Avoiding Mistakes In International Branding-A Case Study

Posted on August 6, 2013 by ERIC WACHSPRESS

I am taking this opportunity to volunteer my services as trademark counsel to Microsoft Corporation

A year ago, on August 6, 2012, I blogged that Microsoft, in its efforts to come up with a name for its Windows 8 interface, i.e., the one without the Start button, was inspired by European transportation signs and so sought to name that interface AIRPORT.  The problem with this idea was that AirPort Extreme is Apple’s trademark for its Wi-Fi base station and AIRPORT is the subject of U.S. Trademark Registration Nos. 2,117,248; 2,640,080; 2,786,542 and 3,239,864, all registered to Apple. So Microsoft, sticking with the Euro theme in selecting a name for their new interface, transitioned to another mode of transportation, this time, rail, and named their interface, METRO. After all, what’s more European than the name of the Paris subway system? In fact at last year’s Consumer Electronics Show, Steve Ballmer, Microsoft’s CEO, introduced the METRO brand with none other than Ryan Seacrest. See http://youtu.be/5Kk0jhFjDsU This time Europe would prove to be more of a problem than an inspiration as a year ago the New York Times reported that a Microsoft spokesman announced Microsoft would no longer use the METRO brand claiming it had been intended to be used only temporarily. According to the Times piece, a German retailer, Metro, may have had concerns about Microsoft’s use of the name. According to Wikipedia, there is a German retailer called Metro, headquartered in Dusseldorf. Seehttp://en.wikipedia.org/wiki/Metro_AG They are the 5th largest retailer in the world and their Media Markt stores claim to be the #1 electronics retailer in Germany and Europe. Seehttp://www.mediamarkt.de/mcs/shop/unternehmen/geschichte.html

To paraphrase a 2000 hit by a certain well known pop artist, “Oops! I Did It Again” Microsoft got caught by another Euro brand and was forced to change another of its trademarks. This time the mark was SkyDrive, its cloud-based file hosting service. Introduced in 2007, by 2008 it was available in 62 countries and regions. Unfortunately, BSkyB, otherwise known as the British Sky Broadcast Group PLC, a London-based provider of satellite broadcasting, broadband and telephone services, had been in operation since 1984 under the SKY name. Also, unfortunately, not only was the SKY trademark in use for 23 years prior to Microsoft’s adoption of SKY as part of its SKYDRIVE trademark but SKY launched its own cloud storage service called STORE & SHARE on February 20, 2008.  After a British high court ruled this past June that Microsoft had infringed Sky’s trademark, noting that customers having problems with Microsoft’s product had called Sky’s help line in the mistaken belief that it was responsible for the SKYDRIVE service, Microsoft announced that it had agreed to change the SKYDRIVE name worldwide after an orderly transition period.

THE MORAL OF THIS STORY:  If you are either promoting or intend to promote a brand internationally, you need to conduct an international trademark search to determine if your mark is available for your use abroad before you start promoting your brand under that mark.

 

Posted in News | Tagged , , , , , , , | Comments Off on Avoiding Mistakes In International Branding-A Case Study

SPIES AND SPYWARE

Posted on July 4, 2013 by ERIC WACHSPRESS

I have in numerous prior blog entries touched on the issues involved in protecting your intellectual property from unauthorized disclosure. Doing so is critically important to keep your technologies, designs, marketing plans and even your sales figures out of your competitors’ hands where they can damage your business’ future prospects and its competitive edge. But what about keeping your information out of a government’s hands.

In my posting dated April 23, 2012 year entitled “Protecting Your I.P. While Abroad” I pointed out that the Chinese have installed key-logging software on visitors’ laptops which renders password protection useless and quoted a McAfee official as stating that if any employee’s device was inspected at the Chinese border, it can never be plugged into that company’s network again. Although Hong Kong is considered a Special Administrative Region of the People’s Republic of China, has a separate legal system from mainland China which is based on English common law, its defense and foreign affairs policies are set by Beijing, so it is highly possible that whatever secrets Edward Snowden had with him when he arrived in Hong Kong are now known to the People’s Republic of China. As for Snowden’s visit to Russia, in that same post I quoted a former counterintelligence official as stating, “If a company has significant intellectual property that the Chinese and Russians are interested in, and you go over there with mobile devices, your devices will get penetrated.” Maybe Snowden had sufficient expertise in computer security to outwit the Russians and Chinese, but as he intended to disclose secrets, it doesn’t make sense that he would take extraordinary efforts to protect those secrets from disclosure.

As for his disclosures, I noted just last March 4th that in 2008 Congress amended the Foreign Intelligence Surveillance Act to provide that when the government conducted electronic surveillance of communications between persons located within the U.S. and persons located outside the U.S. the particular targets or facilities to be monitored did not have to be identified and that the Director of national Intelligence could apply for a mass surveillance authorization by merely attesting generally to the Foreign Intelligence Surveillance (FISA) court that a significant purpose of the acquisition is to obtain foreign intelligence information and that that information will be obtained with the assistance of an internet, telephone or wireless provider. While the government was required to attest that its procedures were designed to ensure that the monitoring was limited to targeting persons believed to be located outside the U.S., it only had to reasonably believe they were located outside the U.S. and any acquisition of any communications between individuals located solely within the U.S. must not be intentional. The court order authorizing the government to conduct the surveillance may go on for up to one year and no probable cause determination was required.  In the case discussed in that blog, Amnesty International  USA v. Clapper, 638 F. 3d 118 (2nd Cir. 2011) the plaintiffs argued “[a]ll telephone and e-mail communications to and from countries of foreign policy interest—for example, Russia, Venezuela, or Israel—including communications made to and from U.S. citizens and residents could be monitored and no specific showing of probable cause nor judicial review was required. The government did not challenge that characterization in those proceedings.” It was also noted in that case that in 2008 the government sought 2,082 surveillance orders from the FISA court and the court approved all but one.

In addition, in 2006 Mark Klein, a retired AT&T Communications Technician revealed that at AT&T’s office in San Francisco his job included connecting Internet circuits to a splitting cabinet that led to a secret room in that office. Klein said the split circuits included traffic from peering links connecting to other internet backbone providers, meaning that AT&T was also diverting traffic routed from its network to or from other domestic and international providers That secret room contained a sophisticated data-analysis system that was off-limits to anyone without NSA clearance. The details of this may be found at http://www.wired.com/science/discoveries/news/2006/05/70944 dated May 22, 2006.

Hence, what Edward Snowden has disclosed should not have been too much of a surprise to anyone paying attention to these issues and reading the mainstream media.

And it is not just the NSA or the Chinese or the Russians who may be watching what you type on your laptop. A British company, Gamma International UK Ltd., makes a number of products. The following may be found on its website, “The scope of Communication Interception contains a vast field of technology where Gamma International provides the appropriate solution depending on the demands and environmental conditions of the client. The field covers the following areas and products; Satellite Monitoring (Thuraya, Inmarsat), GSM, GPRS, and UMTS Tactical Off-air Monitoring, Passive Monitoring of Telephone Lines and Trunk Lines, SMS Interception, Speech Identifying Tools, Data Retention and Link Analysis and Radio Frequency Monitoring.” See http://www.gammagroup.com/communicationsmonitoring.aspx Their product line also includes, “Remote Monitoring and Deployment Solutions … used to access target Systems to give full access to stored information with the ability to take control of target systems’ functions to the point of capturing encrypted data and communications. When used in combination with enhanced remote deployment methods, the Government Agencies will have the capability to remotely deploy software on target systems.” See http://www.finfisher.com/FinFisher/en/portfolio.php

It was reported in the New York Times last March 13th that researchers at the University of Toronto and at the University of California at Berkeley had uncovered evidence that some 25 governments including Australia, Britain, Canada, Germany, India, Indonesia, Japan, Mexico, the Netherlands, the U.A.E., and the U.S. had employed spyware sold by Gamma that could grab images off computer screens, record Skype chats, turn on cameras and microphones and log keystrokes and that this technology was, according to Gamma’s managing director, sold to governments to monitor criminals such as pedophiles, terrorists, drug dealers, kidnappers and human traffickers. However, in the case of Ethiopia, that spyware was disguised in e-mails that were specifically aimed at political dissidents. See http://bits.blogs.nytimes.com/2013/03/13/researchers-find-25-countries-using-surveillance-software/ According to Mozilla, “Gamma’s spyware tries to give users the false impression that, as a program installed on their computer or mobile device, it’s related to Mozilla and Firefox, and is thus trustworthy both technically and in its content. This is accomplished in two ways; (1) When a user examines the installed spyware on his/her machine by viewing its properties, Gamma misrepresents its program as “Firefox.exe” and includes the properties associated with Firefox along with a version number and copyright and trademark claims attributed to “Firefox and Mozilla Developers” and (2) For an expert user who examines the underlying code of the installed spyware, Gamma includes verbatim the assembly manifest from Firefox software. Through these means, that spyware was used against pro-democracy activists in Bahrain.

Obviously, vigilance is required to protect your business’ secrets or, If you’re a democracy activist, your anti-government activities. It may be time to go back to such tried and true methods as disappearing ink, paper that dissolves in water and sealing an envelope with wax. Except see http://www.nytimes.com/2013/07/04/us/monitoring-of-snail-mail.html

 

Posted in News | Tagged , , , , , , , , , , , , , , | Comments Off on SPIES AND SPYWARE

TRADEMARK ATTORNEYS GET BETTER RESULTS

Posted on April 15, 2013 by ERIC WACHSPRESS

The Wall Street Journal reported today, citing a study expected to appear later this year in the Stanford Technology Law Review, that “Trademark applicants represented by attorneys are 50% more likely to earn a stamp of approval from the U.S. Patent and Trademark Office than those who go at it alone.”

Posted in News | Tagged , , , | Comments Off on TRADEMARK ATTORNEYS GET BETTER RESULTS

THE FIRST SALE DOCTRINE AND IMPORTED GOODS

Posted on April 6, 2013 by ERIC WACHSPRESS

Section 106(3) of the Copyright Act gives the owner of a copyrighted work the exclusive right to distribute or to authorize the distribution of copies or phonorecords of it to the public by sale or other transfer of ownership, or by rental, lease, or lending. However, this principle is modified by what is known as the “first sale doctrine” which is embodied in Section 109 of the Copyright Act. That Section provides in part that, “Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” In Kirtsaeng v. John Wiley & Sons, Inc., No. 11-697 (U.S. Mar. 19, 2013) decided by the U.S. Supreme Court in March, the court held that the phrase, “lawfully made under this title,” applied to works created outside the United States.

If that latter principle did not apply, Justice Breyer, writing for the majority, pointed out, a legitimate purchaser of a video game made in Japan or a film made in Germany could be prevented from selling or giving away copies of that game or film. It is important to note the “first sale doctrine” applies to the owner of a particular copyrighted work. If you have in your possession software, which you have “licensed,” you are not the owner of it; you are merely a licensee, and the “first sale doctrine” doesn’t apply to you. Such licenses often restrict you to using that software on one computer except that you may make a backup copy for archival purposes or may limit you to using that software on two or three computers.

In this case, Mr. Kirtsaeng, a graduate student from Thailand attending the University of Southern California paid for graduate school by buying inexpensive English language textbooks in Thailand and reselling them in the U.S. John Wiley, a textbook publisher, sued him for copyright infringement and won a $600,000 judgment in a New York court. [Note Kirtsaeng is reported to have generated $900,000 in revenue from his textbook sales.] Kirtsaeng was ordered to turn over his golf clubs, among other possessions, as partial payment. In its March decision the Supreme Court threw out that judgment and held that the “first sale doctrine” applied to him.

The Motion Picture Association of America took issue with this decision complaining that now a studio could not release a movie on DVD in one market while the movie was still in theaters in the United States … without incurring the risk of the unauthorized importation of those discs to the U.S.

As for Mr. Kirtsaeng, after earning his doctorate in Math, he is teaching in Thailand. His Linked in page states he is a “Mathematician specializing in contact/symplectic geometry.” According to Wikipedia, “Symplectic Geometry” is a is a branch of differential geometry and differential topology which studies symplectic manifolds; that is, differentiable manifolds equipped with a closed, nondegenerate 2-form. I guess an M.B.A. was beneath him.

Posted in News | Tagged , , , , , , , | Comments Off on THE FIRST SALE DOCTRINE AND IMPORTED GOODS

AVOIDING PROVOCATIVE BRAND NAMES

Posted on March 5, 2013 by ERIC WACHSPRESS

Kia raises Irish ire with Provo car name

Posted in News | Tagged , , , , , , | Comments Off on AVOIDING PROVOCATIVE BRAND NAMES

YOUR PRIVACY AND YOUR FOREIGN COMMUNICATIONS

Posted on March 4, 2013 by ERIC WACHSPRESS

 

This is a follow-up to my earlier post entitled “Your Privacy and What’s On Your Hard Drive.” An alternative title to this post could be “The World May Be Flat but That Only Makes It Easier for the Government to Find You on the Grid.”

I must concede I was an avid viewer of “24,” particularly the second season. It was “appointment television,” a must watch every week to see if Jack Bauer and his CTU colleagues could prevent the next imminent terrorist attack on our soil. Jack and the CTU could not have succeeded in their efforts if they didn’t have the ability to position satellites to track people’s movements on the streets of Los Angeles or to instantly intercept their telephone calls. Of course, in reality, that series was fictional and no government agency known as CTU or the Counter Terrorist Unit exists.

However, the National Security Agency does exist and on February 26th the Supreme Court in a 5-4 decision held that the Plaintiff journalists, lawyers and human rights advocates who challenged a 2008 amendment to the Foreign Intelligence Surveillance Act lacked standing to sue, in other words, demonstrate that they would be harmed by that Amendment, for the reason that their fear that they would be subject to surveillance under the Act was too speculative. Because the Plaintiffs were denied the opportunity to challenge the constitutionality of that amendment before the Supreme Court on the ground that they lacked standing, the issue of its constitutionality was left undecided.

The case at issue, Clapper v. Amnesty International, is relevant to the ability of journalists to protect their sources and attorneys to protect the confidentiality of their privileged communications with their clients. The Plaintiff journalists involved in that case argued that if their communications with their sources were overheard, those sources’ identities, political activities and other sensitive information would be disclosed, which could potentially expose them to violence and retaliation by their own governments, non-state actors, and our own government. The attorneys involved argued that they risked disclosing litigation strategies and violating the attorney/client privilege if their communications with co-counsel, clients, experts and investigators were monitored. The journalists involved included Chris Hedges, a Pulitzer Prize winning journalist, and former reporter for the New York Times, who maintains regular contacts with academics, journalists, politicians and activists in such places as Iran, Syria and Palestine and the attorneys included attorneys for Guantanamo detainees, who in representing those defendants, need to communicate with their family members around the world.

In 1978, Congress enacted the Foreign Intelligence Surveillance Act which allowed the government to conduct electronic surveillance for foreign intelligence purposes, including surveillance of communications between persons located within the U.S. and surveillance of communications between persons located within the U.S. and persons located outside the U.S. The 2008 amendment did not change the law with regard to the former situation, which required that a federal officer has to submit an application, approved by the Attorney General, that describes the individual intended to be monitored, a basis for believing that that target was a foreign power or an agent of a foreign power, that the target was using or was about to use the facility at which the surveillance was directed, e.g., cell phone, telephone line, computer, e-mail, computer network, ISP, etc., procedures for minimizing the intrusion to privacy, the nature of the information sought, they types of communications intended to be monitored and a certification that a significant purpose of the surveillance was to obtain foreign intelligence information and that the information could not reasonably be obtained by normal investigative techniques as well as the period of monitoring involved. A Foreign Intelligence Surveillance Court judge had to approve that application agreeing that there was probable cause to believe both that the target was a foreign power or an agent of a foreign power and that the facilities or places monitored were being used or were about to be used by a foreign power or an agent of a foreign power and that measures were taken to minimize the acquisition and retention, and prohibit the dissemination of nonpublicly available information concerning non-consenting U.S. citizens or require that that information which is nonpublicly available and which is not foreign intelligence not be disseminated in a manner that identifies a U.S citizen without that person’s consent, unless necessary to interpret the foreign intelligence information, unless that information is evidence in connection with a past, current or future crime.

The 2008 amendment changed the law as follows. Particular targets or facilities to be monitored now did not have to be identified. Now the Attorney General and Director of National Intelligence could apply for a mass surveillance authorization by merely attesting generally to the Foreign Intelligence Surveillance (FISA) Court that a significant purpose of the acquisition is to obtain foreign intelligence information and that information will be obtained from or with the assistance of an electronic communication service provider, i.e., an internet, telephone or wireless provider. While the government still has to attest that the procedures are designed to ensure that the authorized monitoring is limited to targeting personas reasonably believed to be located outside the U.S., designed to prevent the intentional acquisition of any communication where the sender and all intended recipients are located in the U.S. and must not intentionally target a U.S. citizen reasonably believed to be located outside the U.S., the Court must accept that certification by the government if it meets the statutory requirements and must issue an order authorizing the government to conduct the surveillance and the monitoring may go on for up to one year. No probable cause determination is required or permitted. If the Court rejects the government’s application, the government can appeal the denial and during the pendency of the appeal, continue to conduct the requested monitoring, and, in exigent circumstances, the government may start wiretapping before applying for court authorization as long as it applies for authorization within 7 days and the FISA court cannot monitor the government compliance with that court’s authorization on an ongoing basis nor can it alter or revoke its previous surveillance authorization.

The Plaintiffs in the lower court in Clapper alleged that under the amended statute the government’s acquisition order could seek, for example, all telephone and e-mail communications to and from a country of foreign policy interest, e.g., Russia or Venezuela, including communications made to and from U.S. citizens and residents without a showing of probable cause; the government failed to contest that allegation. They believed that, because of the nature of their communications with their sources and contacts, that those communications would likely be “acquired, retained, analyzed and disseminated” under the surveillance scheme described above. As a result they “ceased engaging in certain conversations on the telephone and by e-mail,” which they asserted compromised their ability to cultivate sources, gather information and communicate confidential information to their clients and forced them to take such costly and burdensome measures as traveling to meet those sources and clients.  The attorney Plaintiffs argued that they were obliged to take those measures so as to not to breach their ethical obligation to maintain the confidentiality of communications about client matters. The Court of Appeals for the Second Circuit in Clapper wrote on March 21, 2011 that, “On these facts, it is reasonably likely that the plaintiffs’ communications will be monitored under [the above-described scheme]” and that “Conferring standing on these plaintiffs is not tantamount to conferring standing on “any or all citizens who no more than assert that certain practices…are unconstitutional” and granted them standing. In 2008 the government sought 2,082 surveillance orders and the FISA court approved 2,081 of them. The Second Circuit wrote that the avoidance by the Plaintiffs of e-mail or telephone communications were “not overreactions….[but were] appropriate measures that a reasonably prudent person who plausibly anticipates that his conversations are likely to be monitored, and who finds it important to avoid such monitoring, would take to avoid being overheard.”

The concept behind “24” was that every season of that show involved an imminent threat. What constitutes a threat sufficient to justify the federal government intercepting our telecommunications is today as legally ill-defined a concept as it was in that show’s scripts; accepted by the viewer in the latter case and left to be accepted by us as citizens in the former.

Posted in News | Tagged , , , , , , , , | Comments Off on YOUR PRIVACY AND YOUR FOREIGN COMMUNICATIONS

DIGITAL ESTATE PLANNING

Posted on January 29, 2013 by ERIC WACHSPRESS

Google yourself and you never know what you may find. According to My Life I live where I haven’t lived for two years, worked as a manager for a client for which I only provided brief representation and spent 2012 in Chowchilla, California, a city located halfway between Modesto and Fresno which I never visited. Access my bank account website and see all my statements for the past year and a half, access my credit card website and see all my statements for the past year, access my Gmail account and see all of my e-mail for the past few years. If I used Facebook extensively, my photo albums and my timeline would be visible as well as the names of all of my “friends.” My Netflix account lists all of my movie tastes. These third parties hold records of all of my communications, restaurants I’ve eaten at, flights I have taken, movies I have watched, roads I have traveled, as I paid for gas on my credit cards, as well as my social and professional contacts as found in my e-mail address book.

Everyone leaves a digital trail. An article in this month’s Washington Lawyer brings up an interesting issue. When you die with your digital history, what happens to it? Your remains may sit in an urn on the mantelpiece but your digital remains remain alive and well in numerous data centers and, unless you tell your survivors what your passwords and user names are, or your survivors are very good computer hackers, that digital trail remains and may contain important information for your survivors. For example, that “friends” list may want to know about your death or attend your funeral. And you won’t be around to insert that final entry on your Facebook page or update your status to “Deceased.”

What to do…let the executor of your will or a trusted friend or relative with some technical expertise know your user names and passwords. If you have a joint bank account your partner should know how to access it; same with any other on-line banking or investment sites that you regularly access. Assuming that you have nothing to hide and you regularly use Facebook, that social network may be an ideal way for your surviving partner to notify people of your untimely end and Facebook provides means to memorialize the deceased. If you have a Twitter account with a lot of followers 140 characters should be enough to do the same. Note if you have something to hide or your e-mail account includes privileged communications, e.g., attorney-client communications you may wish to consider disclosing that information to counsel. If the deceased individual’s digital trail contains trade secret information, such as that of her employer, that deceased individual’s employer is the owner of that information and disclosure to a third-party could subject the deceased’s estate to legal liability.

Also to consider are any assets that you have in digital form such as photographs, artwork, sound recordings, writings, family histories, or collections of objects that may be on your web page or hard drive or elsewhere on the cloud that may have significant monetary value in themselves. Not only might your survivor want to note your passing on Facebook but that that may be a good time for your personal blog or website to cease its existence as well. And those photographs, artwork, sound recordings, writings, family histories and collections of objects that may be on your web page or hard drive or elsewhere on the cloud may have another valuable place, at your funeral so family and friends may memorialize you. As for your iTunes or e-books, note that these are merely licensed by you and upon your death would revert back to Apple or Amazon, if that is the case.

Rules to consider here; (1) don’t put your password and user name information in your will as wills are public documents; (2) you probably want to limit access to that information until after your death, unless you are already sharing that information with a trusted individual such as your partner or employer (in the latter case if that information contains proprietary business information); (3) if you live in Connecticut, Indiana or Rhode island, a death certificate and proof of your appointment by an executor to see the on-line accounts of a deceased will give you access to those accounts and in Idaho, an executor or a personal representative has the right to control the deceased’s social media, text messaging and e-mail accounts; and (4) as noted above, you probably want to let someone know, e.g., your executor, partner, business partner or business successor about your digital trail and how to access it upon your demise as well as leave them instructions as to what to do with it. Otherwise, you may find yourself in Chowchilla for all eternity.

Posted in News | Tagged , , , , , , , , , , , , , , | Comments Off on DIGITAL ESTATE PLANNING

SECURING YOUR DATA BEYOND THE “CLOUD”

Posted on November 11, 2012 by ERIC WACHSPRESS

Whether you are uploading photos to SkyDrive, using Google Docs to “create and share your work online and access your documents from anywhere,” posting your calendar on Google Calendar, using Gmail, using iCloud to transfer content between your iOS devices or between those devices and your Mac, or using Carbonite to back up your computer, those documents, photos and other content are residing in the “cloud.” However, the cloud is not some ephemeral, amorphous place but rather, as the Carbonite web site assures its customers, a highly secure data center. Carbonite goes on to assure that its data center is temperature controlled, has an uninterruptable power supply, includes on-site emergency backup generators with guaranteed fuel contracts and enjoys tightly restricted personnel access with guards on duty 24 hours a day, 365 days a year.

To provide an uninterruptable power supply, data centers rely on banks of diesel generators that emit exhaust, worldwide they use about 30 billion watts of electricity, equivalent to the output of 30 nuclear power plants; according to the New York Times, “At least a dozen major data centers have been cited for violations of air quality regulations in Virginia and Illinois alone, according to state records. Amazon was cited with more than 24 violations over a three-year period in Northern Virginia, including running some of its generators without a basic environmental permit.” See http://www.nytimes.com/2012/09/23/technology/data-centers-waste-vast-amounts-of-energy-belying-industry-image.html?smid=pl-share But this story isn’t about the environmental impact of data centers; it’s about what your data, stored in a data center, is not protected against. It is about what happens when a superstorm, like Hurricane Sandy, strikes or a tornado just happens to touch down on the location of your data center. In the case of Hurricane Sandy, as of today, over 100,000 people are still without power two weeks later and gas rationing has been instituted. So maybe you shouldn’t put your data center in New York City; well, Google’s largest office and engineering center in the US outside of its Mountain View headquarters is in lower Manhattan and a building, built in 1929, that served as the hub for Western Union’s telegraph network, is a 943,000 square foot major hub for telecom connection in Manhattan, and the aforementioned New York Times article noted that Amazon has at least eight major data centers in Northern Virginia.

Now, common sense would seem to tell you that, after 9-11, the two places that you wouldn’t want to locate your most important data would be in the Washington D.C. area or in lower Manhattan…in fact the National Security Agency, which is headquartered just outside Washington, is planning to build its data center in Utah and the largest data center, including some 1.1 million square feet, is located about a mile South of my offices in the building that formerly printed the Sears’ catalog.  Grid power there is supported by more than 50 generators throughout the building, which are fueled by multiple 30,000 gallon tanks of diesel fuel and it uses more than 100 megawatts of electricity. Locating a data center in Chicago has some advantages; we don’t have hurricanes and the nearest major seismic zone is the New Madrid fault which is over 400 miles away. In the future, however, your data may be in Iceland. Data centers need a temperature range of 16–24 °C (61–75 °F) and humidity range of 40–55%  and what, as I noted above, is a lot of electricity. Well, except for the occasional volcano, Iceland has 100% renewable energy, and as it’s “Iceland,” cooling the servers involved is readily easy to do; no air conditioning isrequired. While, it is far away, making data latency a problem, a $300,000,000 undersea cable from New York to Iceland is scheduled to be completed within the next two years. BMW is already planning to move such computer intensive applications as CAD and engineering, as well as crash simulations, to Iceland’s new $700,000,000 data center.

But, there’s another place to store your computer’s data, e.g., your photos, music, calendar, important documents. For $100.00 you can buy a one terabyte portable external hard drive. And as long as you remember to back up that data on that hard drive, you don’t have to worry about hurricanes, tornados or power outages, unless they happen at your location. And if they do, there’s always the cloud. In other words, the lesson of Hurricane Sandy should be, don’t depend on the cloud-back-up your data onto your own hard drive and, just remember, if a wildfire or storm surge comes knocking at your door, don’t just grab the family photo album, grab that hard drive….actually nowadays, the family photo album is probably on that hard drive. You never know where the “cloud” actually is….it may turn out to be as ephemeral as a real cloud. Hard drive in hand; it will likely survive if you do and, if you don’t, you won’t really care, anyhow. Besides, redundancy never hurt anyone; it got us to the moon and back safely. Just ask Jim Lovell.

But this story isn’t about the environmental impact of data centers; it’s about what your data, stored in a data center, is not protected against. It is about what happens when a superstorm, like Hurricane Sandy, strikes or a tornado just happens to touch down on the location of your data center. In the case of Hurricane Sandy, as of today, over 100,000 people are still without power two weeks later and gas rationing has been instituted. So maybe you shouldn’t put your data center in New York City; well, Google’s largest office and engineering center in the US outside of its Mountain View headquarters is in lower Manhattan and a building, built in 1929, that served as the hub for Western Union’s telegraph network, is a 943,000 square foot major hub for telecom connection in Manhattan, and the aforementioned New York Times article noted that Amazon has at least eight major data centers in Northern Virginia.

Posted in News | Tagged , , , , , , , , , , , , | Comments Off on SECURING YOUR DATA BEYOND THE “CLOUD”

3-D PRINTING AND GUN CONTROL

Posted on October 10, 2012 by ERIC WACHSPRESS

In Woody Allen’s first film, “Take the Money and Run,” released in 1969, Woody Allen’s character (Virgil Starkwell) attempts to escape from prison by making a gun out of a bar of soap and is almost successful until he goes outside only to have that gun turn to suds.

In a case of life imitating art, the September 7, 1988 edition of the Chicago Tribune reported that an inmate at the Cook County Jail, wanted for three homicides in California, escaped from that jail using a bar of soap carved as a gun. He was subsequently captured in Ohio found sleeping in a car at a roadside rest area. Between his escape in Chicago and his apprehension in Ohio, that escaped inmate stabbed a person in an attempted robbery in Dearborn, Michigan and stole a 1984 Mustang from a car dealership during a test drive with a salesman. A former cellmate said he used to carve wax figurines.

In my October 20, 2010 blog entry I discussed how a technology known as 3-D printing can be used to create an object by stacking layers of plastic or metal material on top of one another.

This technology can enable inventors and developers of new products to build prototypes themselves while sitting at their keyboards quickly and relatively inexpensively.

It may also soon allow one to create a gun, a real working weapon, not a bar of soap, although, apparently, soap guns can be an effective substitute to real ones. The New York Times reported on October 7th that Cody Wilson, a law student at the University of Texas, is in the process of building a completely functional 3-D printed gun and posting the instructions online in the next couple of months. In his video, Mr. Wilson, describes the gun as the “world’s first 3-D printable personal defense system.”

According to the Times article, 3-D printers can be had for as little as $500.00. It points out that a plastic gun made in this fashion could be melted down after being used to commit a crime and reprinted as a statute of the Buddha, for example. Oh, and a plastic gun won’t be detected by a metal detector.

The National Rifle Association did not respond to a request for comment from the author of the article. See http://bits.blogs.nytimes.com/2012/10/07/with-a-3-d-printer-building-a-gun-at-home/

Posted in News | Tagged , , , , , , | Comments Off on 3-D PRINTING AND GUN CONTROL

SAUDI OBJECTIONS TO NEW GTLD’S

Posted on August 26, 2012 by ERIC WACHSPRESS

In my June 16th post titled, “New Domain Names Bring New Challenges,” I discussed some of the potential issues that could arise from ICANN’s approval of new generic top level domains, including such domains as .ADULT and .PORN. Well apparently the Saudi Arabian government, which through its Committee for the Promotion of Virtue and Prevention of Vice enforces Sharia law within that country, including ensuring that drugs and alcohol are not sold, that women are appropriately covered, that men and women that are spotted together in public are related, as well as banning the celebration of Valentine’s Day and the sale of Barbie dolls, also has noted the issues that could arise from these domains and has officially objected to the 163 of the new gTLD applications registered with ICANN.

Among the new gTLD’s that have been objected to by the Saudi Communication and Information Technology Commission are .VIRGIN (applied for by the Virgin Group) and .BABY (applied for by Johnson & Johnson).

The Saudi’s also objected to .SEX, .PORN, .SEXY and .DATING. They also objected to .HOT, although owing to the climate in Saudi Arabia stating that the population of that desert nation is “hot” would be a wholly innocuous statement.

Because of the religious concerns referred to in the first paragraph, the Saudis also objected to .WINE, .BAR, .VODKA, .PUB, .CASINO, POKER, .SUCKS, .TATTOO, .WTF, .BIBLE, .CATHOLIC and .ISLAM. The Saudis have an understandable objection to that last domain when one considers that one of the Saudi King’s titles is Custodian of the Two Holy Mosques, the two mosques being Masjid al-Haram in Mecca, which contains Islam’s most sacred place, the Kaaba, and Al-Masjid al-Nabawi in Medina which contains Muhammad’s tomb.

Any comments received by ICANN before September 26th concerning the new gTLD’s that have been applied for will be forwarded to independent evaluators.

Posted in News | Tagged , , , , , | Comments Off on SAUDI OBJECTIONS TO NEW GTLD’S

FAMOUS LOGOS PAST AND PRESENT

Posted on August 21, 2012 by ERIC WACHSPRESS

finance.yahoo.com/news/what-20-top-companies–logos-looked-like-before-they-were-famous.html

Posted in News | Comments Off on FAMOUS LOGOS PAST AND PRESENT

WHY YOU SHOULD DO A TRADEMARK SEARCH (MS-DOSn’t)

Posted on August 6, 2012 by ERIC WACHSPRESS

On July 9th I posted an entry about how Apple paid $60,000,000 for the right to use the iPad trademark in China.

On Friday, August 3rd, the New York Times reported on Microsoft’s efforts to find a new trademark for their new operating system. See http://bits.blogs.nytimes.com/2012/08/03/microsoft-drops-metro-name-for-new-product-look/?ref=technology That operating system, using tiles rather than icons, as well as a distinctive font, is intended to be the first OS that is cross-platform; it will look the same on Microsoft’s phones, tablets and PC’s.

Well, Microsoft had to come up with a brand for this OS and the Apple trademark was unavailable. So, they started looking for a name. According to the Times piece, since the “look” of those tiles and font was inspired by European transportation signs, the first name that they considered was “Airport.”  Oops, see http://www.apple.com/airportextreme/ Apparently, AirPort Extreme is Apple’s trademark for its Wi-Fi base station and AIRPORT is the subject of U.S. Trademark Registration Nos. 2,117,248; 2,640,080; 2,786,542 and 3,239,864, all registered to Apple.

So, Microsoft went looking for another Euro-style name to call its new OS and came up with METRO. After all, what’s more European than the name of the Paris subway system? In fact at this year’s Consumer Electronics Show, Steve Ballmer, Microsoft’s CEO, introduced the METRO brand with none other than Ryan Seacrest. See http://youtu.be/5Kk0jhFjDsU

Well last Friday, the New York Times reported that a Microsoft spokesman announced Microsoft would no longer use the METRO brand claiming it had been intended to be used only temporarily. According to the Times piece, a German retailer, Metro, may have had concerns about Microsoft’s use of the name. According to Wikipedia, there is a German retailer called Metro, headquartered in Dusseldorf. See http://en.wikipedia.org/wiki/Metro_AG They are the 5th largest retailer in the world and their Media Markt stores claim to be the #1 electronics retailer in Germany and Europe. See http://www.mediamarkt.de/mcs/shop/unternehmen/geschichte.html

Maybe, Microsoft should search Bing for trademark lawyers…

 

 

Posted in News | Comments Off on WHY YOU SHOULD DO A TRADEMARK SEARCH (MS-DOSn’t)

Letting Employees Use Their Own Smartphones At Work?

Posted on August 2, 2012 by ERIC WACHSPRESS

With enterprise favorite, BlackBerry, slipping in favor among consumers who wish to use their mobile devices to watch video and browse the web and purchase larger screen iPhone and Android devices to do so, many businesses are accommodating that trend by allowing their employees to use those devices rather than the company issued BlackBerry.

The result of this in the short-term should be happier employees and lower costs to the employer who no longer has to supply mobile phones to its employees. However, in doing this, the employer assumes certain risks. When an employer supplies mobile phones to its employees, it can control how they are used, make sure that they are secure and even include encryption features, if necessary.

Furthermore, in the event that there is litigation against the employer, electronic discovery may require that employees turn in their personal phones, which they now also use for business purposes, for inspection by their employer’s adversary. While much of the material on that phone may be in the cloud; e.g., Facebook postings and even calendar entries, contact lists and phone numbers as well as browser search histories may be discoverable.

In addition, in a labor dispute, because the employer now cannot shut down the enterprise network after hours; as it has no control over the employee’s personal phones, there is a risk that hourly employees may claim additional or overtime pay for e-mail written for their employers on their own time.

What should an enterprise do; (1) like the Pentagon (Even though International Data Corporation (IDC) reported on June 6th that BlackBerry only had a 6% market share, the Wall Street Journal reported a month earlier that the Pentagon had approved the latest line of BlackBerry phones for agency-wide use.), it can continue to supply phones to its employees. Most are not likely going to use their employer-issued BlackBerry to play games or watch videos, (2) include a requirement that the employee sign off to use his personal mobile device for business purposes, similar to checking out a library book, and sign in to indicate that that device is no longer being used for business purposes (This could be done in the evening or prior to an employee going on a trip where use of the device will be necessary for business purposes and upon an employee’s return), or (3) in the company’s personnel manual, also signed off by the employee, require that the device only be used during regular work hours, and if used on the premises during those work hours, used only to check the enterprise’s business accounts. As reported in yesterday’s Bloomberg news, such requirements may be difficult to enforce. See http://www.bloomberg.com/news/2012-08-01/missile-defense-staff-warned-to-stop-surfing-porn-sites.html

Posted in News | Tagged , , , , , , , , , , | Comments Off on Letting Employees Use Their Own Smartphones At Work?

TRADEMARK ABANDONMENT AND BAND NAMES (CONT.)

Posted on July 9, 2012 by ERIC WACHSPRESS

On April 15, 2010 I wrote on the topic of choosing band names.

Yesterday, a client of mine, who saw an early 1960’s Motown musical act, The Marvelettes, perform in Vegas on July 9th asked were there any original singers from that group in the performance and did there need to be any original singers in the group for that group to call themselves by that name.

This led me to consider another early 1960’s musical act that is performing this summer, namely the Beach Boys.  Formed in 1961, the group originally was made up of the brothers, Brian, Carl and Dennis Wilson, their cousin Mike Love and friend Al Jardine. Carl Wilson was to subsequently die of lung cancer, Dennis Wilson drowned, and of the original band only Brian, Mike Love and Al Jardine are still performing as the Beach Boys. Are they the Beach Boys?

The federal Ninth Circuit Court of Appeals, whose jurisdiction covers the states of California and Nevada among others and is headquartered in San Francisco, ruled in a 2006 decision, Electro Source, LLC v. Brandess-Kalt-Aetna Group, Inc., that “even a failing business retains rights in its trademark until it shuts its doors or ceases use of its marks. Abandonment of a trademark requires both a cessation of use and the absence of the presence of intent to resume use. According to the Ninth Circuit any “legitimate commercial transport or sales of trademarked goods, even for a failing business, are sufficient to defeat a claim of abandonment.”

In the case of the The Marvelettes, none of the performers on stage are the original members of the group. The reason this is possible is that Motown owns the rights to The Marvelettes name, although it did not formally register that name as a service mark with the United States Patent and Trademark Office and as its successor entity continues to use it for commercial purposes, that entity may claim rights to that name. [Note the founding members of the group, Katherine Shaffner and Gladys Horton, continue to receive royalties for sales of Marvelettes recordings.] Note also that they filed an application to federally register The Marvelettes service mark for audio and video recordings by a performing group and for entertainment services in the nature of live musical concerts and stage performances in 2008 and that that application is being opposed by one Larry Marshak, a 1970’s promoter who used that mark for groups staging live performances under his management under that name, none of the members of which were members of the original Marvelettes. A New York U.S. District Court ruled against Marshak’s claim of ownership of The Marvelettes name this past May 11th. Note also that this wasn’t Marshak’s first attempt to claim ownership rights in an early 60’s band name. In a 1999 U.S. District Court for the District of New Jersey decision in which Larry Marshak claimed the rights to “The Drifters” service mark, that court held that Larry Marshak had no legal rights in the mark.

So the answer to the question posed at the top of this article, is, a band doesn’t need to include its original members to be that band. Caveat Emptor!

Posted in News | Tagged , , , , , | Comments Off on TRADEMARK ABANDONMENT AND BAND NAMES (CONT.)