Archive for category Intellectual Property
I have a Texas business. Can I conduct business using another name?
Posted by David Leon in Business law, Intellectual Property on 17/05/2010
Yes. A business entity registered in Texas may use an assumed name to conduct business, provided that it registers the assumed name (Texas Business Organizations Code Sec. 5.051.) Also, the business should double check that the name does not violate the trademark of another.
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I’d like to sue a spammer who used my equipment. Can I do this while still protecting my trade secrets?
Posted by David Leon in Business law, Intellectual Property, Litigation and judgments on 14/06/2009
A party can request that a court provide protection for a trade secret or a vulnerability under Texas Business and Commerce Code Sec. 321.110.
PROTECTION OF SECRECY OR SECURITY. At the request of a party to an action brought under this chapter, the court, in the court’s discretion, may conduct a legal proceeding in a manner that protects:
(1) the secrecy and security of the computer, computer network, computer data, computer program, and computer software involved so as to prevent a possible recurrence of the same or a similar act by another person; or
(2) any trade secret of a party to the action.
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AUTHORITY TO BLOCK CERTAIN COMMERCIAL ELECTRONIC MAIL MESSAGES; QUALIFIED IMMUNITY
Posted by David Leon in Business law, Intellectual Property on 25/05/2009
Yes, Texas Business and Commerce Code Sec. 321.114 gives internet service providers and email service providers the authority to block emails that the ISP or email provider reasonably believes are in violation of 321.052 (the Texas anti-Spam laws). The provider must have in place a reasonably accessible mechanism to unblock the emails, should the sender believe s/he is in compliance with the law. The statute is listed below.
AUTHORITY TO BLOCK CERTAIN COMMERCIAL ELECTRONIC MAIL MESSAGES; QUALIFIED IMMUNITY. (a) An electronic mail service provider may on its own initiative block the receipt or transmission through its service of any commercial electronic mail message that the service provider reasonably believes is or will be transmitted in violation of this chapter, if the service provider:
(1) provides a process for the prompt, good faith resolution of a dispute related to the blocking with the sender of the commercial electronic mail message; and
(2) makes contact information for the resolution of the dispute accessible to the public on the service provider’s Internet website.
(b) An electronic mail service provider who complies with Subsection (a) may not be held liable for blocking the receipt or transmission through its service of any commercial electronic mail message that the service provider reasonably believes is or will be transmitted in violation of this chapter.
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I contracted with a company to send email ads for me, but I didn't know they violated the law. Can I still be sued?
Posted by David Leon in Business law, Contract law, Intellectual Property, Litigation and judgments on 25/05/2009
Yes, however, you may have a defense. Texas Business and Commerce Code Sec. 321.113 provides a limited immunity from prosecution in the event that a sender acted in good faith in hiring a sender to send compliant unsolicited commercial emails, but the company (without knowledge of the sender) violates the law. However, there may still be liability for violating another state’s laws, if the emails wind up in an out of state user’s mailbox.
QUALIFIED IMMUNITY FROM LIABILITY OF SENDERS. A sender may not be held liable for the transmission of an electronic mail message that violates this chapter if the sender:
(1) contracts in good faith with an electronic mail service provider to transmit electronic mail messages for the sender; and
(2) has no reason to believe the electronic mail service provider will transmit any of the sender’s electronic mail messages in violation of this chapter.
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Can I create a class action lawsuit to go after a spammer in Texas?
Posted by David Leon in Business law, Intellectual Property, Litigation and judgments on 25/05/2009
No. Sec. 321.109 of the Texas Business and Commerce Code specifically PROHIBITS a class certification under this chapter.
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My email servers were used by a spammer to send unsolicited emails. Can I go after the spammer?
Posted by David Leon in Business law, Intellectual Property, Litigation and judgments on 25/05/2009
Yes. If your business was injured by a spammer, then you may have a cause of action against the spammer by means of Texas Business and Commerce Code Sec. 321.106 which provides:
ALTERNATIVE RECOVERY FOR ELECTRONIC MAIL SERVICE PROVIDERS. In lieu of actual damages, an electronic mail service provider injured by a violation of this chapter arising from the transmission of an unsolicited or commercial electronic mail message may recover an amount equal to the greater of:
(1) $10 for each unlawful message; or
(2) $25,000 for each day the unlawful message is received.
Note, the injured party may instead bring an action for lost profits, in lieu of the statutory damages listed above. Either way, the injured party MUST comply with Sec. 321.107, and give timely notice to the Texas Attorney General.
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Is there a civil penalty in Texas for sending unsolicited commercial email (UCE or Spam)?
Posted by David Leon in Business law, Intellectual Property on 25/05/2009
Yes. Sec. 321.102 of the Texas Business and Commerce Code covers unsolicited commercial email (spam) that is sent within the state of Texas, in violation of Sec. 321.052. The statute provides:
VIOLATION OF CHAPTER: GENERAL CIVIL PENALTY AND INJUNCTIVE RELIEF.
(a) A person who violates this chapter is liable to this state for a civil penalty in an amount not to exceed the lesser of:
(1) $10 for each unlawful message or unlawful action; or
(2) $25,000 for each day an unlawful message is received or each day an unlawful action is taken.
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Is it a crime to send a sexually explicit unsolicited commercial email?
Posted by David Leon in Business law, Contract law, Criminal Defense, Intellectual Property, Litigation and judgments on 25/05/2009
Yes, however, Texas Business and Commerce Code Sec. 321.052(a) provides a potential “safe harbor” under Texas law. Failure to comply with 321.052(a) may lead to criminal liability under Sec. 321.101. TRANSMISSION OF MESSAGE CONTAINING OBSCENE MATERIAL OR MATERIAL DEPICTING SEXUAL CONDUCT; CRIMINAL PENALTY. (a) A person commits an offense if the person intentionally takes an action to transmit a message that contains obscene material or material depicting sexual conduct in violation of Section 321.052(a)(1).
(b) An offense under this section is a Class B misdemeanor.
Please note this is state specific, and there may be other state’s law or federal law implications as well.
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I want to send an unsolicited commercial email in Texas. How do I comply?
Posted by David Leon in Business law, Contract law, Intellectual Property on 25/05/2009
Texas provides a limited safe harbor for unsolicited commercial email (a/k/a bulk email or SPAM) Please note, that other states may have different laws that would apply to email sent to residents of that state.
See 321.051 of the Texas Business and Commerce Code. Sec. 321.052.
REQUIREMENT FOR TRANSMISSION OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGES.
(a) A person may not intentionally take an action to transmit an unsolicited commercial electronic mail message unless:
(1) “ADV:” appears first in the subject line of the message or, if the message contains obscene material or material depicting sexual conduct, “ADV: ADULT ADVERTISEMENT” appears first in the subject line; and
(2) the sender or a person acting on behalf of the sender provides a functioning return electronic mail address to which a recipient of the message may, at no cost to the recipient, send a reply requesting the removal of the recipient’s electronic mail address from the sender’s electronic mail list.
(b) A sender shall remove a person’s electronic mail address from the sender’s electronic mail list not later than the third day after the date the sender receives a request for removal of that address under Subsection (a)(2).
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Is it against the law to falsify (munge) internet headers or use fake subject lines when sending unsolicited emails?
Posted by David Leon in Business law, Intellectual Property, Litigation and judgments on 25/05/2009
Yes. Sec. 321.051(b) of the Texas Business and Commerce Code specifically addresses this:
(b) A person may not intentionally transmit a commercial electronic mail message that:
(1) is an unsolicited commercial electronic mail message and falsifies the electronic mail transmission or routing information;
(2) contains false, deceptive, or misleading information in the subject line; or
(3) uses another person’s Internet domain name without the other person’s consent.
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What is a “work for hire”?
Posted by David Leon in Employment law, Intellectual Property on 06/03/2009
A “work for hire” (also known as a “work made for hire”) is doctrine of intellectual property law governing ownership of material. The premise is that if a person or company hires another to create something under a work for hire arrangement, the person who hired the creator is the owner of the work. For example, let’s suppose Company A hires Joe Programmer to write a piece of software under a work for hire arrangement. The end result is that Company A owns the software, Joe does not.
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What is an intellectual property license? What is a royalty?
Posted by David Leon in Intellectual Property on 01/03/2009
In order to legally use the intellectual property of another, the owner of the intellectual property needs to give permission. Such permission is called a “license.” The payment for the license is typically the “royalty.”
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What is a trade secret?
Posted by David Leon in Intellectual Property on 01/03/2009
A trade secret is a type of intellectual property which gives a competitive advantage to the knowledge holder, and in which the knowledge holder takes steps to keep secret. For example, a confidential customer list could be considered a trade secret. Our firm can assist with trade secret litigation, trade secret contracts and the like.
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What is a copyright?
Posted by David Leon in Intellectual Property on 01/03/2009
A copyright is a legal protection afforded to an author of a creative work. For example, a photograph, drawing, or story could be subject to copyright protection. Although copyright protection is automatically afforded to author upon completion of the work, many additional rights are available if the work is registered shortly after creation. Additionally, registration is a requirement before filing a suit for infringement in federal court.
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What is a trademark?
Posted by David Leon in Intellectual Property on 01/03/2009
A trademark is used to designate a source of goods or services. Typically, a trademark is a logo, graphic or short phrase used to identify a product or company. Trademarks may be obtained at common law, and they may be registered with the United States Patent and Trademark Office. If a trademark is being used without permission, then a trademark infringement or dillution suit may be necessary in order to protect the mark. If your mark is “merely descriptive” of your product, then you may not not be able to register your mark (there is still a supplemental register, though).
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Can a business entity use a fictitious name?
Posted by David Leon in Business law, Intellectual Property on 27/02/2009
Yes. An entity may use a fictitious in most instances. The company must have permission to file the dba and the dba must be available. The company is still subject to other Texas laws regarding the use of trade names, and comply with trademark laws. Fictitious names allow a company to use a name other than its corporate name. We can help your business with the appropriate filings. Contact Us for more information.
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I have an idea. Can I patent it?
Posted by David Leon in Intellectual Property on 13/02/2009
An idea, in and of itself, may not be subject to patent protection. It should be reduced to a tangible form. It also must be a new idea (novel), non-obvious, and serve some kind of purpose before it can be subject to patent protection.
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What is a patent?
Posted by David Leon in Intellectual Property on 13/02/2009
A patent is a mechanism to protect an idea, invention, method or design. Patents are either novel creations or modifications to existing ideas. Prior to filing a patent application with the United States Patent and Trademark Office, it is recommended that a patentability search be conducted.
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Intellectual property law forum added
Posted by David Leon in Intellectual Property on 13/12/2008
We have received a number of frequently asked questions from our intellectual property law practice. This new forum will address frequently asked questions regarding intellectual property issues. Please feel free to comment on this forum, or email your questions to us by clicking here.
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