle of sovereign immunity is
found in the Eleventh Amendment to the US Constitution which states:
“The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.”
Based on the Eleventh Amendment, Courts have held that lawsuits by citizens
against States, for money damages or equitable relief, cannot be brought in Federal
courts without the State’s consent.
Because the Regents of UCLA is an arm of the State, sovereign immunity came into
play. The court held that the Defendants did not waive sovereign immunity as part
of their agreement with the video producer, and noted that Courts have held the
Copyright Act does not validly waive sovereign immunity either.
Schein & Cai can advise you with respect to all copyright matters. We assist
companies in Silicon Valley and beyond, including San Jose, Santa Clara, Mountain
View, Sunnyvale, Morgan Hill, Oakland, San Francisco, Palo Alto, San Mateo, Santa
Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.
Find Schein & Cai at www.sacattorneys.com.
Apple’s iCloud Meets and Defeats
iCloud Communications In Trademark Battle
Apple announced its iCloud storage and synching service after its
Worldwide Developer Conference held in June of this year. Shortly
thereafter, an Arizona based company, iCloud Communications filed
a lawsuit against Apple for trademark infringement. At first blush,
the lawsuit seemed meritorious. iCloud Communications claimed to
have been using its name in the marketplace since 2005, it was in
the telecommunications business which according to its complaint involved products
that were “identical to or closely related” to Apple’s. Thus the likelihood of confusion
in the marketplace seemed real, a hallmark of trademark infringement.
But early in September word broke that iCloud Communications was moving on its
own to dismiss the lawsuit with prejudice. The company has now changed its name
to Clear Digital Communication.
What happened between the time the suit was filed and dismissed? Is this a case
of Apple flexing its muscles and strong-arming a smaller player into submission
notwithstanding the merits of the case? Did the parties reach some sort of amicable
agreement leading to the dismissal of the lawsuit? Did Apple compensate iCloud
Communications and make it easier for the smaller company to give up its right to
use the name?
We don’t know for sure what occurred but it has been reported that iCloud
Communication never registered its iCloud trademark with the US Trademark Office.
Of course, it’s an axiom of trademark law that trademark rights are established
through use, not registration, though registration brings many advantages and is
highly recommended in most cases.
One important clue suggests facts that might have tipped the balance in Apple’s
favor. As it happens, a cloud computing company in Sweden, Xcerion, actually
registered iCloud as a trademark on February 2, 2010. According to US Trademark
Office records, Xcerion assigned its iCloud trademark to Apple Computer on July 11,
2011, the month after Apple’ Worldwide Developer Conference in which it announced
its iCloud service and shortly after Apple was sued by iCloud Communications.
Perhaps this strategic acquisition of a trademark registration from a third party was
the lever necessary to force Apple’s nemesis into submission.
Schein & Cai LLP, focused business and intellectual property law firm advising
startups and established companies in the Silicon Valley and beyond, including San
Jose, Santa Clara, Mountain View, Sunnyvale, Morgan Hill, Oakland, San Francisco,
Palo Alto, San Mateo, Santa Cruz, South San Francisco, Daly City, Cupertino,
Saratoga and Emeryville.
Find us at www.sacattorneys.com.
The New Patent Law, Small Business and Individual Inventors
The debate continues to rage over the America Invents Act,
recently signed by President Obama, the first major revision to
US Patent Law in more than half a century. Is it good for
innovation or bad? Does it favor small business or large?
Steve Perlman, a serial entrepreneur credited with inventing QuickTime and WebTV,
and currently CEO of OnLive, a game streaming service, recently offered his opinion.
Perlman sees little benefit for the small guy in the newly revised patent system.
Under the old law, an individual inventor or small business could attempt to prove in
court that they had been the first to invent patentable subject matter that a larger
or more powerful company was claiming as their own. But now, because the US is
adopting the first-to-file rule, which grants patents to the first inventor to file for the
patent, rather than the first to invent, there is concern that small inventors will be at
a disadvantage because they often try to shop their patents before filing, or may not
have the money to pursue a patent application which can be costly.
Perlman also states that the new law does nothing to prevent so-called “patent
trolls” from litigating as a business strategy. Patent trolls are companies, often
formed for the purpose of patent litigation, that acquire or license patent portfolios
not to use them for manufacturing products, but as swords to sue other companies
whose products arguably infringe. These efforts can be financially rewarding,
producing legal settlements and judgments. But critics argue they do little for
innovation and economic growth. Because of “patent trolls” legitimate companies
often acquire patent portfolios for defensive purposes, using money that might be
best spent elsewhere in order to avoid or protect against such lawsuits.
We’ll highlight counter arguments in future posts on this blog.
For more information on the America Invents Act and its impact on your business,
contact Schein & Cai.
Schein & Cai was recently named one of the Top US Patent Firm for 2010 by
Intellectual Property Today®. We assist companies in Silicon Valley and beyond,
including San Jose, Santa Clara, Mountain View, Sunnyvale, Morgan Hill, Oakland,
San Francisco, Palo Alto, San Mateo, Santa Cruz, South San Francisco, Daly City,
Cupertino, Saratoga and Emeryville.
Google And Oracle Are Trying To Settle Their Android Lawsuit
Oracle and Google are locked in a patent and copyright
infringement battle that involves Java software and the Android
mobile operating system. The Android mobile OS runs on 150
million mobile devices, with another 550,000 activated each day.
Oracle owns the Java software as a result of its 2010 acquisition
of Sun Microsystems and claims that the Android OS relies on
Java, and is being used without license.
Many observers believe the case will be resolved before trial, set to start October
31. Google, which is cash rich, may prefer to settle rather than risk an adverse
judgment. And Oracle, which is interested in generating license revenue to justify
the Sun Microsystems acquisition, especially since Sun’s hardware sales have been
falling, can’t get too greedy and demand exorbitant fees that would make Android
less competitive in the marketplace.
Thus the circumstances for settlement appear to exist. Now it’s a question of
whether the parties can agree on a number.
How much should Google pay Oracle as a license fee for each Android device
to settle Java related claims? According to a Business Week report, analysts at
Citigroup believe the license fee could be as high as $15 per mobile unit. But some
see this as too high, an amount that would slow the sale of Android devices. Other
analysts have suggested numbers ranging from less than $1 per device, to $10 per
device.
It will be fascinating to see if the parties can reach agreement without trial – and
what the magic number ends up being.
Schein & Cai was recently named one of the Top US Patent Firm for 2010 by
Intellectual Property Today®. We assist companies in Silicon Valley and beyond,
including San Jose, Santa Clara, Mountain View, Sunnyvale, Morgan Hill, Oakland,
San Francisco, Palo Alto, San Mateo, Santa Cruz, South San Francisco, Daly City,
Cupertino, Saratoga and Emeryville.
Fair Use Under US Copyright Law
Fair use is one of the most difficult concepts to apply under US
Copyright Law. It requires the application of general guidelines,
set forth in US Copyright Law, to the specific facts of each case.
It’s no surprise this process often leads to confusing, sometimes
contradictory results in seemingly similar cases.
As a legal principle, fair use acts as a limitation on the exclusive
rights of a copyright owner. The exclusive rights of a copyright
owner include (i) the right to reproduce (copy) the work, (ii) the right to distribute
the work, (iii) the right to prepare derivative works based upon the work, and (iv)
the right to display (or perform) the work publicly.
However, a third party may have a defense to copyright infringement for doing these
things if making “fair use of a copyrighted work . . . for purposes such as criticism,
comment, news reporting, teaching . . . , scholarship, or research.” 17 USC 107
The kicker is that courts are directed by statute to consider the following factors in
determining whether a particular use qualifies as fair use:
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted
work
One can see how factors such as these, which are general in nature, might lead to
varying even unpredictable results when applied by different courts to similar fact
situations. That’s why fair use under US Copyright Law is a fascinating area for
attorneys, even though it may be confusing and frustrating for their clients.
Schein & Cai can advise you with respect to all copyright matters. We assist
companies in Silicon Valley and beyond, including San Jose, Santa Clara, Mountain
View, Sunnyvale, Morgan Hill, Oakland, San Francisco, Palo Alto, San Mateo, Santa
Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.
Find Schein & Cai at www.sacattorneys.com.
The California Legislature passed SB 111 earlier this summer, a bill that would have made it a violation of the State’s Civil Rights Act for any business to adopt a policy that requires, limits, or prohibits the use of any language in or with a business establishment, unless the policy is justified by a business necessity. The Governor, citing the potential of costly litigation to small business, vetoed the bill.
This is not the first veto by the Governor in this legislative session of a bill that would have burdened businesses in the State. See our earlier post: California Governor Vetoes Bill That Would Have Required Commuter Benefits For Employees.
Some may be surprised by the Governor’s actions, and his concern about signing new laws favoring employees, minorities and others because of costly mandates or litigation risk for business. But in the current economic environment, the Governor seems to be taking a measured approach to the State’s business environment.
Schein & Cai can handle all of your employment law needs. Our attorneys have handled a variety of employment law disputes with great success and client satisfaction. We offer a free initial consultation.
Find us at www.sacattorneys.com.
YouTube, like many websites that permit users to upload and publish content, has policies under which a third party may provide notice to YouTube that it has a good faith belief that material (e.g. videos) appearing on the site infringe their copyright. Upon receipt of a proper notice, YouTube can shield itself from liability for copyright infringement with respect to such material if it responds expeditiously to remove, or disable access
to such.
After removing or disabling the allegedly infringing material, YouTube can also shield itself from liability to the person who posted the material online by promptly notifying such party of its actions. Counter notification procedures allow the party who posted the material to dispute the claim of copyright infringement which could result in YouTube reversing its actions and notifying the third party who alleged infringement that it will replace the removed material or cease disabling access to it.
The legal requirements surrounding these various notice and take down procedures are set forth in greater detail in US Copyright Law, 17 USC 512 (Limitations on liability relating to material online).
If you post videos to YouTube and receive notice that one or more of your videos is being removed because of a copyright infringement claim by a third party, what do you do? Here’s a handy How To Dispute Copyright Claims video, posted by a YouTube user, which explains how to access your YouTube account and contest a claim of infringement by providing counter notification using the tools and account features made available by YouTube.
The video is not legal advice but does show how to use your account features to accomplish this, assuming you’re on solid legal ground.
Schein & Cai can advise you with respect to all copyright matters. We assist companies in Silicon Valley and beyond, including San Jose, Santa Clara, Mountain View, Sunnyvale, Morgan Hill, Oakland, San Francisco, Palo Alto, San Mateo, Santa Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.