Category Archives: Copyright

Top 5 Avoidable Intellectual Property Mistakes

There are a few simple things you can do as a business owner to protect your Intellectual Property (IP) and avoid the common mistakes. Knowledge is key so you can plan accordingly and take the right steps to maximize and protect your valuable IP.

1. Failing to federally register your brand

You are starting a new business providing services or products locally. You create a catchy brand and logo. Your business takes off and you are a viral hit! Now you are doing business throughout the entire Southeast. A competitor copies your brand and starts using it in California for identical services/products. What can you do? Well, if you only have common law rights in the Southeast and have no presence in California, there may be little you can do.

But, if you had applied for and received federal protection of your brand through the United States Patent and Trademark Office (USPTO), you have constructive use of your brand throughout the United States as of the registration date. In that situation, you would likely be able to stop the infringer, or if desirable, negotiate a license for the company to use your brand on the West coast. It is important to protect your Intellectual Property early in the process so you can stop potential infringers and minimize the impact/damages to your business from copycats.

2. Waiting too long to file for patent protection

Often potential clients tell me that they started selling their products more than a year ago. This is one of the most frustrating aspects of my job as their invention is now in the public domain. An inventor/applicant must file for patent protection within one year of any sale, offer for sale, or public disclosure of the invention. This is called a statutory bar deadline, which is not extendable. In some cases, the inventor/applicant may still seek protection for improvements on their invention that occurred within the one year timing, but the underlying invention that was sold more than one year prior is now in the public domain.

It is important to meet with a patent attorney early in the process. That way you can learn about critical dates and timing considerations as you develop your invention and decide how to best protect your invention. By understanding the patent process, you can make educated decisions about when or if you want to seek patent protection. If do not not have that information, you could be unintentionally giving up your patent rights.

3. Getting a written copyright assignment when hiring an artist/graphic designer

A common misconception is that when you hire and pay an artist to create your logo or a photographer to take pictures, you own the copyright interest in the work prepared. Not true. If you hire an independent contractor to create the graphic and don’t get a written assignment of the copyright interest, you are left with an implied license to use the graphic. If you are using it as a brand, you don’t have ownership in the logo to apply for federal trademark protection. To properly own the copyright interest, you must secure a written copyright assignment from the artist.

In some cases, a company uses an employee to create the graphics. If the employee creates the graphic in the scope of their employment, the artist is automatically the employer company (not the employee). Knowing how to properly secure your Intellectual Property rights is critical. Otherwise, you may not even be aware that you have minimal or no rights in what you thought was your Intellectual Property.

4. Recording your Trademark and Copyright Registrations with U.S. Customs and Border Protection

You secured a trademark registration from the USPTO, congrats! Now what? Take a few minutes and record your trademark registration with U.S. Customs and Border Protection (CBP). Why? Let CBP help you enforce your trademark rights with products imported into the country.

If you record your trademark (or copyright) registration with CBP, they will cross reference branded products crossing the US border against the CBP database. If there is a hit, CBP will freeze the products at the border and notify you as the registrant to confirm if they are your products or if you authorized the import of products that use your brand. This is a great tool that is often overlooked. Why let the products hit the market when CBP can freeze them at the border?

5. Not using an Attorney to Protect your Intellectual Property

For most start ups and independent entrepreneurs, budget is a primary consideration. Most business owners know they need to protect their IP, but often do not prioritize the budget to hire competent counsel to navigate the application processes to secure the applicable registrations. This can be fatal to your IP protection years down the road. Compared to patent applications, trademark and copyright applications are not overly complex for applicants to prepare on their own. However, knowing what and why certain information goes into an application can be critical to maintaining the validity of your rights.

For example, you prepare and file a trademark application for the brand ABC, owned by the ABC Company. You state in the trademark application that the brand ABC was first used in commerce on January 1, 2022. That is the date your formed ABC Company with the state. But you started selling products with the brand ABC on June 1, 2022, six months later. The sworn statement you made to the federal government was inaccurate. The USPTO is unlikely to catch the issue as they accept your sworn statement. But when you enforce your trademark registration against an infringer harming your business, it may be grounds to invalidate your trademark registration. Then you are left with common law rights. An attorney will ask questions so you understand the legal implications of your answers in a trademark application.

For any questions about your Intellectual Property questions, please contact Greg below:

Greg M. Popowitz, Esq.

Board Certified in Intellectual Property Law

Registered Patent Attorney

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd Street, Suite 3105

Miami, Florida 33131

Main: 305.567.5576

Fax: 305.567.69343

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Small Claims Copyright Venue is Here!

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The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020 established the Copyright Claims Board (CCB). The CCB is a new administrative court housed within the United States Copyright Office that is set to go into effect on December 27, 2021. The CCB is designed to provide a cheaper and more efficient venue over federal court to litigate certain copyright infringement claims. The CCB will have three full time judges (a/k/a Copyright Claims Officers) appointed by the Librarian of Congress, with at least two full time attorneys to support their efforts.

The CCB will hear certain civil based copyright claims, counterclaims, and defenses. Examples include infringement claims, declaratory relief actions of non-infringement, and claims for misrepresentation related to a Digital Millennium Copyright Act (DMCA) takedown notice. While the CCB can award monetary damages and help settle claims and counterclaims, the CCB can only rule on copyright infringement claims for underlying copyrighted works that are already registered. This is in line with the Fourth Estate SCOTUS case requiring registration, not merely application, before brining a federal action of copyright infringement. If there is pending federal litigation on the underlying copyright, the federal court would need to grant a stay and permit the CCB to proceed.

Procedurally, the filing party (claimant) must initiate one of more claims for the CCB to review. If in compliance, the CCB will permit the proceeding to move forward. Then the claimant has 90 days to serve the accused infringer (or respondent) with a copy of the filed claim and notice, and file proof of service with the CCB.

Notably, a respondent must affirmatively “opt out” of the CCB proceeding within 60 days after being served or they will have effectively consented to have the case heard before the CCB and lose their right to litigate the case in federal court. If the CCB case proceeds, it is designed to move forward with limited discovery, no formal motion practice, and no in-person hearings. Different than federal court (prior to the pandemic at least), all appearances are virtual using Internet based technology.

The CCB is limited to awarding $30,000 maximum for each proceeding. For claims based on timely registered copyrighted works (i.e. entitled to statutory damages), the claimant is eligible to an award of $15,000 in statutory damages per work infringed, with a total of $30,000 possible in one proceeding (excluding attorneys fees and costs).

In a change from existing law, the CASE Act allows for statutory damages for works not timely registered. In this case, a claimant is only eligible for an award of $7,500 in statutory damages per work infringed, with a maximum of $15,000 in any one proceeding (again, excluding attorneys fees and costs). Prior to the CASE Act, a copyright owner could only recover statutory damages if the works were registered before the infringement started or within three months of publication.

The claimant can also elect to recover actual damages and profits up to $30,000 (excluding attorneys fees and costs), in lieu of statutory damages. Attorneys fees and costs are potentially recoverable, with a cap of $5,000, but only in cases where the opposing party has demonstrated “bad faith”.

Notably, while the CCB cannot consider whether a party infringed a copyright work “willfully” when assessing an award of statutory damages, it can consider whether the party agreed to mitigate the alleged infringing activity as an additional factor when awarding statutory damages.

If you are thinking about initiating a claim before the CCB, or if you have been served with a CCB claim and notice, the attorneys at Assouline & Berlowe are here to assist in your Intellectual Property needs.

Greg M. Popowitz, Esq.

Board Certified in Intellectual Property Law

Registered Patent Attorney

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Wait, What?: NFT Basics and Looking Forward

Registered Patent Attorney and Intellectual Property Board Certified Partner Greg Popowitz will be a panelist in an upcoming webinar about non fungible tokens (NFTs). The webinar will cover: 1) What is a NFT?; 2) How are NFTs being used prominently at the moment; 3) Legal issues that have currently arisen and possible conflicts; and 4) Looking forward to where the intersection of NFTs is going with the law as well as local government.

Greg will be presenting with Attorneys Josh Lida and Danielle Dudai for the Broward County Bar Association webinar. The webinar is approved for 1 General & Technology CLE Credit & 1 Business Litigation & Intellectual Property Law Certificate Credits.

The event will take place in person and on Zoom on Wednesday, September 1, 2021. You can register at https://www.browardbar.org/calendar/#!event/2021/9/1/wait-what-nft-basics-and-looking-forward.

For more information about the Intellectual Property aspects of NFTs, please contact Greg M. Popowitz, Esq.

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Greg Popowitz Earns IP Board Certification by The Florida Bar

Assouline & Berlowe is proud to announce that Partner and Registered Patent Attorney Greg Popowitz has earned board certification from The Florida Bar in Intellectual Property Law. Greg joins a group of only 140 board-certified Florida lawyers in the Intellectual Property practice area.

According to The Florida Bar, only 7% of eligible Florida attorneys have earned board certification in one or more of the bar’s 27 specialty areas. Board certification recognizes attorneys’ special knowledge, skills, and proficiency in their areas of the law and their professionalism and ethics in practice. Board-certified lawyers must have a minimum of five years in law practice, pass an examination specific to their area of practice, undergo a peer review assessment of their competence and character, and satisfy continuing legal education requirements. Greg joins fellow Assouline & Berlowe partner Ellen Leibovitch, who is board-certified in Labor and Employment Law. 

Greg, who practices in the firm’s Fort Lauderdale office, helps clients protect their inventions, brands, and other creations using patent, trademark, and copyright law. Greg is a Registered Patent Attorney and he helps secure patents and trademarks before the United States Patent & Trademark Office (USPTO), along with work relating to licensing, co-existence agreements, evaluating new inventions, brands, and technology, clearance searches, and litigation. Greg enjoys counseling clients on the various mechanisms available to protect their Intellectual Property, which ultimately adds value to their business.

Greg earned his J.D. from Nova Southeastern University School of Law and his B.S. in Mechanical Engineering from the Georgia Institute of Technology (Georgia Tech). 

For more information about Intellectual Property issues, please contact Greg M. Popowitz, Esq.

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Mobile/Gaming Patent Presentation by Peter Koziol (3/3/2020)

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Registered Patent Attorney and Partner Peter Koziol will be presenting an audio webcast on March 3, 2020 (at noon) on the subject of Mobile Applications, Gaming and Entertainment Patent Law.  To sign up to attend the presentation, click here.  Presented by  the Entertainment, Arts, and Sports Law (EASL) section of the Florida Bar, the one hour CLE will provide Technology Credit, which is a relatively new requirement for Florida attorneys.

Peter is a seasoned Intellectual Property attorney that handles the prosecution and litigation surrounding patents, trademarks, copyrights, and trade secrets.  Peter has developed a unique skill set regarding application/software related patents given his background in software engineering and his litigation surrounding software patents.

For any questions about the presentation and Intellectual Property, contact Peter Koziol and the Intellectual Property team at Assouline & Berlowe.

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower #135

Boca Raton, Florida 33431

Main: 561.361.6566

http://www.assoulineberlowe.com/

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BANKRUPTCY LAW – Small Business Reorganization Act, New Interim Rules Released

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The United States Bankruptcy Court for the Southern District of Florida, through its Chief Judge, Laurel M. Isicoff, issued several updates tonight regarding the new Small Business Reorganization Act (SBRA), which goes into effect TOMORROW!

As stated by the Chief Judge: “The SBRA creates a new subchapter V of chapter 11 for the reorganization of small business debtors.  It does not repeal existing chapter 11 provisions regarding small business debtors, but instead creates an alternative procedure that small business debtors may elect to use.”

The Court further stated that: The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has promulgated Interim Rules and Form Amendments to the Federal Rules of Bankruptcy Procedure as a result of the passage of the Small Business Reorganization Act.

Among the numerous orders, is Administrative Order 2020-02 In re: Adoption of Interim SBRA Bankruptcy Rules.  This is an important set of rules that bankruptcy practitioners in the Southern District of Florida must follow.

Amended Official Forms 101, 201, 309E (renumbered 309E1), 309F (renumbered as 309F1), 314 (use Local Form LF-33), 315, and 425A, and new Official Forms 309E2, and 309F2 become effective February 19, 2020. For changes in the Bankruptcy Forms please visit: https://www.uscourts.gov/rules-policies/pending-rules-and-forms-amendments/pending-changes-bankruptcy-forms.

Additional SBRA Resource:

A Guide to the Small Business Reorganization Act of 2019” by U.S. Bankruptcy Judge Paul W. Bonapfel Northern District of Georgia.

Eric N. Assouline, Esq.

 

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HAPPY 17th ANNIVERSARY to ASSOULINE & BERLOWE!

MIAMI – Assouline & Berlowe, P.A., The Business Law Firm, is pleased to announce that today it is celebrating its 17th Anniversary.

Started on February 10, 2003, through humble beginnings, in a small subleased space in Coral Gables, Assouline & Berlowe has weathered the many business climate changes and challenges of the past two decades.

Assouline & Berlowe is proud of its contributions to its communities in the tri-county area, as part of its presence with offices in Miami, Ft. Lauderdale/Dania Beach, and Boca Raton.  Assouline & Berlowe regularly supports both its legal community and numerous charitable organizations alike.

Assouline & Berlowe is strategically positioned to continue its expansion as a strong player in South Florida’s international business environment.

To all those that we have worked with in the past and to those we hope to work with in the future, we say thank you.

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INTERNATIONAL ARBITRATION / BANKRUPTCY PANEL DISCUSSION – October 23, 2019 at the University of Miami

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ONLY 7 DAYS LEFT.

The International Arbitration Society at the University of Miami School of Law is presenting a panel discussion on the conflict between International Arbitration and Domestic Insolvency.

Date : October 23, 2019

Time: 6:30 p.m. – 9 p.m.

The discussion will be followed by a networking social.

Students, professionals and practitioners are invited to attend and participate.

Please RSVP here: https://lnkd.in/eAT24JM

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Want to Learn More About Intellectual Property? Check out the new CLE by Greg Popowitz.

popowitz cle

Assouline and Berlowe Registered Patent Attorney Greg Popowitz recently recorded a lecture for the National Academy of Continuing Legal Education (NACLE), focusing on a general Intellectual Property Overview and 2019 IP case law update.

Mr. Popowitz detailed the fundamental differences of patents, trademarks, copyrights, and trade secrets and the nuances of each area of Intellectual Property.  He also discussed some recent key court decisions, including Supreme Court of the United States (SCOTUS) holding the disparagement clause of the Lanham Act unconstitutional under the First Amendment and paving the way for the mark F.U.C.T.  In addition, Mr. Popowitz discussed SCOTOS’ resolution of a circuit split, holding that a party must have completed the registration process before filing suit in federal court, as opposed to simply applying for protection.

To view the NACLE CLE, please click here.  The link is also provided below:

https://www.nacle.com/CLE/Courses/Intellectual-Property-Case-Law-Update-and-General-IP-Overview-1353

For any questions about trademarks, patents, or copyrights, contact Greg Popowitz.

Greg M. Popowitz, Esq.

Registered Patent Attorney

AV Rated by Martindale-Hubbell

Intellectual Property Litigation

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

LinkedIn  ||  Twitter

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PARALEGAL SEMINAR – OCT. 19, 2019 – South Florida Paralegal Association

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Assouline & Berlowe Litigation Partner Peter E. Berlowe is one of the guest speakers at this year’s Annual Fall Seminar for the the South Florida Paralegal Association. 

On October 19, 2019 at the Florida International University – College of Law

Located at Rafael Diaz Balart Hall (RDB) Room 2008, 11200 SW 8th Street, Miami, FL 33199

Offering 6.5 Credits

Including 1  Ethics Credit and 0.5 Technology Credit

With Keynote Speaker

Mercedes M. Prieto, Esq., Clerk of the Third District Court of Appeal on Introduction to Legal Research and Legal Memoranda Writing

and guest speakers


 Peter E. Berlowe, Esq. of Assouline & Berlowe, P.A. on Analysis of an Injurious Falsehood Case and the Paralegal’s Role

 Marc Hurwitz of Crossroads Investigations on A Former CIA Officer’s Guide to Investigations for the Divorce Process

Bianca Moreiras of Bianca Moreiras & Associates on Time Management, Goal Setting and Taking Action

 Felice Solomon of Solomon Search Group on How Paralegals Can Deal With Seven Personality Types in the Workplace

and

 Valencia N. Poitier, Esq. of American Integrity Insurance of Florida, Inc. on HIPPA: Accountability, Ethics and Evidence – Avoiding the Pitfalls of Suppression and Lack of Foundation

The cost to attend the event is:

Students: $25 

Member & Affiliate Members: $55

Non-Members: $65

Continental breakfast & hot lunch will be provided Your Savory Fare

For more information regarding the event, please contact SFPA Vice-President Summer Marshall by email at smarshallfrp@gmail.com


For more information on how to sponsor this event, please contact

Sadena Blatt Miropol by email at sb0929@gmail.com

This seminar meets the requirements of the NALA Certifying Board for Paralegals for continuing legal education credit required to maintain the CP (Certified Paralegal) credential.

To recap:

The South Florida Paralegal Association is proud to present its 2019 Annual Fall Seminar on October 19, 2019 at the Florida International University – College of Law, located at Rafael Diaz Balart Hall (RDB), RDB 2008, 11200 SW 8th Street, Miami, FL 33199

Celebrating 40 Years of Commitment to the Legal Community

Offering 6.5 Credits (including .5 Ethics Credit and 1 Technology Credit)

With keynote speaker:
Mercedes M. Prieto, Esq., Clerk of the Third District Court of Appeal

And guest speakers:
Peter E. Berlowe, Esq. of Assouline & Berlowe, P.A.,
Marc Hurwitz of Crossroads Investigations,
Felice Solomon of Solomon Search Group,
Valencia N Poitier, Esq. of American Integrity Insurance of Florida, Inc., and
Bianca Moreiras of Bianca Moreiras & Associates

The cost to attend the event is:
Students: $25
Member & Affiliate Members: $55
Non-Members: $65

Continental breakfast & hot lunch will be provided Your Savory Fare

For more information regarding the event, please contact SFPA Vice-President Summer Marshall by email at smarshallfrp@gmail.com

For more information on how to sponsor this event, please contact Sadena Blatt Miropol by email at sb0929@gmail.com

This seminar meets the requirements of the NALA Certifying Board for Paralegals for continuing legal education credit required to maintain the CP (Certified Paralegal) credential.

All content © SFPA 2019.

South Florida Paralegal Association, Inc. is a non-profit organization. 123 S.E. 3rd Avenue, #367, Miami, Florida 33131.

http://sfpa.info/event-3565682

 

 

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