Microsoft Loses Patent Lawsuit

One of the top news stories this week that got virtually no popular press involves the judgment against Microsoft by a small company with a big software patent.

University of California and Eolas Technologies, Inc. hold a patent which Microsoft, according to several judges, violated with its popular Internet Explorer Web browser.

Without going into painful technical detail, the patent involves the "ActiveX" technology enabling Web browsers to display both web pages and content such as streaming audio, Flash, QuickTime video and other "rich" or "dynamic" content.

Despite heated input by the Internet community to invalidate Eolas' patent because of its broad nature, Microsoft lost every appeal and effort to get the patent nullified.

Bottom line: Microsoft faced two choices. First, they could pay the patent owner and keep things moving along, business as usual (much the way Blackberry did recently when a judge found them guilty of patent infringement).

Second choice: Microsoft could avoid future licensing fees by changing their IE browser and removing the offending code.

Which do you think they chose? Ding-ding-ding!

You guessed it, Microsoft chose to avoid paying millions more by simply removing the offending code.

Unfortunately, that decision means a bit of trouble for a few million web designers who use Flash, streaming movies, and more.

Ultimately, the change to IE may force visitors to sites with rich content to click on an object to enable it before they can interact with it.

Not a huge deal. However, time will tell what ultimately happens and the actual impact on sites running rich content.

But before everyone starts screaming that "The sky is falling" and "our websites are broken," let me ask you a question.

Do you really think that companies like Macromedia (makers of Flash) and sites like Google Video will let a few changes in Internet Explorer put them out of business?

I don't think so!

If anything, this change will force companies to step up to the plate and discover ways to serve dynamic content that does not depend on ActiveX.

Sure, it will mean some pain for both content creators and users in the short term, but in the end I honestly believe that, through innovation, we will all end up with a better solution than what currently exists.

In other news today...

** Hollywood Goes Online **

Six major movie studios recently announced their intentions to start selling new-release movies via Internet download from the site MovieLink.com.

But before you jump for joy at watching "Brokeback Mountain" on your pc, understand a couple of facts.

You can't burn the movie to DVD, and the downloadable films carry a price tag of around $15-30, a price comparable or more than a physical DVD you can purchase at Wal-Mart.

As a rabid DVD consumer and enthusiastic computer user (with six in my home office alone), I can tell you right up front, there is no way in @#$%* I'll pay 20 bucks for a movie I can't "veg" out with in front of the TV.

Are they insane?

Until it gets to the point where you can download a new- release movie, burn it to DVD or put it on your iPod, downloadable flicks will remain, at best, a novelty.

"Finally! A Quick and Easy Way For YOU to Painlessly Set Up Your OWN Moneymaking 'Mini' Websites... Without Being a Computer Geek, Buying Expensive Software, or Paying Outrageous Fees To A Webmaster!" Click Here => http://www.MiniSiteCreator.com

Trademarks - What You Ought to Know

Trademark law affects every business in the United States. Don't assume that your new business name, new product name, slogan or logo has not already been used commercially OR trademarked!

No business name may be used in any one of the following cases, IF there is a conflict or similarity in sound, appearance or meaning & industry:

• A Federally registered trademark anywhere in the U.S., or
• A State registered trademark in any state they do business in, or
• Used within same geographic trade area with "first use" Common-Law protection.

There are over 2,500,000 Trademarks, and over 16,000,000 commercial Common Law trade names in use. ANY existing Federal Trademark, State Trademark or commercial Common Law use takes precedence over your new business or product name, IF there is a conflict or similarity in sound, appearance or meaning & industry.

When you create a new business name, product name, slogan or logo, you will begin to establish your legal rights to your name in the geographic trade area where you do business based on Common-Law usage.

However, the question is: Is your trade name truly available?

It is a company's obligation and it is in their best interest to enforce its marks. Trademark owners have up to six years to find and order businesses to change any infringing trade name.

Infringing trademark companies could face costly attorney bills ($200 to $350 hour), immediate renaming of their company or product, recall of products, forfeiture of profits, re-marketing of the new name, and marketing change-over for a new name, including logo, signs, corporation, forms, checks, packaging, yellow page listings, web site, etc.

Comprehensive research is truly a need for any new business name, new product name, new slogan or new logo.

Shannon Moore is the General Manager, East Coast for TradeMark Express. Since 1992, TradeMark Express has met the needs of their clients with comprehensive research, application preparation, attorney referrals and trademark consultation. For further details, please visit us on the web at http://www.tmexpress.com

The Trademark Dilution Revision Act of 2006 and Your Online Business

Creating the right trademark that distinguishes your product or service from others is the key to a successful business both online and off. However, one recent legislative enactment is worthy of note, as it might influence your decision in choosing the next name or graphic for your online business. ?

Like its predecessor, the Federal Trademark Dilution Revision Act of 2006 ("Act"), signed into law in mid-October by President Bush, provides remedies for owners of "famous" trademarks (e.g. trademarks that are widely recognized by the general consuming public in the U.S. as a designation of source of goods or services of the trademark owner). Plaintiffs can file an action for dilution and obtain injunctive relief by showing their trademark has been "diluted" by the unauthorized use of another.

The Act provides for the cause of action known as "dilution." Dilution is a relatively new addition to trademark law that allows a plaintiff to recover from another's unauthorized use of his trademark where such use degraded or diminished the uniqueness and/or distinctiveness of his famous trademark.

Usually dilution is referenced together with the concepts of blurring and tarnishment. The revised Act specifically cites "dilution by blurring" and "dilution by tarnishment" as new causes of action in themselves. In all its forms lies the dangerous misperception that dilution claims require a showing of consumer confusion. Dilution claims, including blurring and tarnishment, require no showing or likelihood of confusion. ?

The revised Act is especially relevant to the online business owner in the initial stages of choosing a trademark name or graphic. Under the new cause of action for "dilution by blurring" you may run into problems simply by choosing a trademark that is similar to a famous trademark that causes the famous mark to lose its distinctiveness. Regardless if you adopted your trademark in good faith with no intention of piggy-backing off of the goodwill of a famous name brand, you may be sued for dilution by blurring. Similarly, under the new cause of action for "dilution by tarnishment" you may encounter problems by choosing a name similar to a famous brand if your use causes the famous trademark to suffer loss to its reputation.

It is particularly important to note that the new causes of action for dilution, dilution by blurring and dilution by tarnishment apply a "likelihood" of dilution rather than an actual dilution standard. This means that a plaintiff need only allege that your use is likely to cause or may potentially cause damage to their reputation or to the distinctiveness of their trademark. This new standard wields great power to owners of famous trademarks and could prove potentially lethal to the unsavvy online business owner or entrepreneur.

However, this new power is not absolute and will likely have little effect on comparative marketing and advertising both online and off. Under the revised Act, it is not actionable to compare your goods with that of a famous brand. It is also not actionable to parody a famous brand or trademarked product. For online marketers, this is important, as the Act preserved the traditional free-market idea of comparative advertising. Thankfully Congress recognized and appreciated the benefits of comparative advertising, maintaining its integrity in the revised Act.

From the recent Google decision and this revised Act by Congress, one can glean that although the strings are drawing tighter around the ever-expanding World Wide Web, it remains open to free-market competition and entrepeneurism. However, as trademark law evolves through judicial opinions and legislative enactments, it is always the best advice to consult an experienced intellectual property attorney before setting your branded product or service out into the world through the ether or otherwise.?

This article was written by Gemma E. Hoffman, a graduate of the Franklin Pierce Law School, specializing in intellectual property law.? Gemma writes select pieces regarding intellectual property for the law firm of Goldstein and Clegg, LLC, a Massachusetts Trademark and copyright law firm. ?

Creating the right trademark that distinguishes your product or service from others is the key to a successful business both online and off. However, one recent legislative enactment is worthy of note, as it might influence your decision in choosing the next name or graphic for your online business.