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Denver Business and Commercial Law Blog

Some copyright cases may be barred by earlier patent claims

Intellectual property can be particularly important for Colorado companies in the tech field. Unique developments in software and other technology can be patented or copyrighted in order to prevent them from being freely exploited by competitors in the market. If these protections are not obtained, companies may find themselves quickly eclipsed by larger firms, even if their technology is new and innovative. Lawsuits can be an important way of protecting these rights if a company discovers that another developer is misusing their work in a way contrary to law.

At the same time, it can be important for companies pursuing intellectual property claims to ensure they are thorough in their initial filings. One company, Media Rights Technologies (MRT), was barred from moving forward with DMCA and breach of copyright claims against Microsoft because it earlier filed a patent infringement lawsuit against the company that failed. It did not make any of the available copyright claims in the original lawsuit. Therefore, the district court hearing the case threw out most of those allegations, saying that they were barred by claim preclusion. Preclusion prevents parties from going back to court repeatedly over the same underlying facts.

Forming an LLC in Colorado

When Colorado entrepreneurs are considering launching a new vneture, they may be looking for structure options that allow them to protect themselves and prepare for future expansion. A limited liability company is one type of legal entity that is allowed in Colorado. Limited liability companies take their name from the concept that the liability of their owners is limited with respect to the company's debts and judgments. However, this business structure also allows for more flexible filing and record-keeping options.

All Colorado LLCs must contain text as part of their names that reveal the type of entity that they are. The business name can include "LLC", "limited liability company", or other phrases that reflect the structure. In addition, the name of the company must be unique and separate from that of other businesses registered in the state. The owners of an LLC are referred to as the members. Members can be individual owners, but they can also be other LLCs, corporations or even foreign businesses.

What should employers provide for pregnant workers in the summer?

Summer is one of the most dangerous times of the year for Colorado workers. The traffic is terrible, the temperatures are dangerously hot and a lot of employees end up going home looking more red than usual.

Thousands of workers suffer every year from excessive sun exposure, dehydration and heat-related illnesses. Imagine having to deal with all of this while expecting a child soon. Employers are required by the state to provide reasonable accommodations for pregnant employees, but many of them forget how difficult summer is for these future mothers. Here are some ways your boss can help you beat the heat during these scorching months:

Copyrights must be registered before infringement suits filed

The Supreme Court has handed down a decision that could affect business owners and individuals in Colorado when it comes to copyright protection. Specifically, the Court ruled that claims of copyright infringement can be brought only after the work in question is registered with the U.S. Copyright Office. These claims can only be filed in U.S. federal trial courts. Prior to the ruling by the Supreme Court, litigants, courts and legal scholars differed over when a copyright claim has been registered.

Prior to the ruling, the district and circuit courts were divided on whether the filing of a copyright application is enough to allow a person to bring a claim of copyright infringement or whether a finalized registration is required. The Supreme Court answered the question in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, by ruling that the allegedly infringed work must actually have been registered before a claim for infringement will be heard.

Startups and financing

Colorado residents who want to start their own business may not be sure about how to finance their venture. However, there are several options they can pursue.

Friends and family can be a good source of financing for a startup. In fact, they are the primary source of startup financing for small businesses. In a 2017 survey regarding small business, 26 percent of those responding stated that family and friends were the most dependable capital source.

How cannabis companies can protect themselves

Businesses in Colorado and throughout the country spend an average of $2.8 million on patent infringement lawsuits. Therefore, it is important to have IP insurance or some other way to resolve such suits in a timely and affordable way. To defend against a patent lawsuit, it is important to identify and protect an asset as quickly as possible. In the cannabis industry, this may mean that a company identifies and protects a plant it has created.

In some cases, it may not be possible to patent a plant or other intellectual property. This is because it was illegal to grow or sell marijuana or related products until recently. Therefore, it was generally difficult to take action against another person or entity selling the same product to its customers. Furthermore, it may not make sense to get a patent to protect intellectual property. Instead, it may be enough to patent a brand name or to keep certain information a secret from competitors.

CBS sued for infringing rights to 'The Andy Griffith Show' theme

Previous generations in Colorado enjoyed "The Andy Griffith Show" on television. To this day, the iconic whistling theme music for the show remains recognizable. Fans of the show may be interest to learn that the heirs currently holding the rights to the music, composed by Earle Hagen and Herbert Spencer in the 1950s, have filed a federal lawsuit against CBS for infringing on the music's copyright.

According to court filings, the plaintiffs accuse the television network of using the music without a valid licensing agreement. CBS has produced DVDs of the classic television series and appears to be basing its use of the music on an agreement between Viacom and Mayberry Enterprises signed in 1978. Due to the age of this agreement, it did not cover distribution for newer mediums like the DVD format. Additionally, the plaintiffs complain that the network has created distribution agreements with streaming services outside the purview of the 1978 document.

Advertising pitches can give rise to IP disputes

When companies in Colorado and around the country decide to launch new media campaigns to promote their brands, they often ask several advertising agencies to submit their ideas during what are known as pitch sessions. This can lead to thorny legal problems as the winning campaign often contains marketing strategies and ideas that are similar to strategies and ideas submitted by agencies that failed to win the contract. Matters can also become complex when the winning agency includes some of its ideas in pitches it later makes to other clients.

Rampant creative theft in the music industry prompted Congress to revise the nation's intellectual property laws in 1976. The passage of the Copyright Act extended protection to all original authored works, which applies to ideas contained in marketing strategy pitches. The law also transferred ownership of intellectual property from the party that pays for it to the party that creates it. This means that marketing ideas remain the property of their creators even after they have been submitted for consideration and approved or rejected.

Supreme Court ruling helps trademark licensees

In a decision that could have wide-ranging importance for trademark owners and licensees in Colorado, the Supreme Court has ruled that licensees retain their rights even after the licensor rejects the agreement in a bankruptcy proceeding. Bankruptcy courts have differed on the matter and how trademark licenses can be rejected under section 365 of the U.S. Bankruptcy Code. When a trademark owner files for bankruptcy, it may seek to repudiate its license agreements in order to restructure their rights process or escape obligations under their contracts.

In an 8-1 decision, the nation's highest court said that bankrupt trademark owners cannot rescind the rights of their licensees through a rejection in the bankruptcy process. Instead, licensees can continue to use the trademark as previously authorized under their license. The debate over the issue arose after a provision was added to the Code's section 365 that allowed licensees to continue to use intellectual property after a license was rejected in bankruptcy. However, unlike other forms of intellectual property, trademarks were not explicitly named in this provision, leading some courts to decide that they would be treated differently.

Failing to plan hurts many startups

Owning a business can become a path to autonomy, financial independence and security. The statistics reflect that there is a high mortality rate among startups, yet small businesses continue to play a significant role in driving the economy and creating new jobs. While the risk is there for Colorado entrepreneurs, so too is the reward. Often, the difference between ultimate success and failure can come down to the details of planning.

Most people who start a new business have some expertise or a solid background in the arena in which their business operates whether it is a service business, product sales, manufacturing, professional services or anything in between. Entrepreneurs typically know the industry they intend to start a business in, but they need to be as well-versed in doing business. Business experts understand the need to plan, prepare and anticipate what running the operation will entail.

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