We’ve got another happy client!

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Our client, Chelsy, needed help from us with her auto accident case. She had such a positive experience, she agreed to share her thoughts with us. Her case was not unusual:

  • She had new, often debilitating pain, which impacted her livelihood.
  • She preferred to seek relief from “alternative” medical providers: massage, acupuncture, and yoga
  • She was overwhelmed by the system and wasn’t sure how to best proceed
  • The insurance company tried to ignore the extent of her pain and “soft tissue” injuries
  • Her medical bills were piling up and she needed to continue getting care

Chelsy came to us in time to bring a lawsuit, which let the insurance company know that she was serious about getting a full recovery. We were able to get her a good result that helped her pay her bills and secure future treatment.

What is UIM Coverage?

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If you’ve recently been in an auto-collision, you may have been asked whether or not you have “UIM” Coverage.

UIM or “Underinsured Motorist Insurance” (also sometimes called just “UM”) covers your medical bills, pain and suffering, and lost wages if your damages exceed the amount of coverage that the at-fault driver has. For example, if you are seriously injured in an auto-collision and have $150,000 in medical bills, and the at-fault driver only had coverage for $25,000, you have $125,000 in damages that exceed the at-fault driver’s coverage. If you have your own UIM Coverage in the amount of $300,000, you can make a claim to have your UIM Coverage pay all of your damages in excess of the at-fault driver’s policy up to your own policy limits.

UIM Coverage is important because many drivers in Colorado only carry the state minimum amount of insurance coverage – $25,000. If you are seriously injured by a driver who does not have adequate insurance coverage, you need to have your own coverage to protect yourself. Don’t leave yourself and your family at risk of an underinsured, or uninsured, driver!

Insurance Companies Use Your Facebook Against You

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If you’ve been injured and are involved in a claim against an insurance company, be aware that the insurance company will be looking at everything you post online in order to deny your claim! They will use all of your posts, tweets, and pictures to claim that you aren’t injured.

Setting your Facebook page to “private” doesn’t protect you. During a lawsuit, the insurance company may try to subpoena your entire Facebook page and Twitter account, even asking for all of your passwords and usernames so they can see anything private that you may have done.  And it’s legal!

If you’ve been in an accident, the safest thing for you to do is to de-activate your social media accounts during the claims process.  In the very least, be mindful of what you post, watch what others are “tagging” you in, and remember, social media is public!

Unavoidable Ice – Tips to Keep You Safe

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With colder weather, holidays, and ski season soon approaching, we will also be encountering dangerous icy conditions. Falling on ice is one of Colorado’s most common winter injuries and reasons for bringing a lawsuit. It takes less than two seconds from the moment that you slip to when your body hits the ground, leaving you vulnerable to serious injuries and broken bones.

Businesses in Colorado which are open to the general public have a duty to protect their patrons from dangerous ice build-up. When you’re out and about this winter, remember these following tips:

  • Stay on designated sidewalks and walkways.
  • Wear appropriate winter shoes with good traction.
  • Only walk in well-lit areas.
  • If you notice dangerous ice, tell an employee.
  • Walk slowly and keep your center of gravity over your front leg.
  • Keep your arms free to help you balance. If you are carrying heavy bags, ask an employee to help carry them to your car.

“Open Studios” Trademark Dispute in Boulder, Colorado

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Our guest contributor today, photographer John Uhr, posted this great analysis on Facebook of a current, local and much-publicized trademark dispute regarding the name “Open Studios.”

A quick background:  Open Studios, established in 1995,  is an arts-awareness and -appreciation organization based in Boulder, Colorado.  Recently, the organization has been quite aggressive in its legal efforts to protect the name “Open Studios” in the Boulder area by asserting its trademark rights.  This has impacted many artists in the area, including the Boulder Metalsmithing Association.   Recently, Open Studios and the Boulder Metalsmithing Association are parties to a trademark lawsuit in federal district court here in Colorado.  You can read Open Studio’s complaint, filed in August 2016, here.

FB John Uhr

October 10, 2016 at 11:17am ·

A funny thing happened this evening.  Completely by coincidence, I made the acquaintance of Open Studios board-member and attorney, Howard Bernstein.  He was discussing with Chris Brown (respected photographer and O.S. artist) a certain controversy surrounding Open Studios suing a small arts organization.  Since I have a passing interest in the matter, I asked Mr. Bernstein a number of questions I had been wondering about and listened carefully to the answers. We spoke for around 45 minutes and at the end I inquired whether Open Studios would abide by the results of the upcoming mediation if it should go against them. His answer (after assuring me that Open Studios would most certainly win) was an emphatic “why would we?” ……more on our conversation as I have time.

Ok, It’s later …

This article reports on an unexpected conversation I had with Open Studios lawyer and board-member, Howard Bernstein. The conversation took place at about 6 PM Oct. 10th at Chris Brown’s photography studio and in the presence of Chris and Mr. Bernstein’s wife, who listened with interest and occasional interjections. If Mr. Bernstein disagrees with my characterization of his position, I would welcome his input. These are his words and position to the best of my memory. I would also like to add that I hold no enmity toward Mr. Bernstein and believe he has the best interest of Open Studios at heart.

1) Mr. Bernstein believes that due to the their many years of use of the term, good works, etc. that Open Studios owns the right to the phrase “open studios(s)” for promotion of events in all of Boulder County. I asked if an individual artist (such as Chris Brown) would be allowed to post a sign saying “open studio” and he indicated that he would. I took this to mean that they only wished to control usage by organizations, but didn’t pursue the point.

2) While Mr. Bernstein seemed very anxious to make this issue about Boulder Metalsmithing Association and its director/founder Beth Merkel, it was apparent that he believes that any organization in Boulder County using the term “open studios” is violating OS’s rights and that allowing them to continue would be irresponsible. He would very much prefer that other organizations voluntarily stop using the term and that litigation is a last resort if they refuse to stop using it.

3) Mr. Bernstein believes that Boulder Metalsmithing’s attempt to trademark the term “open studios” was clearly an attempt to get exclusive rights to it’s use (keeping OS from being able to use it). I suggested that it was simply an attempt to ensure that the phrase could continue to be used by anyone, in the face of Open Studio’s demands. I said that I and everyone I had spoken to would be equally against anyone else claiming exclusive rights to the term.

4) I pointed out that literally thousands of organizations use the term “open studios”, many of them for far longer than Boulder’s OS and that I could find no instances of any of them suing to keep exclusive rights, but Mr. Bernstein insisted many times that they were “forced” to take legal action. It was clear to me during the course of our discussion that OS is pursuing exclusive rights to the term and will oppose any use of it, using legal means if voluntary compliance is not forthcoming in the misguided belief that they are protecting OS and their artists.

The Solution:

A search for “open studios” reveals that virtually all other of the thousands of open studio organizations attach their open studios name to their location. “Open studio” is a common generic phrase, while “open studios Cornwall” provides the uniqueness commonly valued in a trade name. For the same reason, common descriptive phrases like “farmer’s market”, “art fair”, “film festival” are attached to a location like Boulder County, Pearl St, or CU International when used as an organization’s name. I suggested that a simple solution for OS would be to attach their name to “Boulder” or “Boulder County”.  Mr. Bernstein emphatically rejected this idea seemingly because “open studios” had always been “open studios” and always would be. Tradition! The response is ironic because one of the main reasons Mr. Bernstein gave for preventing the use of the term by others is the potential for “confusion”.

Mr. Bernstein also seems to be overlooking a much greater potential source for confusion. If OS doesn’t claim “Boulder Open Studios” as a trade name, what prevents another organization from doing so, for instance, as a public forum for discussion of open studios issues and controversies? Talk about confusion!

It seems to me that Open Studios simply made an easily fixed mistake in not using the more appropriate, specific and descriptive name of Boulder Open Studios. Fixing this would do much more to avoid confusion than using a generic descriptive phrase and then being “forced” to prevent other organizations to stop using it.

To make things much easier for Open Studios to adopt this solution, I have purchased the tradename “Boulder Open Studios” and the domain name “boulderopenstudios.org”. I am offering these names to Open Studios free of charge if they will acknowledge that the term “open studios” is simply a common generic phrase which should be available for anyone to use.

What do you think of John’s solution?  Do you agree with Open Studio’s attorney or is this a case of trademark bullying?  This is certainly a case our intellectual property team will be watching!

Ghosts on Trial: Haunted House Lawsuits

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When your haunted house visit leaves you with more than just nightmares.

Now that it’s October, signs of fall are popping up all over Denver. Leaves are changing, pumpkins are popping up on front porches, and advertisements for haunted houses are appearing.
If you’re one of many haunted house patrons, you may love the fear and suspense that comes from these attractions. But not everyone leaves haunted houses unafflicted. If you come away feeling harmed, don’t blame the ghosts, clowns, and zombies, accordingly to recent court decisions.

In a recent lawsuit, an adult became frightened while visiting a local haunted house and attempted to flee the house to get away from a saw-wielding employee. During his attempted escape, he fell and injured his arm. The man then sued the haunted house. The lawsuit was eventually thrown out of court with the judge noting that “the point of the [haunted house] is to scare people.”

In another lawsuit, an adult sued a haunted house for emotional distress after seeing what she described as excessively gory and frightening scenes during the tour.

Being frightened is an inherent risk, and often the whole point, of visiting a haunted house. When a customer visits an attraction and becomes injured, either physically or emotionally, due to an inherent risk, it is difficult to recover damages. It is only when the haunted house unreasonably increases the normal inherent risks of a haunted house that they can become responsible for injuries. For example, if a large quantity of fake blood on the floor caused slippery conditions that led to a slip-and-fall injury, this may be actionable. However, simply the fright caused by such a scene would be considered an inherent risk.

If you venture out into one of Denver’s many frightening haunted houses this October, make sure you know what you’re signing up for.

Katy Perry’s Left Shark – Copyright

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In the last blog post, we discussed Katy Perry’s attempts to secure a trademark in “Left Shark” and a design image of a shark. That discussion focused on trademark, which protects phrases and images that identify and distinguish a source of goods or services.  Copyright, on the other hand, protects works of authorship, such as drawings, songs, musical recordings, or books.

Cease and Desist Letter

Florida-based artist Fernando Sosa markets himself as “Political Sculptor,” [http://politicalsculptor.com/] and creates irreverent 3D-printed figurines inspired by current events and world politics. Immediately after Katy’s halftime show, Fernando began selling Left Shark figurines.  On February 3 (the Super Bowl took place on February 1), Katy’s legal team sent Fernando a Cease and Desist letter asserting that he was violating Katy’s rights under U.S. copyright law.  They also sent a takedown notice to Shapeways, the website selling Fernando’s figurines, and Left Shark was promptly removed from the site. Fernando decided to make the fight public, explaining on his blog: “Usually when it comes to small business owners, when the lawyers come after you the outcome is usually pretty predictable.  I decided to finally take a stand and break the usual cycle of rolling over or giving into legal threats.”   He engaged the services of a prominent intellectual property attorney, NYU Law Professor Christopher Sprigman, to respond to Katy’s lawyers.  Fernando also shared the electronic files online so that anyone with a 3D printer would be able to create their very own Left Shark sculptures.

Cease and Desist Responses

Professor Sprigman’s response letters brought up two points of copyright law.  First, under U.S. copyright law, costumes and clothes are generally not copyrightable.  He asked Katy’s lawyers to explain why the Left Shark costume should be treated any differently. He also questioned whether Katy Perry actually was the author of any Left Shark works of authorship, citing to Katy’s interview in Elle magazine where she explained: In my show, I am boss daddy.  I am boss mommy.  They call me Boss.  Everything goes through my eyes; I call all the shots, 100 percent of it.  With the NFL, I have to be accountable to several levels of red tape.  There are many committees I have to go through for my costumes, the budgets of my show, every interview – everything, I have to report to somebody.  So I am no longer the boss; I have to relinquish that control.” The Copyright Act requires all transfers of copyright ownership to be in writing.  [https://www.law.cornell.edu/uscode/text/17/204]  Thus, Professor Sprigman brought up a cogent point that the Left Shark design may belong to another individual or the NFL. Katy’s lawyers answered Professor Sprigman’s first point by explaining that Katy’s team created multiple shark drawings in the process of designing the costumes, and those were copyrightable.  They also explained that “multiple elements” within the costume itself were copyrightable, though did not explain specifically which elements these were. Katy’s lawyers also quickly asserted that Katy did, “pursuant to the terms of multiple agreements,” own all relevant copyrights to her dancing sharks.

Unfair Competition

After receiving Professor Sprigman’s first letter, Katy’s legal team asserted in addition to copyright infringement claims, they would also bring claims under unfair competition law, because “it is clear that any commercial value that your client’s sculptures have derives solely from the public’s association of them with Ms. Perry.” Unfair competition is a set tort claims that can be brought against a party that causes an economic injury to a business through a deceptive or wrongful business practice.  In the intellectual property context, unfair competition often is an accompanying claim to trademark infringement and the attempt to use an already-established name, logo, or other identifying characteristic to deceive consumers into thinking that they are buying the product of a competitor.  

“Left Shark Belongs to Us All”

In the last exchange between Professor Sprigman and the Katy’s lawyers, the professor made a salient point about the collective capabilities of the Internet: “No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so.  The Internet decided that Left Shark’s flubbed dance moves were hilarious.  [The Internet] gave Left Shark his name, and then made him into a meme.  Left Shark isn’t really about Katy Perry.” In April 2015, Fernando retained a new attorney in Florida to continue work on his instinctual property infringement/unfair competition case with Katy Perry but, as of the date of this writing, any new developments between the two have yet to be publicly shared.

Photo taken by ShoreShot Photography

Katy Perry’s Left Shark – Trademark

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During 2015’s Super Bowl halftime show, Katy Perry dazzled a worldwide audience of 118.5 million [http://www.billboard.com/articles/news/6458264/katy-perry-super-bowl-halftime-record] viewers, the largest halftime show audience in history.  

During one segment of her performance, Katy was accompanied by several dancers in various beach-themed costumes, including two dancers who were dressed as sharks. When social media users commented en masse how the shark on the left (actually, Katy’s right) seemed to be incorporating its own moves instead of the planned choreography, a new Internet meme was born – Left Shark!  

He became a symbol of individualism and doing things your own way.

 

Katy’s Trademark Application

Katy’s lawyers wasted no time attempting to capitalize on the meme.  Eight days after the Super Bowl aired, they filed applications with the U.S. Patent and Trademark Office (USPTO) for the phrases “Left Shark,” “Right Shark,” “Drunk Shark,” and “Basking Shark,” as well as for a design of a smiling, cartoon, bi-pedal shark.

 

Action Letters

After a trademark application has been filed with the USPTO and gone through a preliminary review and entered into the offices data system, it is assigned to a trademark attorney.  The Examining Attorney who reviews an application will send what’s called an action letter if he or she has come across one or more problems with your mark or your application that warrant rejections.

Katy’s examiner, David Collier, found a number of problems with Katy’s shark design application.  

 

Substantive Rejection

Foundationally, to get USPTO approval of a mark as a trademark, the mark must function to identify and distinguish the applicant’s services from those of others and indicate the source.  However, Katy’s examiner found that the image of the shark only identified a particular character.  He wasn’t able to see evidence that the shark identified or distinguished Katy’s live musical and dance performances.  

 

Formal Rejection

Next, Katy’s design application also needed to include a specimen of her mark being used in commerce for live musical and dance performances.  Katy submitted a photograph of herself on stage at the Super Bowl with the shark-costumed dancer.  However, the shark in the photo and application’s shark cartoon design did not match.  

Said the examiner: “[T]he specimen displays the mark as a stylized depiction of a forward leaning shark in nearly a front profile with a portion of a dorsal fin, two pectoral fins and two legs and feet substituted for the caudal fin on the tail.  The shark has five gills, a full mouth with teeth and round eyes with eyelids; however, the drawing displays the mark as a stylized depiction of an upright shark in full front profile with no dorsal fin, two full pectoral fins and two legs and feet; the shark has three gills and the sharks mouth appears without teeth; the shark also has oval eyes without eyelids.”

The application for “Left Shark” fared better than the application for the design, but the examiner still wanted further clarification on the identity of goods for the marks.  For example, one of the classes of goods or services listed on Katy’s application was “Plush toys, action figures, figurines,” but the examiner wanted more for “figurines.”  Would they be made out of rubber?  Stone?  “[B]one, ivory, plastic, wax, plaster, wood?”

 

No Trademark for Katy?

The week Mr. Collier’s USPTO Action Letters were released, the media declared that Katy Perry had “failed” in her attempts to trademark the Left Shark and the Internet squealed with glee.  In reality, the orders clearly stated Katy’s legal team still has the opportunity to fix the identified issues.  If they are able to do so in the proscribed timeframe, her registrations will be published in the USPTO’s Office Gazette [http://www.uspto.gov/learning-and-resources/official-gazette].  Then, any opposers will have 30 days to file their oppositions with the USPTO.  If no opposers come forth, the marks will be officially registered with the USPTO as trademarks.

However, due to the high-profile nature of this application, it will be interesting who emerges to lodge complaints against the marks.  Will other artists or businesses see the USPTO opposition process a way to get some great publicity off Katy Perry and the grand saga of Left Shark?