New Services Offered

My firm has expanded. I recently brought on board attorneys Kellie M. Delaney and Michael H. Ritter. Kellie is a relatively new attorney but has a great deal of experience in civil litigation, business and corporate governance. Mike is an experienced attorney in estate planning and telecommunications.

Mike and Kellie are not only fine attorneys but are very experienced in the business world.  They bring a more practical business sensibility in their approach to our clients' issues. 

Mike and Kellie will add considerable depth to the Law Offices of Eric D. Morton. We will provide greater services in the fields of real estate, litigation, estate planning and telecommunications. In addition, we are experimenting with ways to revolutionize the practice of law through technology and close collaboration with other attorneys and professionals.

Check out our website and our new practice fields.

Estate Planning

Litigation

Real Estate

Telecommunications

As always, we are dedicated to providing our clients with responsive, quality and cost-effective legal service.   

True Stories: IP registrations work

In the past week, I wrote demand letters for two clients whose intellectual property rights were being violated.  We received instant and complete success in both cases.

In one instance, a former employee was using my client's copyright protected materials.  I sent the former employee a demand letter to cease and desist, to destroy all materials in her possession and send us list of all such materials and a list of all persons to whom she distributed the materials.  The former employee complied with our demands, completely, within two hours. 

In the other case, I wrote a demand letter to a company that was offering a service that was identical to my client's service and was doing so under a brand name that was so close to my client's service name that it constituted infringement.  The other company's CFO called me immediately after receiving my letter and told me that they would stop using the infringing name.

The key in both cases was registration.  In the first instance, I trained my client to register its copyrights and the client did so.  The former employee could have been sued for violating the Digital Millennium Copyright Act and faced enormous exposure to a court award of damages and attorneys fees.

In the second instance, my client had a Federal trademark registration for its name.  The infringing company faced great exposure to a suit for bad faith infringement.

Over the years, I have urged my clients to register their copyrights and trademarks.  Having such a registration gives a tremendous advantage to the owner of such intellectual property.  These cases show the leverage that the owner of a copyright or a trademark can have.

Creative Commons - a good copyright resource for Internet publishers

A difficulty for creative persons on the Internet is that they want their art/content to be widely distributed (go viral) but still want attribution.  Traditional copyright law makes such distribution difficult since each person copying the such content would need to explicit permission of the owners.

A non-profit organization has started a web site called Creative Commons that provides the owners of copyright protected work (art, photos, articles, blogs, etc) with standard licenses that allow dissemination of the material on the Internet without the loss of attribution. 

Owners of copyrights can select how much of their material can be used - with and without attribution.  The owner can also select whether or not derivative works can be created from their work.
I recommend it to bloggers and anyone who would like their work to be re-distributed on the Internet.

Of course, if you did not want your work to be redistributed, then these licenses would not be appropriate.

Great Article on Importance of Boards of Directors

R.J. Kelly of the Wealth Legacy Group wrote a great article on the importance of a good board of directors for privately held corporations.  Click here for article

Indian Tribes are Immune from Lawsuits

A little known fact is that American Indian Tribes (and their economic enterprises) can't be sued. The tribes enjoy sovereign immunity from lawsuits.  Federal and state courts do not have jurisdiction over them.  A definitive case was the Kiowa Tribe vs. Oklahoma Manufacturing Technologies.  The Kiowa Tribe defaulted on a promissory note and was sued in state court.  The lower courts found the tribe was within the jurisdiction of the state court for off-reservation economic activity.  The U.S. Supreme Court reversed and held that the tribe was immune from suit.

In recent years, Indian tribes and their casinos, in particular, have become major economic forces.  There are several Indian casinos in and around San Diego County.  Anyone contracting with them cannot enforce those contracts normally.  The tribes can sue however, just like a foreign entity not subject to U.S. jurisdiction can bring suit in U.S. courts against U.S. persons.

The exceptions are very explicit contract terms that waive sovereign immunity and/or arbitration clauses.  Anyone contracting with an Indian tribe or any entity owned by a tribe must use particular care in forming the contract with that tribe.

Social Media Is Advertising

Advertising laws are now being applied to social media. Any business with a Facebook account or is on Twitter must understand that those means of communication are legally considered advertising.

I attended a great telephone seminar today that was sponsored by the Intellectual Property Section of the California State Bar regarding advertising law. Among the many topics covered was social media as used by businesses.

The Federal Trade Commission and the courts have held that advertising and unfair competition laws apply to the use of social media by businesses. Furthermore, CAN-SPAM, the Federal anti-spam email law also applies.

Facebook has sued several business entities that spammed Facebook users. The courts held that Facebook had standing to use as an ISP under CAN-SPAM and that CAN-SPAM applied to communications on Facebook.

The FTC recently sued a plastic surgery clinic in Florida for unfair competition. The clinic used various types of social media, including blogs, to create an Internet buzz. Employees provided comments on Facebook and fake customers reviews, among other things.

The FTC sued on the basis that such practices were deceptive advertising. If an employee "Likes" his/her employer's Facebook page and provides favorable comments, and does not reveal that the he/she is an employee, then that is the same as writing a false customer testimonial. The business is liable under false advertising and unfair competition laws.

Any business that might get into any form of social media must have a social media policy that takes these legal issues into account.

Stolen notebooks = $23 million judgment

An employee quit his job and took a couple of binders of documents with him to his new job at a competing company.  This is a very common scenario; employees taking information or unique content with them when they leave a job.  They think that no one will know or care. 

However, the outcome proved disastrous for the employee and his new employer.  More than 10 years later, the employee and his new employer were hit with a judgment of more than $23 million dollars for copyright infringement. 

I tell my clients that copyright law is very strong and can provide powerful remedies for the owners of copyrights.  A recently published Federal case illustrates the strength of the U.S. Copyright Act and why one shouldn't steal documents or use misappropriated documents from another company.

In William A. Graham Co. v. Haughy, a Federal appellate court upheld an award of damages of more than $19 million and more than $4.6 million in pre-judgment interest for copyright infringement.   The infringement in this case was for the theft and use of two binders of documents that had been prepared by the plaintiff in the case - an insurance brokerage.  The binders were used by the plaintiff's agents to sell insurance products. 

An employee left the plaintiff's employment and took with him copies of the documents in the binders.  He gave the documents to his new employer, a competing insurance brokerage.  The new employer gave copies of the documents to its agents and used them for more than a decade before the plaintiff discovered the theft and use. 

The plaintiff sued the competing company and its former employer.  Although there is a statute of limitations for copyright infringement, it does start to run until the copyright owner discovers, or should have discovered, the infringement.  The plaintiff sought profits earned by the defendants that were attributable to the use of the documents in selling insurance products.  This is a form of infringement called indirect infringement.  The plaintiff wasn't seeking damages for the value of the documents themselves but the profits that were attributable to their use.

A jury found that the documents helped the defendants to attain tens of millions of dollars in profits in selling insurance.  The jury found that the portion of those profits attributable to the use of the documents was more than $19 million and added pre-judgment interest of $4.6 million.

The lessons:  register your copyrights for all the documents, art and content that you create, and don't steal or use stolen property!