Business

Earth Day 2021: Protect the Earth, Protect Your Work

Posted on by Gavin Law Offices

The first Earth Day took place in 1970, with organized groups in Los Angeles, Chicago, and many other American cities. Founded by Wisconsin Senator Gaylord Nelson, this now global event helped launch the modern environmental activism movement. Over the past 51 years the focus has grown from generating environmental awareness to spurring action for our natural resources. An early proponent of environmental care, Nelson paved the way for the widespread environmental protection measures that we see today.

Branding Sustainably

On almost any store shelf, there are trademarked goods related to Earth Day causes. There are several brands that dedicate their mission to being environmentally conscious. Patagonia and Seventh Generation are great examples of these types of brands. Interestingly, there are also a variety of protected labels, certifications, and other groups that promote sustainability.

Business and Planet

For instance, the movement “1% For the Planet” is a protected mark. The entity behind the mark works to connect businesses and environmental nonprofits to bring awareness and funding to protect natural resources. The name originates from businesses’ commitment to give 1% of gross sales each year to support the partner nonprofits. Many of these businesses are then able to use the 1% For the Planet mark to help strengthen their identity as an environmentally caring brand. The model is a win-win for business and the planet! Another example is Sustainable Forestry Initiative. The organization certifies sustainable foresting practices, which include biodiversity programs, water use measures, and forest health. Products such as paper bags and lumber use the protected mark.

Reforestation

Lastly, a popular nonprofit engaging with several businesses around the world is One Tree Planted. With a focus on global reforestation, the group makes partnership opportunities easy with different models centered on planting trees. Businesses can adopt the “One for One” where a chosen action, such as product sold, represents a tree. Individuals, teachers, and students, can also participate in tree planting opportunities on a smaller level. One Tree Planted is an internationally recognized organization with a large list of dedicated partners. Reforestation efforts significantly protect air, water, and climate, as well as improve social and health related concerns. One Tree Planted’s trademarked text and design represents their dedication to reforestation. Moreover, the mark’s placement on partnered organizations signifies a concrete promise to dedicate time and resources to planting trees.

“Greenwashing”: How does it affect me?

The increase of “green” and environmentally conscious protected intellectual property has gone hand-in-hand with the rise of the practice known as greenwashing. This is often seen when brands make misleading or false claims that their product or service is eco-friendly. Greenwashing is not only questionable from an environmental protection perspective, but it has grown into a major consumer protection concern. The U.S. Trademark Office has increasingly refused to grant registration to “green” trademarks. Marks like these originally faced hurdles to registration based on descriptiveness grounds but more recently are facing refusal on the basis of deceptiveness.  These objections can be especially difficult to overcome when applicants do not fully think these issues through in the initial filing strategy for a trademark application.

When it comes to deceptiveness considerations, brands can refer to the FTC’s Green Guides. Titled “Guides For The Use Of Environmental Marketing Claims” in 1992, the updated versions provide guidelines on how to market environmental claims and how to “avoid consumer deception” [Federal Trade Commission, 75 Fed. Reg. 63,552 (Oct. 15, 2010) (codified at 16 C.F.R. pt. 260)]. Over the past several years, the issues of greenwashing and ethical environmental marketing claims have grown into a substantial topic within the intellectual property community. Brand owners must always be aware of any possible sustainable implications in their mark and communicate to consumers properly. More importantly, those seeking environmental claims should be prepared to provide substantiation of any environmental claims that their marks and/or branding imply.

2020 marked an impressive fifty years of Earth Day. Each year it becomes even more imperative to include sustainability in our lives. Whether through economic partnerships or individual lifestyles, we hope to continue protecting and enjoying our great earth.

– Rina Van Orden, Esq. & Lily Taggart

IP Strategies for Your Online Business

Posted on by Gavin Law Offices

Transitioning into an online business may feel daunting. From operations to technology, there are so many potentially new processes. Business owners currently operating online can also benefit from a review of their operations and how they can best protect their work. Don’t let your intellectual property strategy hinder your success! Here are five perspectives of what you need to consider when engaging online:

Advertising and Marketing 

  1. Marketing your product or service is an integral part of any business, especially when operating online. Creating an advertising strategy that abides by legal guidelines may sound confusing but there are a few easy tips.
  2. Firstly, make sure that all claims are truthful and substantiated. If you’re selling socks, don’t say that they can fix a broken bone.
  3. Don’t forget that this also applies to social media. Not only you and/or your business, but anyone you may work with such as content influencers, with must adhere to these rules.

Trademarks

  1. Select a strong name and/or logo for your business. What is a strong name? A good rule of thumb is, if it describes what you’re selling, it’s probably not distinct enough.
  2. Make sure you take steps to decrease the likelihood of infringement. Before committing to a name to use commercially, consult with a legal team to search existing marks and assess potential risks.
  3. Will you conduct business in multiple countries? Keep up to date with individual country’s trademark requirements so you understand how to file.
  4. Lastly, make sure to review your contracts to be aware of which rights you have and which rights you are granting. You cannot grant any rights that you don’t have! If you need help deciphering a contract, reach out.

Copyright

  1. Is there content that you use on your website, social media, or mobile apps? Make sure you know whether you can use media like music, text, photos, art, video, or other content in various ways- personally, commercially, within whatever geographic restrictions. Additionally, follow “proper credit and/or attribution” requirements for the content.
  2. Are third-parties able to post content on your website? You may want to limit your liability against their potential copyright infringement by taking advantage of the Digital Millennium Copyright Act (DMCA)’s Safe Harbor. Let us know if you need help navigating these requirements.
  3. Is there a person whose name, likeness, or image you are using in connection with your business? There are right of publicity laws that you must follow as well as applicable state laws.
  4. An online entrepreneurs’ website is like their online storefront. Do you have a clear agreement with your website or software developer? Make sure any other tools created for the operation of your business, like mobile apps, are included in your strategy. A well-written contract is a good way to take preventative measures before the work is done to avoid later infringement or theft.

Privacy and Other Legal Considerations

  1. Be in the know when it comes to changing data privacy and internet laws. Specific state laws may apply to your business even if you are not physically located there.
  2. The California Consumer Privacy Act (CCPA) and Californica Public Records Act (CPRA) grants California residents greater control over their personal data and how businesses use that information. If you want to prepare your businesses for CPRA compliance, start by reviewing how your company collects data, and then contact a professional about how to make sure everything is above board and complies with the new laws.
  3. Virginia recently passed similar legislation known as the Consumer Data Privacy Act (CDPA). There are some differences compared to California’s legislation such as which businesses apply to the regulations.
  4. Finally, set up your online presence to comply with other regulations such as the Americans with Disability Act (ADA). For example, make online offerings available to those with disabilities. Other important legislation includes the Children’s Online Privacy Protection Act (COPPA) and the Communications Decency Act (CDA).

Protection Strategies

  1. Last but certainly not least, educate yourself and pursue all routes to protect your content.
  2. Seeking registration with the Copyright Office and/or the USPTO is a great first step in protecting your business and intellectual property.
  3. Another strategy which helps to prevent improper use is to include notices on your website, social media, and /or mobile applications.
  4. If you are concerned about improper use, explore all monitoring tools and consult with your legal team.

Whether you already conduct business online or not, the internet is here to stay. It’s become an invaluable economic resource, especially with the need for remote options in the past year. As such a fast and accessible way to work, make sure you take into account all your legal and commercial options as an intellectual property owner.

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

Virginia Becomes 2nd State to Pass Comprehensive Data Privacy Law

Posted on by Gavin Law Offices

On March 2nd, Governor Ralph Northam signed into law the Consumer Data Protection Act (“CDPA”), making Virginia the second state to enact comprehensive data privacy legislation.  The new law, which will go into effect on January 1, 2023, combines concepts from the California Consumer Privacy Act (“CCPA”) and California Privacy Rights Act (“CPRA”), as well as Europe’s General Data Protection Regulation (“GDPR”).  The CDPA grants numerous rights to residents of the Commonwealth to provide them with greater control over their personal data, and places new obligations upon covered businesses.  Specifically, the law gives Virginia residents (“consumers”) the right to access, correct, delete, and obtain a copy of their personal data, as well as the right to opt out of the sale or processing of their personal data by covered businesses for purposes of “targeted advertising.”[1]  The CDPA broadly defines “personal data” as “any information that is linked or reasonably linkable to an identified or identifiable natural person,” and excludes de-identified data or publicly available information.  Virginia’s new law also creates a special sub-category for “sensitive data” that includes: “(1) personal data revealing racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status; (2) the processing of genetic or biometric data for the purpose of uniquely identifying a natural person; (3) the personal data collected from a known child; or (4) precise geolocation data.”

Who is Covered?

The CDPA applies to businesses, whether physically located in Virginia or not, that conduct business in or target residents of the Commonwealth, and that either: (1) control or process the personal data of at least 100,000 consumers, or (2) derive over 50 percent of their gross revenue from the sale of personal data and control or process the personal data of at least 25,000 consumers.  In addition to excluding small business from its scope, Virginia’s law includes several other exemptions and provisions making it generally more business-friendly than Europe’s and California’s laws.   For example, the CDPA excludes non-profit organizations and institutions of higher education, as well as businesses that meet the above thresholds but are already subject to federal privacy laws such as the Gramm-Leach-Bliley Act and HIPPA.[2]  The law also defines “consumer” as “a natural person who is a resident of the Commonwealth acting only in an individual or household context. It does not include a natural person acting in a commercial or employment context.”  While California passed temporary business-to-business (“B2B”) and employment-related exemptions to lessen the burden of businesses’ compliance with the CCPA, the Virginia law considers and includes built-in exceptions for these types of personal data.

Requirements for Covered Businesses

Businesses subject to the provisions of the CDPA will need to develop processes to allow consumers to exercise the above-mentioned rights.  Covered businesses should also prepare to comply with the following obligations under the new law:

  1. The requirement that covered businesses provide a reasonably accessible, clear, and meaningful privacy notice (often referred to as a “privacy policy”) that includes specific information as outlined by the law.
  2. The requirement that covered businesses considered “controllers” put contracts in place with third party “processors” of personal data containing specific provisions related to the handling of consumers’ personal data.[3] Thus, businesses subject to the CDPA should adopt standard contractual language to include in any agreements with vendors that will touch personal data.
  3. The requirement that covered businesses limit the collection of personal data to what is “adequate, relevant, and reasonably necessary in relation to the purposes for which such data is processed, as disclosed to the consumer,” and that such businesses “establish, implement, and maintain reasonable administrative, technical, and physical data security practices to protect the confidentiality, integrity, and accessibility of personal data.”[4]
  4. The requirement that covered businesses conduct and document a formal “data protection assessment.” The assessment must include specific information related to businesses’ processing of personal data.  The Office of Attorney General may request a copy of a business’s data protection assessment under its investigative authority (which, for example, is likely to occur during its investigation into a covered business’s data breach).
  5. The requirement that covered businesses obtain affirmative consent from consumers before collecting and using “sensitive data.” Because affirmative consent is not currently required under California’s data privacy laws, many covered businesses will likely need to consider how they will obtain such consent and if/why they are processing sensitive data, specifically.

Enforcement

The CDPA will be enforced by Virginia’s Office of the Attorney General, which will have investigative authority and may seek injunctions and/or impose civil penalties of up to $7,500 per infraction for covered businesses that violate the law.  Any penalties and fees collected will go into a “Consumer Privacy Fund” used to support the work of the Office of the Attorney General to enforce the provisions of the CDPA.  Like the CCPA, Virginia’s new law also provides for a 30-day cure period for violations.  However, quite notably and unlike the CCPA, the CDPA does not include any private right of action.  Further, while the Virginia law does not contain language regarding rulemaking authority or procedures, it creates a “work group” to review the CDPA and issues related to its implementation.[5]  The work group’s findings, best practices, and recommendations regarding the implementation of the CDPA shall be submitted to the Chairmen of the Senate Committee on General Laws and Technology and the House Committee on Communications, Technology and Innovation no later than November 1, 2021.

Generally, the CDPA avoids several areas of uncertainty that lawmakers and California’s Attorney General, as well as covered businesses seeking to comply, encountered during the rollout of the CCPA.  Thus, Virginia’s law may provide a clearer model for consumers and businesses to follow, as well as for other states and possibly the federal government when developing their own data privacy legislation.  Gavin Law Offices, PLC will continue to monitor updates regarding the CDPA and other U.S. data privacy laws.

(This blog post is not intended as legal advice.  Please contact us for more information and assistance regarding your particular situation.)

[1] “Targeted advertising” means displaying advertisements to a consumer where the advertisement is selected based on personal data obtained from that consumer’s activities over time and across nonaffiliated websites or online applications to predict such consumer’s preferences or interests.  “Targeted advertising” does not include: (1) Advertisements based on activities within a controller’s own websites or online applications; (2) Advertisements based on the context of a consumer’s current search query, visit to a website, or online application; (3) Advertisements directed to a consumer in response to the consumer’s request for information or feedback; or (4) Processing personal data processed solely for measuring or reporting advertising performance, reach, or frequency.

[2] This language is considerably more favorable for businesses than a similar exception under the CCPA, which applies to only “personal information” collected, processed, sold, or disclosed pursuant to a specified federal law such as GLBA or HIPPA, and does not exclude the entity as a whole like the new Virginia law.

[3] Under the CDPA, “controller” means the natural or legal person that, alone or jointly with others, determines the purpose and means of processing personal data.  Meanwhile, “processor” means a natural or legal entity that processes personal data on behalf of a controller.  Both terms will be familiar to those acquainted with data privacy legislation, as they are borrowed from the GDPR.

[4] This “reasonable” safeguard standard is also included in the CCPA/CPRA and the GDPR.  The CDPA also includes language that “such data security practices shall be appropriate to the volume and nature of the personal data at issue.”  Thus, like existing data privacy law, Virginia’s will allow businesses to determine their own “reasonable” security practices and does not obligate covered businesses to put in place any specific data security measures.

[5] Specifically, the “Chairman of the Joint Commission on Technology and Science shall create a work group composed of the Secretary of Commerce and Trade, the Secretary of Administration, the Attorney General, the Chairman of the Senate Committee on Transportation, representatives of businesses who control or process personal data of at least 100,000 persons, and consumer rights advocates.”  Interestingly, this does not include representatives of businesses who derive over 50 percent of their gross revenue from the sale of personal data and control or process the personal data of at least 25,000 consumers.

 

–  Courtney Reigel, Esq.

Clarifying Non-Compete Law in Virginia

Posted on by Gavin Law Offices

In 2020, Virginia passed legislation creating prohibitory rules regarding noncompete agreements. This statute follows several other states which have created similar laws. In Virginia, employers cannot enforce noncompete agreements against low-wage employees. To fully understand and know what next steps to take for you or your business, let’s take a closer look.

This statute prohibits any agreement that “restrains, prohibits, or otherwise restricts an individual’s ability, following the termination of the individual’s employment, to compete with his former employer” (§ 40.1-28.7:8). This means there is potential to affect noncompete provisions in employment agreements, standalone restrictive covenants, and separation agreements. It does not prohibit confidentiality agreements and nondisclosure agreements.

What exactly is “low-wage”?

The term “low-wage employee” is a bit of a misnomer because it includes around half of VA employees. The statute defines low-wage employees as anyone who receives less than the average weekly wage per VA Employment Commission. This number will be updated quarterly and is subject to change but is currently approximately $59,124/year or $1,137/week. Low-wage employees also include “interns, students, apprentices, or trainees employed, with or without pay, at a trade or occupation in order to gain work or educational experience” (§ 40.1-28.7:8).

Another important aspect for employers is penalties for violation. A qualifying employee may sue an employer for violating or attempting to violate this law. The employee may receive “all appropriate relief” (§ 40.1-28.7:8) which may include:

  1. An injunction against the employer
  2. Liquidated damages
  3. Lost compensation
  4. Reasonable attorney’s fees and costs, including fees for expert witnesses

What employers can do:

Luckily, there are some measures that employers can take to avoid violation, provide a fair working environment, and still protect their professional interests. An easy first step is to post a copy or approved summary of the statute with other required employment notices. Employers must also take the time to review form non-compete agreements (and other restrictive covenants) to ensure compliance. Non-compete agreements for employees other than “low-wage employees” are enforceable if the employer can show that they are:

  1. Narrowly drafted to protect legitimate business interest
  2. Not unduly burdensome on the employee’s ability to earn a living
  3. Not against public policy

Due to other provisions of note not explored in this post, be sure to contact Gavin Law Offices for more information.  We continually monitor recent non-compete and trade secret legislation to better serve you and your business.

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

 

U.S. Trademark Office to Increase Filing Fees for 2021

Posted on by Gavin Law Offices

The United States Trademark Office recently announced that it will increase a number of its filing fees on January 2, 2021.  The increases apply to a wide variety of filings, including the fees for initial trademark applications.  We have included the most noteworthy increases below:

  • TEAS Standard Trademark Application: $350 per class
    Up from $275 per class
  • TEAS Plus Trademark Application (pre-approved goods and services): $250 per class
    Up from $225 per class
  • Section 8 (filed with both 8 & 15 and Renewal filings): $225 per class
    Up from $125 per class 
  • Petition to cancel/Notice of opposition filed through ESTTA: $600 per class
    Up from $400 per class
  • Initial 90-day extension requests for filing a notice of opposition, or second 60-day extension requests for filing a notice of opposition, filed through ESTTA: $200 per application
    Up from $100 per application
  • Petition to the Director filed through TEAS: $250
    Up from $100 

For the full list of fee increases, please visit: https://www.uspto.gov/trademark/laws-regulations/updated-trademark-ttab-fees-processes.

The U.S. Trademark Office will also implement a new fee for deleting goods, services, and/or classes from a registration after submitting a Section 8 declaration, but before the declaration is accepted, at a rate of $250 per class.

In light of the increased filing costs, Gavin Law Offices will work with clients who wish to take advantage of the lower filing fees to complete filings before the end of the year.  If you are considering a new trademark application or have maintenance filings due in the next year, we can help you complete such filings before January 2, 2021.  Please reach out as early as possible to ensure that we have enough time to get preclearance and/or the necessary documentation completed before the increase date.

  • – Rina Van Orden, Esq.