Trademarks Are Everywhere in Dallas!

As in every city, trademarks are everywhere in Dallas.  Because I am here attending the Annual Meeting of the International Trademark Association,  it is only fitting that I show a few that I spotted on a brief walk in the sunshine:

"Intellectual Property Protection for Small Businesses" Presentation

On Tuesday, I had the pleasure of co-presenting a workshop at the "Beacon for Small Business Expo," sponsored by Beacon Mutual for its policyholders and the general public.  My presentation was titled "Intellectual Property Protection for Small Businesses."  Here is a copy of the slide deck.

My co-presenter was Ted Howell,  of Partridge, Snow & Hahn.  Ted spoke about strategies for protecting corporate assets in the broader sense, including confidential business information and relationships with customers and vendors.

FTC Updates Rules for Internet and Mobile Advertising

Does your company advertise online or on mobile devices?  Do you promote your company on Twitter  and Facebook?  If so, you should take note that the Federal Trade Commission last week updated its guidelines for digital advertising.  Titled: ".com Disclosures: How to make Effective Disclosures in Digital Advertising," the new guidelines reflect changes in digital advertising practices since the FTC issued the last set of guidelines in 2000.

The new guidelines consist of 28 pages of guidance and an Appendix of 22 mock ads illustrating the points from the guidelines.  Four key points emerge:

• Consumer protection laws apply to online and mobile advertising just as they do to print, radio and TV advertising.  Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices in advertising, is the touchstone here.
• It has always been the law that, if disclosure of information is needed to prevent an ad claim from being deceptive or unfair, the disclosure has to be clear and conspicuous.  The new guidance from the FTC affirms that the disclosures must be clear and conspicuous on all devices and platforms on which consumers may view the ads.  This means that if an ad would be deceptive without a disclosure, and the disclosure cannot be made conspicuously on a particular device or platform, then the ad should not run on that device or platform.
• The FTC now feels that disclosures should be "as close as possible" to the relevant claim.  Hyperlinks for disclosures involving key categories of information, such as pricing or health and safety information, are discouraged, and in any event should be labeled as specifically as possible.
• The FTC acknowledges that space constraints can be a challenge to advertisers on certain devices and platforms.  But companies still have to make the necessary disclosures clearly and conspicuously.  The use of pop-ups is not a good idea, because there are so many technologies that block pop-ups.

The new FTC guidelines close with some food for thought:  instead of spending time on making disclosures meaningful and conspicuous, perhaps advertisers should rewrite the ads so the disclosures are not needed at all.

Other helpful advertising guidance for small businesses:

--- Advertising FAQ's: A Guide for Small Business

--- Advertising and Marketing Basics

Governor Nominates 5 to Economic Development Corporation

Last Friday, Governor Chafee nominated five people to fill vacancies on the Rhode Island Economic Development Corporation (RIEDC):

• Shannon Brawley, Executive Director of the Rhode Island Nursery and Landscape Association;

• Dr. Nancy Carriuolo, President of RI College;

• Roland Fiore, President of South County Sand & Gravel Co., Inc.

• Jason Kelly, Executive Vice President of Moran Shipping Agencies; and

• George Nee, President of the Rhode Island AFL-CIO and an existing Board member.

In supporting the nominations, Governor Chaffee stated that “[t]hese nominees reflect my commitment to changing the focus and priorities of the EDC. We are going to do all we can to help existing Rhode Island businesses – many of them small businesses – succeed and grow. And we are going to continue to improve our economy by building upon Rhode Island’s strengths and assets and investing in the fundamentals, such as education. These nominees bring with them valuable experience in a number of our state’s key industries. This is a new direction for the RIEDC and, I believe, a more promising path to a stronger economy for Rhode Island.”

The nominees remain subject to confirmation by the RI Senate.  Chaffee's nominees expired last year because the state Senate never held confirmation hearings before adjourning.

While the position of Executive Director remains vacant, and the nominees remain unconfirmed, it may be difficult for the RIEDC to move forward with its mission to create jobs and help companies expand and relocate to RI.  Let's hope that politics will be set aside soon so that the RIEDC can get back to work itself.

Venture Investment Dollars in RI Companies Soar in 2012

Venture capital investments in New England rose to $790 million invested in 114 companies in the fourth quarter of 2011, according to the MoneyTree Report by PriceWaterhouseCoopers and the National Venture Capital Association based on data from Thomson Reuters.

Four of those companies are in Rhode Island, netting a total of $35,599,900.  Over the entire year, venture investments in Rhode Island companies totaled over $106 million, a huge increase over the $43.3 million invested in RI companies in 2011.

While investment levels in Rhode Island companies are improving, they are just starting to reach levels of a decade ago. The high mark was in 2000, when over $100 million was invested in 11 Rhode Island companies. In 2001, venture capital investments in Rhode Island companies totalled $46.9 million for the entire year.

At the same time, investment levels across the U.S.are on the decline.  Nationally, venture capitalists invested $6.4 billion in 968 deals in the fourth quarter, and a total of $26.5 billion in 3698 deals for the entire year.  This represents a decrease of 10% in dollars and a 6% decrease in deals over 2011.  The Software, Biotechnology and Medical Device sectors received the most investment dollars for the year.  Internet companies scored their second highest level of investment since 2001, with $6.7 billion being invested in 976 deals.

Locally, the four companies to receive investments in the fourth quarter of 2012 are: 

•    Illuminoss Medical, Inc. of East Providence, a company that is developing minimally invasive solutions for the stabilization and treatment of bone fractures, received an expansion investment from Foundation Medical Partners.

•    The NanoSteel Company, of Providence, received $10,000,000 in investments from EnerTech Capital and Fairhaven Capital Partners.  The NanoSteel Company develops nano-structured steel alloys designed to deliver superior performance.

•    PreCision Dermatology Inc., of Cumberland, received $25,599,900 in expansion investments from Essex Woodlands Health Ventures, Frazier Healthcare, Longitude Capital Associates L.P., and NovaQuest Capital Management LLC.  PreCision Dermatology is developing innovative therapies to physicians and patients that demonstrably improve the skin.

•    TranslateAbroad Inc., of Providence, a company that provides a mobile application that allows users to point their phone camera at any Chinese text (like a food menu) and receive real-time translations, received an early stage investment from 500 Startups L.P.

Let's hope 2013 continues the upward trend of more investment dollars to Rhode Island!

FTC Provides Privacy Guidance for Mobile App Developers

With about 100 new mobile apps being released every day, how do you keep track of how your personal information is being used?  Mobile apps have been notoriously slow in adopting privacy policies and user-friendly privacy settings.  After some recent pronouncements by the California Attorney General, the Federal Trade Commission issued a new Report on Mobile Privacy Disclosures and some best practice guidelines for mobile app developers last week..

While a great deal of the report is directed at platform developers (such as Apple, Google, Microsoft and Blackberry), there are some recommendations for app developers as well.  These include:

• Having a privacy policy and making sure the policy is available through the platform's app store
• Providing just-in-time disclosures and obtaining affirmative express consent when collecting sensitive data outside the platform's API (such as financial, health or children's data) or sharing sensitive data with third parties
• While app level disclosures do not need to repeat the platform level disclosures on data the app collects, if the app developer decides to share that data then the just-in-time disclosures and consents should kick in
• App developers need to understand the third party apps they integrate (particularly those that facilitate advertising and analytics) in order to provide truthful disclosures
• App developers should consider participating in self regulatory programs, trade associations, and industry organizations, which can provide industry wide guidance on how to make uniform, short-form privacy disclosures

The FTC also issued some tips to mobile app developers.  These are more in the nature of suggestions and best practices, such as understanding the platform and libraries you are using and how they collect data, and considering encryption for sensitive data. 

The thrust of the FTC's concerns is that privacy be incorporated by design, not by afterthought.  The FTC has demonstrated that it is serious about these issues, and has initiated enforcement actions against companies whose apps do not comply.  For example, the FTC recently settled with the social media company Path.  Path was collecting birth dates as part of the registration process, but its original app did not prevent children under 13 from registering.  Path caught the error on its own and revised the app to kick out children under 13 who tried to register.  But the FTC still enforced an $800,000 penalty for Path's violation of COPPA with its initial design, and is requiring Path to obtain independent privacy assessments every other year for the next 20 years.

The FTC publications, following the California Attorney General's pronouncements last month, make it clear the the state and federal regulators are watching the mobile industry closely.  All participants --- app developers, app platforms, and app advertisers --- should carefully review their privacy and data collection policies and those of the apps from which they collect information to make sure that the privacy practices are following the current guidelines and that the data collection practices are consistent with the privacy policies.

ICANN to Reveal New Generic Top Level Domains Tomorrow

Just a brief update of what is going on with ICANN's plan to add new top level domains (in addition to .com, .net. org, .biz, etc).

• ICANN has received over 1900 applications, generating in excess of $350 million in filing fees
• ICANN will reveal the complete list of applications and applicants tomorrow (June 13, 2012), but in the meantime some of the applicants have disclosed their applications
• There will be a process for lodging objections for concerns of trademark infringement or otherwise

After ICANN publishes the complete list of new gTLD applications, there will be a 60 day period in which anyone may file comments with ICANN concerning the applications.  There will also be an opportunity for third parties to file formal objections.

 

Once the list of applications is revealed, companies should review the list and determine if there are any proposed names that would infringe its trademarks or would otherwise be of concern.

 

More to follow after the complete list is revealed.