Finally . . . jurisdiction over an eBay seller!

Evan Brown of Internet Cases has just posted a blog on a Michigan federal court which has exercised personal jurisdiction over out-of-state eBay seller. The case involved allegations of breach of contract, fraud and misrepresentation over the sale of artwork through an eBay auction.

In Dedvukaj v. Maloney, 2006 WL 2520347 (E.D. Mich., August, 31, 2006), the U.S. District Court for the Eastern District of Michigan exercised its jurisdiction based upon:

the seller’s statements that it would ship anywhere in the United States;
the fact that the seller did not deny buyers from Michigan the right to participate in the eBay auction;
the seller willingly communicated with buyers from any state;
the seller corresponded with the buyer multiple times via email and phone;
the intentional and misleading nature of the seller’s statements; and
the defendant's acceptance of payment from Michigan.

For these reasons, the court found that the eBay seller had purposefully availed himself to the benefits of conducting business in Michigan and was, therefore subject to jurisdiction therein. The court based its ruling in part on precedent, such as First Tenn. Nat’l Corp. v. Horizon Nat’l Bank, 225 F. Supp. 2d 816, 821 (W.D.
Tenn. 2002) (website stated the bank could lend in all 50 states) and Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 891-92 (6th Cir.
2002) (website stated it would do business in any state, specifically including Michigan).

In denying the seller’s motion to dismiss for lack of personal jurisdiction, the court stated "sellers cannot expect to avail themselves of the benefits of the internet-created world market that they purposefully exploit and profit from without accepting the concomitant legal responsibilities that such an expanded market may bring with it."

I, myself have negotiated and litigated multiple interstate internet disputes, some involving eBay. The hardest part of any case of this type is fighting over jurisdiction. The defendant is nearly always a fraudulent con-artist relying jurisdiction issues to retain their ill-gotten gains. The Dedvukaj ruling seems to be the best holding ever proffered on the subject. Dedvukaj may indeed be the beginning of the end for internet scam artists. Let’s just keep our fingers crossed that more courts adopt the blindingly obvious reasonableness of the Dedvukaj ruling.

Brett Trout

Other Related Topics:
eBay, Jurisdiction, eBay Jurisdiction, eBay Lawsuit, Online Auction

Iowa Judicial Branch Website Wins Award

The IOWA JUDICIAL BRANCH has won the Justice Served website award for being one of the top ten court websites in the country. The Iowa Judicial Branch earned the distinction for its "clean, well organized site that boasts video appellate arguments, appellate opinions, trial court records, payment of traffic & minor criminal offenses, email notification subscription, and professional regulations." Justice Served also recognized the Iowa Judicial Branch website for its free search and retrieval, with fee-based enhancements.

Justice Served awards this honor based upon Court Functionality, Web Functionality and Extras.

Court Functionality includes:

Court Tasks - Users should have the ability to perform court business on the Web without having to make a personal appearance at the courthouse. E-filing functionality earns a high rating.
Forms - Forms are available. Low rating if only available by call in, mail or fax; Medium rating if forms are downloadable; High rating if forms can be completed online.
Self Help - Easy to use instructions should assist users as to procedures and forms.
Financial Transaction - User should be able to pay fines and fees online using a credit card. A secured site is preferable and merits a high rating.
Indexing - The user should have access to a searchable database of court cases.

Web Functionality includes:

Links - The court site should have links to other Web resources of interest to users. Subjective High, Medium and Low ratings are given in this area.
Aesthetics - The site should have good design, color and layout. Subjective High, Medium and Low ratings are given in this area.
Navigation - Users should be able to easily navigate the site. Specifically, Website content should be easily accessible, without the need for extraneous mouse clicks, and navigation buttons should be intuitive and conveniently placed. An internal search engine should enable users to locate desired information within the site. Subjective High, Medium and Low ratings are given in this area.
Finding the Site - The court site should be listed with multiple search engines so users can readily find the site if they do not have the address handy.

Extras include:
High Impact - A special rating is given if a court site is geared to the public, as opposed to attorneys or other users of court services. A special merit rating will also be given if a site is marketed to and particularly useful to frequent court customers such as attorney services or trust companies.
Recent Updates - The site should indicate when it was last updated, and the updates should be frequent.
Feedback - Users should be able to voice their opinions and comments about the site and its content. A Low rating is given for freeform contact with only the Webmaster; a Medium rating is given if the freeform contact appears to be a court representative; a High rating is given to sites containing feedback forms online.

Congratulations to the Iowa Judicial Branch!

Other Related Topics:
Iowa Judicial Branch, Justice Served, Website Awards, Iowa, Iowa Courts

Brett Trout http://blog.bretttrout.com/

Should I register my logo?

So. You have a new logo and you want to protect it with a federal trademark registration. Should you register the words in the logo? The design? Both? A trademark registration on words covers the use of those words regardless of the font, size, color or configuration of the words. So why then would you not just register the words?

Registration of a logo protects you against someone using your logo with different words, or with no words at all. If your logo does not contain any words, or if your logo contains generic or descriptive (and therefore unprotectable) words, you have no choice but to register the logo.

If your words are unique and your logo is adaptable for use with other words (or no words), you should probably register both the words and the logo. On the other hand, if it would be very difficult for someone to use your logo without your words, or if your logo is generic i.e. (white block letters) your registration of the words alone may give you sufficient protection.

If you have any additional questions about logos or trademarks, contact your friendly neighborhood trademark lawyer who is probably dying share with someone the esoterica of trademark law.

Brett Trout

Other Related Topics:
Trademark, Logos, Trademark Registration, Trademark Attorney, Trademark Lawyer

Blawg IT now in SLOB Hall of Fame

Bizhack's John Koetsier has announced Blawg IT is one of the two latest inductees into the SLOB Hall of Fame. This "world-famous and highly-coveted" induction stands for:

1. Startling
You have something unique to say.
2. Loquacious
You say it frequently.
3. Outstanding
You say it really, really well.
4. Blogger
Umm ... yes ... you have to be a blogger.

One of the things John found that makes Blawg IT stand out from the crowd is how Blawg achieves great search engine results without having to resort to paid placement. Other SLOB Hall of Fame Bloggers include:

* Seth Godin's Blog
* Duct Tape Marketing
* Rough Type
* Signum Sine Tinnitu
* WeBreakStuff
* Horse Pig Cow
* Get Rich Slowly
* Publishing 2.0

I am humbled by the induction into this very small, very talented group of bloggers. I will humbly and proudly strive to continue to live up to the accolade. Thanks again John!

Brett Trout

Other Related Topics:
John Koetsier, Bizhack, SLOB, SLOB Hall of Fame, Blawg IT

A Kindler Gentler Microsoft - If We Don't Blow It

It is the dawning of a new area. Microsoft has irrevocably promised not to assert any claim of patent infringement against users and programmers of thirty-eight open source software programs.

Although one would be hard pressed to find any downside to this announcement, naysayers are still only proffering guarded praise and desperately searching for some sinister motive behind the new initiative. Hey guys (the Midwestern gender neutral flavor of course), let's not blow this. If you are not careful, looking this gift horse in the mouth may convince Microsoft to investigate alternatives to the kindler gentler approach.


Brett Trout

Other Related Topics:
Patent, Open Source, Microsoft, Software, Patent Infringement

Des Moines Lawpportunities

People have been asking fellow Des Moines blogger Rush Nigut and me a lot about our blogs and the success the blogs have been generating for us. Just Google Iowa Patent Attorney or Iowa Franchise Attorney and see what pops up. Rush and I have top five Google placements for several categories. We achieved this success not through paid advertising, but through blogging.

Rush and I have put in a lot of hard work and experienced a steep learning curve to get our blogs where they are. It has been fun, and we have met a lot of great people, like Mike Sansone and Sandy Renshaw, but it could have been a lot easier. All we needed was a good legal blog mentor.

Not surprisingly, legal blog mentors in Iowa are pretty few and far between. Given our joy of blogging, the extensive materials we have collected and refined along the way, and our extensive CLE presentation experience, Rush and I saw a great opportunity to host a Des Moines area CLE conference on Iowa legal blogging. Come find out what we learned along the way and meet some fellow Iowa lawyer bloggers-to-be. See how much fun it can be and why the "conversation" with other bloggers is the hidden jewel of any good blog.

Legal blogging has given us high Google rankings and significantly grown our respective practices. The best thing about blogging, however, is the people we have met and how they have enriched our lives. Stop by Lawpportunities and Yblawg or sign up for an Iowa conference to see what all the buzz is about!

Brett Trout

Other Related Topics:
CLE, Yblawg, Lawpportunities, CLE, Brett Trout

The Long Tail of Patents

Chris Anderson is the author of the wildly popular book The Long Tail: Why the Future of Business Is Selling Less of More. The Long Tail refers to the shape of the long, downward-sloping curve which graphs the number of different types of products available, against the demand for those products.

Bricks and mortar companies only have a limited amount of shelf space. These companies, therefore, only offer the most popular 20% of products that account for 80% of sales. If you manufacture the 21st% most popular product and, therefore cannot get your product in stores, your sales are likely a very tiny fraction of the sales of the 20th% most popular product.

The Internet has changed all that. Amazon, iTunes and Netflix provide virtual shelf space for 98% of the available products. Internet retailers capitalize on the fact that the additional 78% of products online account for half the revenue and two thirds of the profit. Online retailers are now honing in on better filters, search techniques and user and algorithm generated recommendation systems to put the consumer in front of that 1% of the additional 78% of products. Not only are these custom products of the most value to the consumer, they coincidentally generate the highest profits for the retailer.

Intellectual property, like a patent, is perfectly positioned to capitalize on these new long tail markets. Intangibles require no shelf space to market them. Indeed, nothing tangible need ever be transferred to confer benefits. In this regard, patents are even better positioned to capitalize on long tail markets than books, music or movies.

Historically, getting a patent was like buying a lottery ticket. If you were one of the lucky 2% of patent holders able to profitably market the product or garner a lucrative licensing arrangement, you stood to make untold millions. For the rest, even recouping their original investment was unlikely. With the Internet, however, things have changed.

Information and tools are the key to this transformation. More information is available about more patents, more quickly than ever before. Better filters, better search techniques and better user and algorithm generated watch and recommendation systems will emerge. As they do, companies will be able to secure patent rights, and the associated market monopolies, in synergistic product lines they might never have known even existed. More importantly, many of the 98% of inventors who would otherwise have been left penniless will have the opportunity to license their patents to those companies best suited to capitalizing on their inventions. The emerging "long tail" of patent licensing opportunities will change the existing patent lottery into the just compensatory system envisioned by the framers of the Constitution to promote the progress of science and useful arts.

Brett Trout

Other Related Topics:
Patent, Long Tail, Inventor, Patent License, Chris Anderson

The Best Patent Lawyer in the World

How do you find the best patent attorney in the world? You make one. Lawyers have been around for thousands of years. They have always been perceived as having access to information not accessible to the common man. Well not anymore. Almost any law, statute, regulation or fact available to your lawyer is now available to you online.

Now having all of that information is one thing. Using it is another. Lawyers still have the unique skill set needed to process this information. Having access to all of this information, however, gives you tremendous leverage. If your lawyer says something that concerns you, you can check it out for yourself.

The best part of having access to the same information as your lawyer is that it makes the competition for your business more aggressive. Twenty years ago lawyers basically offered clients a "take-it-or-leave" package. They would tell the clients "This is how I bill you, this is how I update you on what I am doing and this is the documentation I will provide you."

Today things are different. Service professions are customizing their services for individual customers. Instead of the service provider dictating what you get, YOU get to dictate what you get, often for no greater cost. If you are looking for a patent lawyer that bills weekly, itemizes every bill by the fractional hour and is on call via cell phone from 8am to 8pm, you have the right to demand that. If you want your patent lawyer's direct phone number to bypass the front desk, ask for it up front. If you want copies of every document the lawyer prepares on your behalf, demand it.

Now not every patent lawyer is going to provide every option you could ever want, shopping around with your expectations in hand will help you narrow the field. It will also help you find which patent lawyers are willing to accommodate your business and which are not. In my own practice, I find that customizing services for clients makes them much happier, which virtually eliminates headaches for me. If the clients knows that I am never "ducking" them, and that they can get in touch with me anytime, this knowledge in and of itself cuts my calls in half and completely eliminates the irate calls.

Obviously the two most important factors in choosing a patent lawyer are the lawyer's skill and your comfort level with the services they provide. Determining which lawyers are willing to accommodate your needs, however, is an easy way to eliminate relationships which could cause trouble down the road and to make, for yourself, the best patent lawyer in the world.

Brett Trout

Other Related Topics:
Patent, Best Lawyer, Best Patent Lawyer, Patent Lawyer, Patent Law

How to Pick a Trademark

You work with your marketing group and come up with a great name, but it is descriptive of your product and therefore not protectable as a trademark. Your trademark lawyer then shoots it down. What do you do? Do you let your trademark lawyer pick your trademark? No. Even the best trademark lawyer cannot pick your name for you. Trademark lawyers look for the easiest trademark to protect, not the best trademark with which to brand your product. Your trademark lawyer wants something that is unique. The key is to use your marketing department AND your trademark lawyer to pick a memorable AND protectable.

The easiest way to do this is to have your marketing department pick five potential trademarks. Have your trademark attorney then do a quick review of the potential trademarks against the United States Patent and Trademark Office online database. Of those that make the cut, have your trademark attorney do a comprehensive trademark search and opinion letter on the one or two “best” potential trademarks making the first cut.

To reduce the likelihood your trademark lawyer will shoot down your marketing department’s pick, make sure your picks are not merely descriptive or generic.

Trademarks fall into five categories:
Fanciful (Kodak)
Arbitrary (Royal)
Suggestive (No-Doze)
Descriptive (Red)
Generic (Apples)

The top three types of trademarks are all protectable; descriptive and generic trademarks generally are not. Make sure your first five selections from your marketing department are neither descriptive or generic. Bear in mind, however, while choosing a protectable trademark is important, choosing a marketable trademark is more important. Do not let your marketing department OR your trademark lawyer choose your trademark. Help them work together to select the memorable, protectable trademark that will serve your company well for years to come.

Brett Trout

Other Related Topics:
Trademark, Trademark Lawyer, Trademark Attorney, Choosing Trademarks, USPTO

Iowa Supreme Court Issues New Rules on Confidential Information

Rush Nigut has a new interesting blog post. Rush notes that the Iowa Supreme Court has promulgated new Rule 1.422(1)(a)(2) of the Iowa Rules of Civil Procedure designed to ensure that lawyers redacted or eliminate private information from court documents. The Clerk of Court, however, still does not review filings to ensure pleadings do not contain private information.

Rush notes that the new rule relates to:

1. Social security numbers.
2. Financial account numbers.
3. Personal identification numbers.
4. Other unique identifiers.

The rule states that is social security or financial account information is required only incomplete numbers should be included. No redaction is necessary for items deemed confidential by the Iowa Supreme Court, until such point as the information may be made public.

The new rule, effective November 1, 2006, allows a party the option of redacting the following information:

a. Driver's license numbers.
b. Medical information.
c. Employment history.
d. Personal financial information.
e. Proprietary or trade secret information.
f. Information concerning a person's cooperation with the government.
g. Information concerning crime victims.
h. Sensitive security information.
i. Home addresses.
j. Date of birth.
k. Names of minor children.

This law is especially important to intellectual property lawyers and their clients. Clients can lose rights to patents and trade secrets if an unwary lawyer makes them publicly available by including them in a publicly filed court paper. A nice reminder for patent lawyers and their clients. Thanks Rush

Brett Trout

Other Related Topics:
Trade Secret, Litigation, Iowa, Rush Nigut, Iowa Supreme Court

Computer Forensics in Iowa

In virtually any complex technology litigation the ability to obtain, preserve and process electronic discovery is the difference between winning and losing. Computer forensics is also crucial in protecting clients from cybercrime and providing authorities with the information they need to pursue criminals stealing from your clients. The FBI now places cybercrime as one of its top three priorities.

Presently, the only company offering computer forensic services in Iowa, and one of the few in the Midwest, is The Conley Group, Inc. I have personally worked with Tom Conley and have found him to be both thorough and professional. Something to keep in mind if you ever have a need for computer forensic investigation or electronic discovery.


Brett Trout

Other Related Topics:
Cybercrime, Electronic Discovery, Evidence, FBI, Iowa

New Book on Blogging

Ted Demopoulos, author of Blogging for Business has released a new book entitled What No One Ever Tells You About Blogging and Podcasting: Real-Life Advice from 101 People who Leverage the Power of The Blogosphere. The book is now available for presale on Amazon.com and will be "on the shelves" by Nov 1st. Best of all, your humble blog poster, Brett Trout, is a featured contributor to the book. My section deals with the patent, copyright, trademark and domain name issues surrounding blogging.

According to Ted, he is available for interviews, teleseminars, coffee, beer, dance contests, marathons, pin the tail on the donkey, and more. Check him out.


Brett Trout

Other Related Topics:
Ted Demopoulos, Blogging for Business, Brett Trout, Blogosphere, Blogging Book

The Wonderful Wizard of Laws

You go to a lawyer because s/he knows more than you do. S/he doesn't, but getting you to come back entails convincing you that they do indeed know more than you. One of the ways lawyers try to convince you that they know more than you is that they never tell you anything. They hem and ha and present everything in broad strokes. Afraid someone might discover they actually do not know anything, to either say "no" or sidestep the question with multiple alternatives. See, unlike doctors, you do not have to dig up the body to demonstrate the attorney made the wrong decision. It is all there in black and white for everyone to read.

Using a lot of fancy language and skirting the tough decisions therefore not only convinces the client the lawyer went somewhere the client has never been to learn these big words, but also avoids the liability associated with making a wrong decision. Bad lawyers, like the Wizard in Oz, are afraid that if you actually saw behind the curtain, you would never have hired them in the first place.

So how do you find a good lawyer? Well, you could ask someone you trust for a recommendation. Be careful, however. Unless the person has first hand knowledge of the attorney, the recommendation is probably worthless. A better way to pick an attorney is to find out what other lawyers think of that lawyer. If you live outside of Iowa, check Martindale to determine their rating. An AV rating is the highest rating a lawyer or law firm can have. Make sure you check the rating of the particular lawyer, rather than just the rating of the firm.

Iowa lawyers typically do not have their Martindale ratings posted, but they will know their own ratings. If they say they do not know their ratings, you can be pretty sure it is not AV. Be prepared to pay a little more for an AV-rated lawyer though. If you have a simple job to do, you may do fine with a younger attorney with a solid academic record. Many of these attorneys are very good, but have not had enough contact with other lawyers to develop a rating. For more complex or technical matters, however, it is best to have a seasoned well qualified lawyer involved.

While the forgoing methods may be good for narrowing down your search, the best way to pick an lawyer is to meet with them. Once you have the field narrowed down, go with your gut. If the attorney is responsive, answers your questions directly and has a proven track record doing what you need to have done, you should probably be okay. If the lawyer gives you their direct phone line, you can be relatively certain you will not have problems with them ducking your calls in the future. After a meeting or two, your gut will tell you whether you are truly dealing with a the Wonderful Wizard of Laws or simply a man behind a curtain.


Brett Trout

Other Related Topics:
Lawyer, Wizard of Oz, Attorney, Choosing an Attorney, Choosing a Lawyer

Is Your Patent Attorney Charging Too Much?

on August 22, 2006 The Appellate Division, Second Department, Supreme Court of the State of New York ruled In the Matter of Kroll,
that patent attorney Michael I. Kroll violated the Code of Professional Responsibility by charging excessive fees for preparing the paperwork for filing patent applications internationally.

In 2000, one of Kroll's clients, Lynn Svevad, complained to the United States Patent and Trademark Office (USPTO) about Kroll's fees. Although preparing a patent application itself may cost ten thousand dollars of more, the USPTO Office of Enrollment and Discipline (OED) found that for preparation of an application for international filing, patent attorneys in the New York City area typically charged $700. Kroll had been charging clients $11,500 for the same service. Court found that

The Appellate Division said the investigation found that the average fee charged in the New York City area for preparation of an application was $700. It also found that Kroll charged and collected $11,500 each, from seventy five clients, for the same service. The USPTO OED suspended Kroll for three years, from practicing before the USPTO, but suspended the sentence in light of Kroll's agreement to refund three hundred and fifty thousand dollars in fees. The Court publicly censured Kroll for his conduct.

You should expect a wide disparity of fees for services relying on a particular attorney's skill and expertise. A patent attorney with fifteen years experience will probably charge more to draft a patent application than a patent agent who just passed the patent bar. No two patent applications are the same. The thought is that an attorney bringing to bear fifteen years of experience would have greater insight and ability, allowing for the preparation of a "better" patent application, more likely to issue with broader protection. For administrative matters, such as preparing a patent application for international filing, a good legal assistant working under the eye of a seasoned patent attorney can probably fill out the form as well as the seasoned patent attorney. There are only so many ways to fill out a form.

Do not be fooled, however, you can probably not fill out the form yourself. One mistake and the application can go abandoned. Paying a patent law firm with good Martindale rating $700 for the filing would likely be some of the best money you ever spent. The key is to check around. Ask the lowest priced attorney why the price is so low. Ask if the job is a "fill in the form" type job or a "drafting a patent application" type job. Ask if any attorney working the project would file pretty much the same thing. Just make sure you are only paying the $400/hr fees for $400/hr service.


Brett Trout

Other Related Topics:
Patent, Patent Lawyer, Patent Office, USPTO, Patent Application

Employees Biggest Threat to Corporate Secrets

Palisade Systems, of Ames Iowa has just conducted an audit of recent data theft cases. Palisade concluded that over 65% of corporate data theft cases were attributable to the companies' own employees. Either through theft or mistake, these employees caused the loss of more corporate proprietary information than competitors, thieves and hackers combined. Patent applications, research and development activities, trademarks, trade secrets and other sensitive corporate data are all at risk from accidental or intentional acts of employees.

Rush Nigut of West Des Moines, Iowa law firm Sullivan & Ward, P.C. has been following the trend in his blog and has some simple solutions to reducing the impact of this very costly threat. Rush recommends a human resource audit, the outline for which is available free on his website.

The outline details the following steps for determining whether your company is at risk for either accidental or intentional theft of data by your employees:

1) Employee application and interview documents;
2) Personnel files;
3) Employee handbook;
4) Employee performance evaluations;
5) Employee discipline;
6) Employee job descriptions;
7) Safety policies and operating procedures;
8) Pay practices;
9) Benefit policies;
10) Required postings;
11) Board policies (if applicable);
12) Union contract (if applicable);
13) Employee Termination;
14) Employee exit interviews;
15) Employee privacy issues.

Most importantly, the audit details the necessity of having appropriate termination procedures in place, including employee handbooks and exit interviews, before a termination becomes necessary. Well crafted termination procedures are probably the simplest and least costly way to prevent disgruntled employees from causing malicious damage to your company's invaluable data. For more information, contact Rush.


Brett Trout

Other Related Topics:
Employment Law, Human Resources, Human Resource Audit, Corporate Law, Corporate Lawyer