February 2017 Headnotes: Science & Technology/Intellectual Property Law by Jessica Smith

Dallas Bar Association

HEADNOTES

Focus Science & Technology/Intellectual Property Law

February 2017 Volume 42 Number 2

Ensuring Equal Access to All – Campaign Exceeds $1.1 Million BY ALICIA HERNANDEZ

There but for the grace of God go I. This is a phrase we hear people say all the time, and it encapsulates the uncertainty of our world—a world where we can work hard, lead a healthy life, try to do all the right things, but still hard times befall us. Many would be hard pressed to say that quote never passed their minds when working with someone less fortunate, who lost a job, whose spouse left them, or someone struggling with health problems or addiction. The list goes on. This phrase was at the forefront of one volunteer attorney’s mind when she represented “Maria” years ago in her child custody case. Maria was a good mother. She loved her kids, and she did her best to take care of them. Even though her lifestyle was very limited, she had a roof over her children’s heads, food on the table, and her children were good students. Maria seemed to have the deck stacked against her from the beginning. She was poor. She was severely abused throughout her life by her father, her brothers, and her boyfriends. And, although she had graduated from high school and had a job, the years of abuse had taken its toll on her abilities. She did her best, but it was so hard to get ahead. Maria’s attorney represented her well, preparing fully for trial, and preparing Maria for the worst. Maria, in turn, prepared her children for the worst—the possibility of the family being split up. Consistent with Maria’s life, the deck seemed stacked against Maria in court, but prayers were answered and hard work paid off, and Maria and her children got to stay together. Maria’s volunteer attorney, who wishes to remain anonymous, experienced what many volunteers do when

Focus

Lisa Blue

Chris Hamilton

doing something for others. She felt she received more from helping Maria than what she had given. “My experience with Maria helped me practice my trial skills, which was a great opportunity. What I didn’t expect was that it also helped drive home how lucky I am and how grateful I should be for all I have,” she says. “Maria was the first client who really made me think ‘there but for the grace of God, go I.’” “Maria was born into a family of abusers. I was born into a family of loving, caring people. Maria was taken advantage of by those who should have protected her. My family did everything they could to protect me. Very few, and certainly no one in her family, tried to help Maria. I have been surrounded by supportive and helpful friends and family. Why was I so lucky, and why did Maria have such disadvantages set upon her young, innocent life.” Many of you will see yourselves in Maria—someone who struggled, persisted, and are where they are today despite the obstacles. Some will see yourselves in our volunteer—loving parents, stability, and opportunities.

Some will feel they land somewhere in between— challenges and opportunities—but carrying on just like Maria. “I am so thankful and really honored that I was able to do something positive for Maria. Her case was a learning experience both personally and professionally,” said our volunteer. “DVAP is an opportunity we should be very, very proud of,” said Lisa Blue. “It is an opportunity for those of us who have been given the chance or have prevailed despite our circumstances, to help others rise up. It is an opportunity to be touched and to touch the life of another. It is the opportunity to grow professionally by mentoring others, learning about new areas of the law, and getting valuable experience. It is the opportunity to give back through legal service in a way only lawyers can. I am proud to be a part of it.” “Pro bono work is some of the most important work that we do,” added Chris Hamilton. “It is an opportunity to give back, help those less fortunate, and to ensure access to justice for all. As attorneys, pro bono work through the Dallas Volunteer Attorney Program should be one of our top priorities.” Lisa Blue, of Baron & Blue, and Chris Hamilton, of Standly Hamilton, LLP, are long-time supporters of Equal Access to Justice and the Dallas Volunteer Attorney Program. Because of contributions from donors like Lisa and Chris, the Equal Access to Justice Campaign has surpassed $1.1 million. These contributions are what allows DVAP to continue to assist thousands of clients every year—and HN provide opportunities for all.

Science & Technology/Intellectual Property Law

Who Gets my iTunes After I Die? BY PEGGY H. KEENE

In this day and age, people do not give second thought to the idea that drones are delivering parcels, voice commands can brew coffee, and songs can be streamed anywhere on demand. With technology innovating at such a rapid pace, it is hardly surprising that the law has barely kept up. Today’s average American has more than 20 active user accounts online and can acquire massive amounts of “digital assets” at an alarming rate. The term “digital assets” has come to refer to all of the digital content a user has amassed via the Internet. While the term is broad and encompasses a wide variety of content, it, in essence, refers to the vibrant patchwork of online content that users collect and manipulate every day to combine into an overall representation of their online identity. But what happens to these digital assets when we die? Is there some way we can ensure that these digital assets pass on to family members, or in some cases, is there some way we can ensure that these digital assets do not pass on to loved ones?

Traditionally, estate law has handled the distribution of one’s assets upon death. As such, allocation of one’s property upon death has been governed at the state level. By contrast, digital goods and services, by their inherent interstate nature, have generally been controlled by federal statutes. Specifically, the Stored Communications Act (SCA), a subsection of the Electronic Communications Privacy Act (ECPA) of 1986, has provided the most guidance. The SCA is a popular statute because it grants service providers—or “data custodians” (as defined by the SCA)—the right to refuse requests for disclosure unless the requesting party can prove that a specific exception of the SCA warrants such disclosure. In turn, the most commonly used exception, the “lawful consent” exception, has become quite notorious for its widespread use (almost to the point of abuse), and most practitioners joke that what qualifies as “lawful consent” varies from state to state and from provider to provider. But this all changed in 2016. Last year, at least 20 states passed the Revised Uniform

Fiduciary Access to Digital Assets Act (RUFADAA) or some form of it, which will provide legal guidance on how digital assets should be distributed upon death. Under RUFADAA, any fiduciary, such as a client’s executor, has the authority to determine how digital property and assets should be distributed or managed upon death. RUFADAA also grants the fiduciary access to user accounts, emails, social media, etc., if consent is explicitly conferred via will, power of attorney, trust, or through any specially-dedicated online tools or procedures as provided for by the online service provider. While these dedicated tools are relatively uncommon right now, the trend is catching on. For example, in response to the growing need, Google instituted an “Inactive Account Manager” setting in 2013, which allows a user to name another person as the recipient of their Google assets after a set amount of inactivity (e.g., three, six, nine, or twelve months). This dedicated tool also gives users the alternative option

to request that Google simply delete all of their digital assets/account after a pre-determined duration of inactive time instead of passing it on to another person. In absence of RUFADAA, the ownership of digital assets is still generally controlled by end-user licensing agreements. As such, movies and music we “purchase” and amass in our iTunes library are still generally considered to be only licensed to us and, as such, upon our death, the music license will simply expire, instead of becoming transferrable upon death. As RUFADAA is still in its infant stages and some states have yet to adopt it, the overall impact of the legislation still remains to be seen. While we can expect that all states will adopt RUFADAA or some form of it by the end of 2017, only time will tell how strongly it will impact the ownership of one’s digital goods. HN Peggy H. Keene is the founder of Keene Law Firm, P.C. She can be reached at peggy@keeneiplaw.net.

Inside 8 DBA Board Elects Chair and Vice Chair 10 Inaugural of Rob Crain 13 Mitigating Legal & Business Risks for Cyber Intrusions

DBA MEMBER REMINDER: All members who have not yet renewed for 2017 will be dropped on March 3, 2017! Renew TODAY in order to continue receiving all your member beneﬁts. Thank you for your support of the Dallas Bar Association!

2 H e a d n o t e s l D a l l a s B a r A ss ociation

February 2017

Calendar February Events

Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

FRIDAY, FEBRUARY 10

FRIDAY CLINICS

11:00 a.m. Pictorial Directory Photographer at Two Lincoln Centre

FEBRUARY 3-BELO Noon

“Law and the Automated Economy,” Peter Vogel. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org

FEBRUARY 10-NORTH DALLAS** Noon

“Cloud Computing & Ethics,” Joseph Jacobson. (Ethics 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org.

FEBRUARY 17-BELO Noon

Topic Not Yet Available RSVP to yhinojos@dallasbar.org.

WEDNESDAY, FEBRUARY 1 Noon Employee Benefits & Executive Compensation Law Section “Employee Benefits – Corporate Governance Trends,” Allison Wilkerson. (MCLE 1.00)* Solo & Small Firm Section “The Occasional Tourist’s Guide to the Texas Courts of Appeal,” Jim Moseley. (MCLE 1.00, Ethics 0.50)*

Juvenile Justice Committee

Public Forum Committee

DAYL Judiciary Committee

5:30 p.m. Bankruptcy & Commercial Law Section “Hot Topics with Chapter 13 Conduit Plans,” Grey Burks and Julianne Parker. (MCLE 1.00)*

Tax Law Section “Recent Developments in Estate and Gift Tax for the Tax Practitioner,” Matthew Beard, Norm Lofgren, and Laurel Stephenson. (MCLE 1.00)*

TUESDAY, FEBRUARY 7 Noon Corporate Counsel Section “What Can We Expect from the Trump Administration and Congress?” Christopher McCannell. (MCLE 1.00)* Immigration Law Section “What’s the PSG?” Levi Thomas and Paul Zoltan. (MCLE 1.00)*

Tort & Insurance Practice Section Topic Not Yet Available

6:00 p.m. DAYL Board of Directors

THURSDAY, FEBRUARY 2 Noon Construction Law Section “Deconstructing Bankruptcy: Blueprints for Navigating Title 11,” Melissa Hayward. (MCLE 1.00)* Judiciary Committee “Practice Tips for Temporary Restraining Orders and Temporary Injunctions,” Panel Discussion moderated by Michael Lyons. (MCLE 1.00)*

Lawyer Referral Service Committee

St. Thomas More Society

WEDNESDAY, FEBRUARY 8 7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group 9:00 a.m. Pictorial Directory Photographer at Belo

Trial Skills Section “From Voir Dire to Closing: Modern Persuasion Techniques Through Consistent Case Narratives,” Wayne Mason. (MCLE 1.00)*

DAYL Freedom Run Committee

Minority Participation Committee

Christian Legal Society

DAYL Animal Welfare Committee

Dallas LGBT Bar Association

FRIDAY, FEBRUARY 17 Noon Friday Clinic-Belo Topic Not Yet Available. RSVP to yhinojos@dallasbar.org.

MONDAY, FEBRUARY 20 Noon

Labor & Employment Law Section Topic Not Yet Available

MONDAY, FEBRUARY 13

TUESDAY, FEBRUARY 21

Noon Alternative Dispute Resolution Section “Perspectives on ADR from the Bench,” Hon. Martin Hoffman, Hon. Maricela Moore, and Hon. Tonya Parker. (MCLE 1.00)*

Noon Business Litigation Section “Key Cybersecurity Issues that All Lawyers -Especially Litigators -- Need to Recognize and Understand,” Shawn Tuma. (MCLE 1.00, Ethics 0.25)*

Antitrust & Trade Regulation Section “A View from the Trenches: Recent Federal Civil Antitrust Enforcement, and a Look Ahead to the Trump Administration,” David Kully. (MCLE 1.00)* Real Property Law Section “High Volatility Commercial Real Estate,” Jonathan Thalheimer. (MCLE 1.00)* Securities Section “An Update on What To Expect from the SEC in 2017,” Shamoil Shipchandler. (MCLE 1.00)*

Peer Assistance Committee

TUESDAY, FEBRUARY 14 Noon Mergers & Acquisitions Section “Investment Banker Roundtable on the State of the Private M&A Market,” Scott Ellis, Barrett Kingsriter, and Daniel O’Donnell. (MCLE 1.00)*

Franchise & Distribution Law Section Topic Not Yet Available

International Law Section “Renegotiating International Trade Deals and the Potential Impact,” Shayan Elahi. (MCLE 1.00)*

Dallas Bar Foundation Board Meeting

DAYL Elder Law Committee

6:00 p.m. Dallas Hispanic Bar Association

WEDNESDAY, FEBRUARY 22 Noon

Entertainment, Arts & Sports Law Section Topic Not Yet Available

DAYL Foundation Board

DAYL Equal Access to Justice Committee

Noon

Bench Bar Conference Committee

Summer Law Intern Program Committee

DAYL Lunch & Learn CLE

Home Project Committee

DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.

Dallas Asian American Bar Association

Legal Ethics Committee

DWLA Board of Directors

3:30 p.m. Judicial Investiture for Hon. Hector H. Garza

3:30 p.m. Judicial Investiture for Hon. Maricela S. Moore

Noon Friday Clinic—North Dallas** “Cloud Computing & Ethics,” Joseph Jacobson. (Ethics 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org.

Greg Lensing. (MCLE 1.00)*

5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.

FRIDAY, FEBRUARY 3

THURSDAY, FEBRUARY 9

Noon Friday Clinic-Belo “Law and the Automated Economy,” Peter Vogel. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org.

Noon Government Law Section “Best Practices for Ethics Policies,” John Rogers. (Ethics 1.00)*

CLE Committee

MONDAY, FEBRUARY 6

Criminal Justice Committee

Publications Committee

Noon Legal History Discussion Group “The Role of Biography in Legal History: The Case of John Henry Wigmore,” Andrew Porwancher. (MCLE 1.00)*

Christian Lawyers Fellowship

DAYL Pro Bono Partners Committee

WEDNESDAY, FEBRUARY 15 THURSDAY, FEBRUARY 23 Noon

Energy Law Section Topic Not Yet Available

Health Law Section Topic Not Yet Available

Law Day Committee

Library Committee

Pro Bono Activities Committee

Non-Profit Law Study Group

5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.

6:00 p.m. J.L. Turner Legal Association

Municipal Justice Bar Association

THURSDAY, FEBRUARY 16 Noon Appellate Law Section “Recovering and Defending Attorneys’ Fees,”

9:00 a.m. 2016 Jeff Coen Family Law Nuts & Bolts Video CLE Parts I & II, MCLE 3.00, Ethics 1.00 (Each Part). Sponsored by DVAP and the DBA Family Law Section. To register, contact vallejod@ lanwt.org or reed-brownc@lanwt.org. Noon Criminal Law Section “Basics of Immigration Consequences of Criminal Convictions,” Irene Mugambi. (MCLE 1.00)*

Environmental Law Section Topic Not Yet Available

Christian Legal Society

DAYL CLE Committee

FRIDAY, FEBRUARY 24 8:30 a.m. Family Law Section Bench Bar Held at the Highland Hotel (5300 E. Mockingbird Ln.). (MCLE 7.75, Ethics 3.50)* For more information, contact chris@quaidfarish.com.

Globe Life Park, Arlington, TX, Hall of Fame Suite | Doors Open at 5:00 p.m. Dallas & Tarrant County Judges, Lawyers, and Families are Invited

Thank You to our Sponsors:

Intellectual Property Law Section Noon “Highsmith v. Getty Images – Representing America’s Photographer,” James Gourley. (MCLE 1.00)* DAYL Solo & Small Firm Committee

MONDAY, FEBRUARY 27

Noon Science & Technology Law Section “From Blockchain to Bitcoin: Legal Issues Surrounding Cryptocurrencies,” Arnold Spencer. (MCLE 1.00)*

Organized by the Arlington Bar, Dallas Bar & Tarrant County Bar Associations

Dallas County Judges Planning to Attend: Hon. Tena Callahan Hon. Rob Cañas Hon. Tina Yoo Clinton Hon. Dominique Collins Hon. Danielle Diaz Hon. King Fifer Hon. Carl Ginsberg Hon. Bonnie Goldstein Hon. Harlin Hale Hon. Martin Hoffman

Hon. Margaret JonesJohnson Hon. Jim Jordan Hon. Nancy Kennedy Hon. Gracie Lewis Hon. Lincoln Monroe Hon. Regina Moore Hon. John Peyton Hon. Monica Purdy

Hon. Jeff Rosenfield Hon. Doug Skemp Hon. Craig Smith Hon. Ken Tapscott Hon. Drew Ten Eyck Hon. Dale Tillery Hon. Don Turner Hon. Ingrid Warren Hon. Staci Williams

Tarrant County Judges Planning to Attend: Hon. Wade Birdwell Hon. Robb Catalano Hon. Jamie Cummings Hon. Lindsay DeVos Hon. David Evans Hon. George Gallagher Hon. David Hagerman

Hon. Diane Haddock Hon. William Harris Hon. Cherami Jenkins Hon. Molly Jones Hon. Steven King Hon. James Mumford Hon. Jesus Nevarez, Jr.

Hon. Steve Owen Hon. Jennifer Rymel Hon. R.H. Wallace Hon. Carey Walker Hon. Judith Wells

Golf Tournament Committee

TUESDAY, FEBRUARY 28 Noon Probate, Trusts, & Estates Law Section “The Master Pooled Trust & the ABLE Act: How to Save Money Without Sacrificing SSI Benefits,” Haley Greer. (MCLE 1.00)*

DAYL Lawyers Promoting Diversity

American Immigration Lawyers Association

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Yedenia Hinojos at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.

F e bruary 2017

D allas Bar A ssociation l Headnotes 3

4 He adnot e s l Da lla s Ba r Asso cia tio n

February 2017

President’s Column

Headnotes

Stronger Together BY ROB CRAIN

In 1873, 40 lawyers formed the Bar Association of Dallas, apparently not recognizing the acronym BAD was probably a bad idea. Twelve years later, Colonel A.H. Belo moved from Galveston to Dallas. It would take nearly 100 years for these events to collide at the corner of Ross Ave and Pearl Street. Following his service career in the Civil War, Colonel Belo made his way to Galveston and ultimately became sole owner of the Galveston Daily News, the most significant newspaper operation in the State of Texas at the time. He moved to Dallas in 1885 to start a newspaper in North Texas, the Dallas Morning News. Three years later, at the cost of $27,500, Colonel Belo and his wife, Jeanette “Nettie” Ennis, purchased a plot of land and wood framed house at the corner of Ross and Pearl. The house was torn down and a new home was built in the same architectural style and resemblance as the Belo family home in Salem, North Carolina. Colonel Belo’s time in his new home was short. The family moved in around 1900. Colonel Belo died in 1901, succumbing to poor health which plagued him due to his Civil War battle wounds, including one from a duel. Upon his death, President Grover Cleveland said, “I feel it to be a personal loss, as he was a friend to whom I was warmly attached as a chivalrous, highminded man, and an exceptionally able, fearless and conscientious journalist. His death is a loss to the entire country.” The Belo family remained in the home until 1922. For most of the next 50 years, the structure operated as one of the city’s premier funeral homes, including as host to Clyde Barrow’s funeral—yes, Clyde of the famed outlaw team, Bonnie and Clyde. In the meantime, the Association was incorporated in 1947 as the Dallas Bar Association. It was the state’s first bar association to incorporate. Its first office was a 15-foot cubicle under the stairs of the Old Red Courthouse. In 1955, the DBA leased space in the Adolphus Hotel and later the Adolphus Tower. In 1976, visionaries of the Dallas Bar Association made a bold move in securing an option to purchase the Belo Mansion, ultimately buying the home in 1977, 40 years ago. Many members were concerned about the cost and finances. Other members had been to the home for the funerals of loved ones and were uncomfortable with the home as a bar headquarters. The home had been vacant for quite some time and needed significant repairs and restoration. DBA members and friends overcame these challenges and spent weekends scraping walls to their original paint colors and painstakingly returning the home to its original condition. A newly produced documentary video on the purchase of the Belo Mansion can be found on our website. Forty years after purchasing the Belo Mansion, the Dallas Bar Association has grown to over 11,000 members. With the addition of the Pavilion in 2003, the DBA now hosts thousands of meetings and events every year. By any measure, an argument can be made that the Dallas Bar Association is the most active metro bar association in the country. Last year, DBA members organized over 400 CLE events and collectively spent thousands of hours in community service to our school children and fellow citizens. I believe there are three main reasons why the DBA reaches these heights. First, we have the Belo Mansion, a unique meeting place, convenient to many, that has a world class food and beverage company within its walls. Second, as I wrote last month, we have been blessed with remarkable leadership from our Executive Director position. And third, our membership includes thousands of the most selfless and generous professionals of any organization in the country. I have said many times before, I do not believe there is another profession in North Texas that gives back to the community more than its lawyers—just spend one month visiting committee and section meetings at the Belo during the lunch hour and you will agree. The generosity of time and resources volunteered by all of you is humbling and inspiring. We are at the beginning of a new era in our membership. Generation X, a relatively small population, now holds a majority of leadership positions in the Association. With an aging Baby Boomer population, one-third of the DBA membership is 60 years of age or older. One-third of our membership is 36 years of age or younger, mostly members of the Millennial Generation. The rate of new lawyers is decreasing. That being said, the DBA’s membership has remained strong while many other metro bar associations’ memberships are in decline. Our legal community includes more sister bar associations than at any time in our history. Our six core sister bar associations (JLTLA, DHBA, DAABA, DAYL, DWLA, and DLGBTA) are exceptional, and all are leaders in their respective missions. Forty years later, the community we serve is also changing. The Dallas/Fort Worth Metroplex is now the largest inland metropolitan area in the United States and the fourth largest overall. It is also one of the fastest growing areas in the

country. Outlying suburbs continue to swell, but Downtown and Uptown areas have seen a revitalization as well, currently reshaping the Dallas skyline and hosting the nation’s largest contiguous arts district. Last year our city was the focal point of the world when five police officers were shot while protecting individuals marching in protest of police actions across the country. While Mayor Mike Rawlings and then Dallas Police Chief David Brown led our city through this difficult time, a spirit of unity was present. Faith leaders of all races worshipped together and citizens talked more openly of bringing all segments of our community together. Lawyers held a unity luncheon at the Belo Mansion with the six core sister bar associations delivering a joint resolution committing “to use our training to open our minds to be more understanding of others and to use our training and words to bring others together to open their minds.” So where do we go in the next 40 years? The mission statement of the Dallas Bar Association says, “The Dallas Bar Association’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary and the community.” We will continue to pursue this mission, and we will do so with an overriding principle that we are Stronger Together. This year we will partner in new initiatives with our sister bars, the judiciary, and neighboring bar associations. To name a few: Under the leadership of Krisi Kastl and Robert Tobey, and in partnership with our core sister bar associations, we will launch our Ambassadors Program aimed at identifying nonmember lawyers and educating them as to the benefits of membership, not only in the DBA, but also in our sister bars. Under the leadership of Dena DeNooyer Stroh and Dawn Estes, the DBA and DWLA are partnering to identify workable solutions to the significant challenges women face in the legal profession. The efforts will culminate in two high-profile events at the Belo Mansion later this year. On April 7, the DBA is partnering with the Tarrant County Bar Association and Arlington Bar Association for a “214/817 Night at the Ballpark” in the Hall of Fame Suite to build comradery, promote professionalism, and have fun. Nearly 50 judges plan to attend and 450 tickets have already been purchased. Under the leadership of Judge Bonnie Goldstein, Judge Martin Hoffman, and Laura Benitez Geisler, the DBA is working with the Judiciary and Dallas County officials to facilitate a more positive experience for citizens called to jury duty. Under the leadership of Chief Judge Barbara Lynn and Aaron Tobin, the DBA is partnering with the United States District Courts for the Northern District to bring the first Naturalization Ceremony to the Belo Mansion so DBA members and the public can more easily witness one of our great constitutional events. I believe our most lasting legacy in the next 40 years will be how we promote good relations in our community. The spirit following the shootings of 7/7/16 remains. The resolution we adopted calls for us to act. Lawyers have a unique skill set to bring all segments of our city closer together. Remember when every lawyers’ business card read “Attorney & Counselor at Law”? We are often counselors to our clients as much as we are litigators. Most of us represent people in conflicts. At times, we have to help our clients understand that jurors may not have the same perspective of the facts as they do. This experience can be used to help our citizenry come to understand each other better. We all think differently because we all come from different backgrounds and experiences; this is especially true when it comes to race. The only way to understand why a person thinks differently than we do is to listen to them. When we are willing to listen and learn others’ perspectives, we usually find what unites us is stronger than what divides us. This year the DBA is partnering with a broad coalition of thoughtful community leaders and entities for “2017 Year of Unity”. Former President George W. Bush is an Honorary Co-Chair. The kickoff press conference will be held at the Belo Mansion on January 24 (prior to press time for this column). This initiative will bring together people from all segments of our community in unique events to discuss race. At press time for this column, we are on the eve of the first of these events (January 16), when numerous DBA members are scheduled to host and facilitate dinner discussions on race through the Dallas Dinner Table program. Additional opportunities will be available throughout the year. Forty years from now, I hope the members of the Dallas Bar Association will look back at what we did during this time and be proud that the lawyers of Dallas led by bringing people together, knowing we are Stronger Together. Rob P.S. And did I mention, we are going to Cuba in April…

Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873

The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.

OFFICERS President: Rob D. Crain President-Elect: Michael K. Hurst First Vice President: Laura Benitez Geisler Second Vice President: Robert L. Tobey Secretary-Treasurer: Rocio Cristina Garcia Immediate Past President: Jerry C. Alexander Directors: A. Shonn Brown, Jonathan Childers, Dawn Estes, Sakina Foster, Stephanie Gause, Hon. Bonnie Goldstein (Judicial At-Large), Hon. Martin Hoffman, Christopher Kang (President, Dallas Asian American Bar Association), Krisi Kastl, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud (Vice Chair), Kate Morris, Cheryl Camin Murray, Erin Nowell, Paul Simon (President, Dallas Association of Young Lawyers), Tramaine Tinner (President, J.L. Turner Legal Association), Aaron Tobin (Chair), and Victor D. Vital Advisory Directors: Isaac Faz (President-Elect, Dallas Hispanic Bar Association), Ashlei Gradney (PresidentElect, J.L. Turner Legal Association), Shruti Krishnan (President-Elect, Dallas Asian American Bar Association), Stephanie Osteen (President-Elect, Dallas Women Lawyers Association), Jennifer Ryback (President-Elect, Dallas Association of Young Lawyers), and Dena DeNooyer Stroh (President, Dallas Women Lawyers Association) Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Leon Carter, John Jansonius, Gregory Sampson, and Brad Weber HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Josh Garza Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Alexander Farr and Keith Pillers Vice-Chairs: Andy Jones and Carl Roberts Members: Timothy Ackermann, Logan Adock, Wes Alost, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Amanda Brown, Paul Chappell, Charles Coleman, Shannon Conway, Rob Crain, James Deets, James Dockery, Maria Fernandez, Dawn Fowler, Andrew Gould, Susan Halpern, Meghan Hausler, Jeremy Hawpe, Beth Hearn, Lindsay Hedrick, Nicole Holland, Michael Hurst, Brad Jackson, Andrew Jones, Kristi Kautz, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravick, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jr., R. Sean McDonald, Kadie Michaelis, Terah Moxley, Jessica Nathan, Eugene Olshevskyy, Kirk Pittard, Laura Anne Pohli, Charles Price, Mark Rasmussen, Adam Reed, Kathy Roux, Joshua Sandler, Mary Scott, Jared Slade, Christopher Snyder, Thad Spalding, Shana Stein, John Stevenson, Scott Stolley, Amy Stowe, Adam Swartz, Ashely Swenson, Michael Tristan, Pryce Tucker, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karra Rybicki Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2017. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.

F e bruary 2017

D allas Bar A ssociation l Headnotes 5

Chris Hamilton Goes the Extra Mile.

RECENT VERDICTS AND SETTLEMENTS:

$27 million

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A record premises liability verdict

A jury verdict in a medical

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against fast food giant McDonaldâ&#x20AC;&#x2122;s

malpractice case over the medical

Claims Act case in which a

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error death of a North Texas

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6 He adnot e s l Da lla s Ba r Asso cia tio n

Focus

February 2017

Science & Technology/Intellectual Property Law

Patent Pirates: the Aftermath of Halo BY SADAF R. ABDULLAH

In Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S.Ct. 1923 (2016), the Supreme Court set aside nine yearsâ&#x20AC;&#x2122; worth of Federal Circuit precedent when it rejected the two-prong test for willful patent infringement established in In re Seagate, LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc). In perhaps one of the most cited statements in the Halo opinion, the Supreme Court clarified that, under 35 U.S.C. Â§ 284, a court should enhance damages when an infringerâ&#x20AC;&#x2122;s conduct is â&#x20AC;&#x153;willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or . . . characteristic of a pirate.â&#x20AC;? The Halo decision sparked an immediate firestorm of controversy, with one common theme: that it represented a sea change for analyses under Â§ 284. Many commentators speculated that the decision favored patent holders because it eliminated accused infringersâ&#x20AC;&#x2122; ability to defend against allegations of willfulness using solely objective evidence, and because the Supreme Court lowered the burden of proving willfulness from â&#x20AC;&#x153;clear and convincingâ&#x20AC;? to the â&#x20AC;&#x153;preponderanceâ&#x20AC;? standard. Others emphasized the Courtâ&#x20AC;&#x2122;s warning that â&#x20AC;&#x153;[a]wards of enhanced damages . . . are not to be meted out in a typical infringement case, but are instead designed as a â&#x20AC;&#x2DC;punitiveâ&#x20AC;&#x2122; or â&#x20AC;&#x2DC;vindictiveâ&#x20AC;&#x2122; sanction for egregious infringement behavior.â&#x20AC;? Since Halo, both the Federal Circuit and a number of district courts have had

the opportunity to apply Halo, and it turns out that the expected revolution may have been overestimated. To begin with, portions of the Seagate test still frame the analysis. The Federal Circuitâ&#x20AC;&#x2122;s decision in WesternGeco L.L.C. v. ION Geophysical Corp., 837 F.3d 1358 (Fed. Cir. 2016) is illustrative. First, and most importantly, the second part of the Seagate testâ&#x20AC;&#x201D;whether or not an accused infringer was subjectively willfulâ&#x20AC;&#x201D;has survived and has taken the forefront. The Federal Circuit went as far as to say that â&#x20AC;&#x153;Halo did not disturb the substantive standard for the second prong of Seagate . . . [r]ather, Halo emphasized that subjective willfulness alone . . . can support an award of enhanced damages.â&#x20AC;? Second, although WesternGeco acknowledges that the Supreme Court â&#x20AC;&#x153;rejected Seagateâ&#x20AC;&#x2122;s strict requirement that a patentee prove the objective unreasonableness of an infringerâ&#x20AC;&#x2122;s defenses,â&#x20AC;? the Federal Circuit stopped short of declaring that an objective analysis is irrelevant. Instead, noting that the district courtâ&#x20AC;&#x2122;s discretion on whether to enhance damages remains even after a jury finding of subjective willfulness, the WesternGeco court stated that â&#x20AC;&#x153;the objective reasonableness of the accused infringerâ&#x20AC;&#x2122;s positions can still be relevant for the district court to consider when exercising its discretion.â&#x20AC;? The court reasoned that Halo simply requires a district court consider the â&#x20AC;&#x153;totality of the circumstancesâ&#x20AC;? before enhancing damages, and objective unreasonableness can be one of those factors.

WesternGeco arguably shows the Federal Circuitâ&#x20AC;&#x2122;s movement toward replacing the two-pronged Seagate test with a modified two-pronged test: one that first considers subjective willfulness and, second, the totality of the circumstances of whether the infringerâ&#x20AC;&#x2122;s conduct is â&#x20AC;&#x153;egregiousâ&#x20AC;? enough for enhanced damages, with objective evidence relevant to the latter. Adding to these indications that the ghost of Seagate lingers, experience in the district courts shows that Halo has not opened a floodgate of enhanced damages for patent infringement plaintiffs. In at least one case, the district court, citing its discretion under Halo, denied the plaintiff enhanced damages even after a jury found subjective willfulness. In other cases, judges dismissed claims for enhanced damages at the summary judgment stage, citing the Halo standard in holding that no reasonable jury could find for the plaintiff.

Still, at least as a conceptual matter, Halo opens the door for plaintiffs looted by patent pirates to advance their causes without having to overcome the obstacle of Seagateâ&#x20AC;&#x2122;s objective prong. For example, a patent holder in an â&#x20AC;&#x153;efficient infringementâ&#x20AC;? context (where a business decides it will be cheaper, due to resource differentials and reduced litigation risk from small players, to steal patented technology rather than to license it and pay a royalty to the inventor) can now raise the stakes on a potential infringer, and the infringerâ&#x20AC;&#x2122;s ability to escape enhanced damages based solely on objective considerations is severely curtailed. It is likely that benefits to plaintiffs in these types of circumstances HN will become apparent. Sadaf R. Abdullah is a partner at Skiermont Derby LLP an adjunct professor at the UNT Dallas College of Law. She can be reached at sabdullah@skiermontderby.com.

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F e bruary 2017

D allas Bar A ssociation l Headnotes 7

8 He adnot e s l Da lla s Ba r Asso cia tio n

February 2017

DBA Board Elects Chair and Vice Chair STAFF REPORT

At its January Organizational Meeting, the Dallas Bar Association Board of Directors elected Aaron Tobin Chair of the Board and Karen McCloud Vice-Chair of the Board for 2017. Mr. Tobin, of Anderson Tobin, PLLC is a 2000 graduate of the SMU Dedman School of Law. He has been active in the Dallas Bar for many years. He currently chairs the Bylaws and Finance Committee and has chaired the Media Relations Committee, Public Forum Committee, and the Bench Bar Conference Committee. He Co-Chaired the Professionalism Committee and served as Co-Chair of the 2012-2013 Campaign for Equal Access to Justice. Mr. Tobin is Board Advisor to the Business Litigation Section and Energy Law Section. He also serves on the DBA Community Service Fund Board and is a Fellow of the Dallas Bar Foundation. He joined the DBA Board of Directors in 2012. Ms. McCloud, of Karen D. McCloud, P.C., is a 1999 graduate of Georgetown University Law Center. Ms. McCloud is a Co-Chair of the 2016-2017 Campaign for Equal Access to Justice, which raised over $1 million. She currently chairs the Judicial Investiture Committee, is a Co-Vice Chair of the Judiciary Committee, and Vice Chair of the Bylaws Committee. In addition, she is the Board Advisor for the Bar None and Judicial Investitures Committees and the Family Law and Labor & Employment Law Sections. She joined the DBA Board of Directors in 2008 The Board also appointed Hon. Bonnie Goldstein, of the 44th District Court, to serve a one-year judicial at-large

Aaron Tobin

Hon. Bonnie Goldstein

Karen McCloud

Sakina Foster

position. Judge Goldstein is a graduate of The George Washington University Law School. She is Board Advisor to the Memorial & History Committee and Science & Technology Law Section.

Erin Nowell

Filling a two-year at-large director position is Sakina Foster. Ms. Foster, a 2003 graduate of The University of Texas School of Law, is a Partner at Haynes and Boone, LLP, where her prac-

tice focuses on finance and investment management. She served as the 2016 Secretary-Treasurer of the Board is currently Board and Advisor to the Minority Participation and Peer Assistance Committees and the International Law Section. Filling a one-year at-large director position is Erin Nowell. Ms. Nowell is a 2003 graduate of The University of Texas School of Law and a Shareholder with Simon Greenstone Panatier Bartlett, PC. She is currently Co-Chair of the Public Forum Committee and has served as a Co-Chair for the Minority Participation Committee and is currently the Board Advisor to the Publications and Senior Lawyers Committees and the Appellate Law Section. The 2017 board also includes: President Rob Crain; President-Elect Michael Hurst; First Vice President Laura Benitez Geisler; Second Vice President Robert Tobey; Secretary-Treasurer Rocío Cristina García; Immediate Past President Jerry Alexander; Directors Shonn Brown, Jonathan Childers, Dawn Estes, Stephanie Gause, Hon. Martin Hoffman, Chris Kang, Krisi Kastl, Angelina LaPenotiere, Bill Mateja, Kate Morris, Cheryl Camin Murray, Paul Simon, Tramaine Tinner, and Victor Vital; Advisory Directors Issac Faz, Ashlie Gradney, Shruti Krishnan, Stephanie Osteen, Jennifer Ryback, and Dena DeNooyer Stroh; ABA Delegates Rhonda Hunter and Hon. Elizabeth Lang-Miers; and State Bar Directors: Leon Carter, John Jansonius, Greg Sampson, Scott Stolley, and Brad Weber. HN

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F e bruary 2017

D allas Bar A ssociation l Headnotes 9

Dear Citizens of Dallas: The Equal Access to Justice Campaign is an annual fundrais

! " # $ % &&& ' () ( ( * +&& &&& , . / ( ( 0 ' 0

PRESIDENTâ&#x20AC;&#x2122;S COUNCIL ($30,000)

PLATINUM ($10,000)

Connatser Family Law Crain Lewis Brogdon, LLP Perkins Coie LLP

Dallas Association of Young Lawyers Corporate Counsel Section Deans & Lyons Exxon Mobil Corporation Gary & Donna Fowler Gardere Wynne Sewell LLP The Hartnett Law Firm Haynes and Boone Foundation Jackson Walker LLP Jones Day KASTL LAW, PC KoonsFuller, PC Locke Lord LLP Mike McKool Norton Rose Fulbright LLP Sidley Austin Margaret & Jaime Spellings Thompson & Knight Foundation Vinson & Elkins

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Michael K. Hurst DBA President-Elect

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Karen McCloud Campaign Co-Chair

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Montes Law Group Robert T. Mowrey Ellen & Will Pryor Reese Gordon Marketos LLP Securities Section Sedgwick LLP Simon Greenstone Panatier Bartlett, PC John D. Solana Smith Hargrave Law Frank E. Stevenson II Strasburger & Price Tax Law Section Trial Skills Section Peter Vogel & Marguerite Burtis Robb Voyles

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SPONSORS ($1,000)

Kathleen Kearney Kelly Hart & Hallman LLP Larry & Joan Kelly David Kent Kilgore & Kilgore, PLLC Koning Rubarts LLP Jill Kotvis Lackey Hershman LLP Neel & Lynn Lemon Eric A. Liepins Matthew Lloyd Robert E. Luxen Elizabeth Mack Jacob B. Marshall John H. Martin Mary Kay Inc. Rebecca & Michael Massiatte Charles W. Matthews, Jr. David R. McAtee, III Kelly McClure P. Mike McCullough, Jr. P. Mike McCullough, Sr. John H. McDowell Harriet Miers Millennium Settlements Retta A. Miller Honorable Kenneth H. Molberg Honorable Mary L. Murphy Cheryl Camin Murray Maureen Murry Erle Nye Emmanuel Obi Emily Parker Kip Petroff The Pettit Law Firm Joseph Pevsner Eric Pinker Aubrey â&#x20AC;&#x153;Nickâ&#x20AC;? Pittman Tino A. Ramirez Robert F. Ruckman John Salazar Shackelford, Bowne, McKinley & Norton LLP Daniel Sheehan & Associates Sorrels Udashen & Anton Barry Sorrels Pamela St. John Stafford Barrow PLLC Paul Stafford Courtney Stamper & Ashlie Alaman Stamper Richard G. & Sandra J. Stewart Robert J. Stokes Dena Denooyer Stroh Michael W. Tankersley Texas Lawbook Aaron & Jennifer Tobin Karin B. Torgerson Karen Blakely Turner Phillip C. Umphres Verner Brumley Mueller Parker PC Joel & Terilyn Winful Donors as of January 16, 2017

10 He adnot es l Da lla s Ba r Asso cia tio n

February 2017

The Inauguration of Rob Crain The Inaugural of Rob Crain, DBAâ&#x20AC;&#x2122;s 108th President, was held January 14, 2017. It was an elegant evening, with fashionably dressed guests, a silent and live auction, a casino party and dancing. Each year, the Inaugural is the culmination of the Campaign for Equal Access to Justice. This year, an amount of $1,108,032 was raised for the Dallas Volunteer Attorney Program. Congratulations to this yearâ&#x20AC;&#x2122;s Ticket to Drive Raffle winner: Cat Needham, who will take home a 2017 Mercedes Benz and runner up Mark Alexander, winner of the Sonoma Valley Winemaker Travel Package.

F e bruary 2017

D allas Bar A ssociation l Headnotes 11

108th President of the DBA

THANK YOU CRAIN LEWIS BROGDON

for underwriting the Inaugural Casino Party!

12 He adnot es l Da lla s Ba r Asso cia tio n

Focus

February 2017

Science & Technology/Intellectual Property Law

Intellectual Property Primer for In-House Counsel BY SHANNON W. BATES

In-house counsel may be responsible for “all things legal”, regardless of their primary area of expertise. That can be daunting when it comes to technically complex practice areas like intellectual property (IP). This article is intended to give in-house counsel a baseline understanding of IP, including how and when to protect your company’s IP.

Patents Patents protect inventions. Utility patents protect the functional aspects of inventions, while design patents protect the aesthetic aspects of inventions. For example, utility patents protect processes, machines, articles of manufacture, or compositions of matter; whereas design patents protect aesthetic aspects of articles, such as their shape, their surface ornamentation, or both. Patent protection is not automatically conferred. Instead, it is only available by filing a patent application, which undergoes examination to obtain an issued patent. In the United States, patent applications must be filed within one year from an offer to sell or public disclosure of the invention, otherwise patent protection is barred. Because the United States is a first-to-file country, the patent application should also be filed with expediency once the invention is identified. A patent provides the owner, for a limited time, the exclusive right to make, use and sell the patented invention. Without

a patent, there is no legal recourse to prevent others from making, using, or selling a copycat invention. In the United States, utility patents expire 20 years from the filing date, if periodic maintenance fee payments are made during the patent term. Design patents expire 15 years from the grant date, and there are no maintenance fee requirements.

Trademarks Trademarks protect brands. Trademarks are source identifiers that allow consumers to distinguish between goods and services offered by different companies. The Nike “swoosh” and the McDonald’s “golden arches” are examples of well-known trademarks. Trademarks can be letters, words, phrases, logos, symbols, and even colors or sounds. Trade dress—the non-functional, visual appearance of a product or its packaging that makes it recognizable—is also protectable. Common law trademark rights are established simply by using the mark in commerce, but those rights are generally limited to the geographic area in which the mark has been used. There are many benefits to registering a trademark, including presumptive rights and additional remedies, constructive notice to third parties of the trademark owner’s rights, and use by the U.S. Trademark Office to deny later-filed third-party trademark applications. Trademark rights are maintained by continued use of the mark. The owner

of a U.S. Trademark Registration must submit a Declaration showing use of the mark between the 5th and 6th year to maintain the registration during its initial 10-year term. Additional 10-year terms may be obtained indefinitely by filing renewal applications confirming continued use of the mark in commerce.

Copyrights Copyrights protect creative works. Specifically, copyrights protect original works of authorship. Copyright protection applies to a broad array of creative works, from books, movies, songs, paintings and sculptures, to architectural drawings, computer software code, user manuals, retail catalogs, and designs of utilitarian articles, such as furniture and flatware. Copyrights give the owner exclusive rights to reproduce, display, perform, distribute, and create derivatives of the creative work, and the right to prevent others from violating any of these rights without permission. Although limited copyright protection is automatically conferred, registering a copyright is advisable since copyright registrations provide strong remedies against infringers. Copyright applications should be filed within three months after publication of the work to ensure statutory damages and attorney’s fees are available remedies. Copyrights extend for various durations depending on the circumstances of authorship, but the general copyright

term is based on the life of the author plus 70 years.

Trade Secrets Trade secrets protect confidential business information. Generally, trade secrets are business information that derives economic value by not being known by competitors. There is no means to register a trade secret, so trade secret protection accrues from its nature—by not being generally known or readily ascertainable, and being the subject of reasonable efforts to maintain its secrecy. The two relevant statutes for Texas in-house counsel are the Texas Uniform Trade Secrets Act (TUTSA) and the federal Defend Trade Secrets Act (DTSA). Fact-based strategy will guide under which statute to pursue a claim for misappropriation of trade secrets. In certain circumstances, business information may be protectable as a trade secret or as a patentable invention. Choosing which protection to pursue involves tradeoffs. Patents allow the owner to prevent infringing use, but only for a limited time; whereas trade secrets allow the owner to potentially prevent misappropriation indefinitely— so long as the company can keep the secret. HN Shannon W. Bates is a founding partner of Griffith Bates Champion & Harper LLP and the current Secretary of the DBA IP Section. She can be reached shannon.bates@ griffithbates.com.

Elayna Erick, Ron Massingill, Maryann Brousseau, Matthew Naftis

F e bruary 2017

Focus

D allas Bar A ssociation l Headnotes 13

Science & Technology/Intellectual Property Law

Mitigating Legal and Business Risks for Cyber Intrusions BY ERIC LEVY AND PETER VOGEL

Cyber intrusions make the headlines daily, and because virtually every company, large or small, relies on computers and the Internet to conduct its business, these intrusions present lawyers and clients with a high degree of exposure. As a result, it should come as no surprise that the cyber insurance market currently generates about $2.5 billion dollars in premiums, and current estimates suggest that figure will triple by 2020. But does every company or lawyer need cyber insurance? And if they do, what types of cyber coverage should they obtain? This article will look at the different types of cyber policies currently available, considerations for determining which coverages to purchase, and how the process of actually applying for the insurance can be a useful tool in assessing your and your clientâ&#x20AC;&#x2122;s current cyber security posture. Unlike the more established insurance markets, where form policies and policy language are relatively common, cyber insurance policies and the specific insuring agreements vary markedly. Some cyber policies provide for a broad grant of coverage, paying, for example, â&#x20AC;&#x153;event response costsâ&#x20AC;? in response to a â&#x20AC;&#x153;security incidentâ&#x20AC;? for any known â&#x20AC;&#x153;triggering events.â&#x20AC;? Depending upon the definitions within the policy terms, this kind of policy would seem to apply to a variety of cyber incidents and the monetary losses associated with them, although you may wind up paying more for coverage that you really do not need.

Other forms, like Travelersâ&#x20AC;&#x2122;s CyberRisk Policy, provide for a more Ă la carte approach, with separate cyber insuring agreements for Crisis Management Event Expenses, Data Restoration Expenses, Regulatory Defense Expenses, and the like. Thus, if your company or law firm does not regularly obtain personal information from its customers or clients, you may not feel the need to purchase coverage for â&#x20AC;&#x153;Security Breach Notification Expenses,â&#x20AC;? and this kind of cyber policy would allow you to make that choice (and perhaps pay less in premiums). However, the narrow focus of each of these coverages means that it may be easier for the insurer to deny coverage for that (ultimately unforeseen) cyber event or loss that falls outside of them. In the above example, a data breach that involved the theft of personal information from a companyâ&#x20AC;&#x2122;s employees would not be covered because coverage for â&#x20AC;&#x153;Security Breach Notification Expenses,â&#x20AC;? had not been purchased. If you are not intimately familiar with the types of cyber risks or losses that could affect your company or your law firm, you may be better off with a cyber policy that provides for a more general grant of coverage. When shopping for a cyber policy, one should also consider whether you need to purchase any third party coverage. Unlike first party coverage, which seems to be a common feature in virtually all cyber insurance policies (and indeed, one of the main reasons why the cyber insurance market sprang up in the first place), third-party losses resulting from cyber incidents, including any costs associated with providing a defense to an insured in any ensuing

litigation or enforcement actions, may still be covered under the companyâ&#x20AC;&#x2122;s Commercial General Liability (CGL) policy. The case law around CGL policies is rather fractured, with some states finding coverage for such losses and others finding none, so it is worth a consultation with your insurer to see whether third party coverage for things like data breaches already exists (or whether the CGL Policy can be modified by endorsement to cover them). If it does not, it may be worth purchasing third-party coverage on the cyber policy. Reviewing the cyber insurance application can be a useful tool if you are not sure what kinds of coverage to purchase (or how much to spend). While cyber insurance applications started out rather alarmingly short, most cyber insurance applications today ask about virtually every facet of the insuredâ&#x20AC;&#x2122;s information gathering operations, including, without limitation,

technical security protocols, employee training in cyber security, and the precise relationship that the company has with third-parties with whom it shares data. There will also be enquiries about the existence of, and compliance with, data protection policies, what kind of data is being collected (and how much), who has access to the data and how is it used. Rather than guess at the answers in an effort to quickly secure coverage, consider using the cyber insurance application as a template for conducting, under the guidance of an experienced privacy attorney, a company-wide privacy and cyber security audit. It will take a bit longer, but it will go a long way towards providing your company with exactly the right amount of cyber HN insurance. Eric Levy is a Senior Attorney at Gardere and Peter Vogel is a Partner at the firm. They can be reached at elevy@gardere. com and pvogel@gardere.com, respectively.

NEW LAWYERS! Learn More About the Transition to Law Practice Program All new lawyers interested in having an experienced mentor to guide them in the practice of law should contact kzack@dallasbar.org for more information. Donâ&#x20AC;&#x2122;t Miss Out on This Valuable Opportunity! www.dallasbar.org/transitiontolawprogram

Intellectual Property Attorneys

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14 He adnot es l Da lla s Ba r Asso cia tio n

Focus

February 2017

Science & Technology/Intellectual Property Law

Fair-Use Implications of Using the Logos of Others BY TRACEY B. DAVIES AND DAVID J. TOBIN

Door locks, thermostats, and even shoes can now be connected to the Internet—a phenomenon known as the Internet of Things (IoT). The increasing prevalence of IoT devices generates IP challenges. One such challenge stems from device manufacturers publicizing that their physical devices are compatible and can be internetworked with the products of others, such as smartphones. Using another’s logo to advertise compatibility can present infringement risks, because logos may be trademarked, and sufficiently artistic logos may also be copyrighted. In certain circumstances, the use of trademarked and copyrighted logos may be permissible under the doctrine of fair use.

Nominative Fair Use of Trademarks The doctrine of nominative fair use permits using another’s trademark to reference the trademark owner’s product, so long as (1) only as much of the trademark as necessary to identify the product is used, and (2) that limited use does not suggest affiliation, sponsorship, or endorsement by the trademark owner. La. State Univ. A&M Coll. v. Smack Apparel, 550 F.3d 465 (5th Cir. 2008). Whether nominative fair use applies, particularly to logos, depends on the facts of each case. One court applied nominative fair use to a licensor’s website that listed the logos of a dozen licensees using similar sizes. Wi-LAN v.

LG Elecs., 2011 WL 3279075 (S.D.N.Y. 2011). Other courts declined to apply fair use for a tourist map using a stylized form of “DISNEYLAND” accompanied by the castle logo, or for a collector’s guide using the “TY” Heart logo along with bold lettering. Ty v. Pubs. Int’l, 2005 WL 464688 (N.D. Ill. 2005). Such courts have found use of the logo excessive when words alone would have sufficed.

Fair Use of Copyrights There are four factors to consider in determining fair use of copyrights. 17 U.S.C. § 107. The first factor addresses the purpose and character of the use, such as whether the use is commercial or transformative. Courts are more likely to find fair use for a truthful comparative advertisement, which lessens the significance of its commercial nature. Triangle Pubs. v. Knight-Ridder Newspapers, 626 F.2d 1171 (5th Cir. 1980) (newspaper television-schedule insert featuring a photograph of TV Guide). The second factor addresses the nature of the copyrighted work. Courts are more likely to find fair use for logos and images that have been widely disseminated on the Internet, as compared to unpublished materials, “because the first appearance of the artist’s expression has already occurred.” Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003) (search engine displaying thumbnails of widely distributed images). The third factor addresses the amount and substantiality of the portion

used in relation to the copyrighted work as a whole. Courts are more likely to find fair use when the entirety of the logo is needed for its “factual content,” as opposed to its “expressive content,” in order to fulfill the “legitimate transformative purpose” of the use. Bouchat v. Balt. Ravens, 737 F.3d 932 (4th Cir. 2014) (historical sports video featuring team logo). The expressive content can be reduced by “display[ing] the minimal image size and quality necessary to ensure the reader’s recognition of the images.” Bill Graham Archives v. Dorling Kindersley, 448 F.3d 605 (2d Cir. 2006). The fourth factor addresses the effect on the potential market for the copyrighted work. Courts are more likely to find fair use when there is no market for the copyrighted artwork itself (e.g., a logo used on a label), even if there is a market for products sold under that label. S&L Vitamins v. Austl. Gold, 521 F. Supp. 2d 188 (E.D.N.Y. 2007).

Practical Guidelines Application of the fair use doctrine is a fact-intensive inquiry. To increase the likelihood it will apply, users should consider: r circumventing the issue by obtaining permission from the IP owner to use its logo;

r avoiding logos or distinctive lettering, if words are sufficient to identify the products of others; r avoiding unpublished logos; r not using logos to generate attention or as a stand-alone symbol (e.g., the only logo on the page); r not emphasizing one particular logo over other logos or descriptive matter, such as by size, frequency, or font; r displaying logos using as small a size and image quality as possible; r including additional description and referential phrases (e.g., “runs on” or “compatible with”), rather than a bare listing of logos; and r including a conspicuous disclaimer of endorsement, sponsorship, and affiliation that is at least as large as the logos. As a reminder, any statements about compatibility with the products of others should be truthful and not HN misleading. Tracey Davies and David Tobin practice in the Intellectual Property group of Gibson, Dunn & Crutcher LLP. They can be reached at tdavies@gibsondunn.com and dtobin@gibsondunn. com, respectively. The opinions expressed in this article are solely those of the authors, and not the ﬁrm or any clients, and should not be construed as providing legal advice.

DVAP’s Finest Kathy Kinser Kathy Kinser practices family law at Kinser & Bates, L.L.P. She first got involved with DVAP when Ken Fuller started recruiting family law attorneys to help pro bono clients with uncontested divorces. Ken made it clear that the biggest need was in the family law area and all family lawyers, regardless of their years of experience, needed to step up. So she did. She tries to take the cases that cannot be placed, or locate one of her colleagues to do so. Her goal is that no family law pro bono client be turned away. In the last 12 years, she has dedicated at least 10 percent of her billable hours to pro bono service. “Some of the most rewarding work I have done in my career has been for DVAP and I am so honored to continue that work for years to come,” she said. Thank you for all you do, Kathy!

Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.

Jim Shields and the team at Shields Legal Group collect essentials for Hope Supply Company

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Corporate Law, Commercial Litigation and Financial Services departments are looking for Attorneys with experience handling securities and broker dealer matters, international and domestic taxation, bankruptcy, real estate, intellectual property, international law, corporate structure, asset protection, land use, and mergers and acquisitions. Portable book of business is a plus. Also seeking 1-4 year Associates. Email resume to RESUME@QPWBLAW.com

F e bruary 2017

D allas Bar A ssociation l Headnotes 15

ClassiďŹ eds

February

EXPERT WITNESS

Downtown Dallas â&#x20AC;&#x201C; Historic KATY Building. Two window offices and secretarial space available, in the historic KATY Building overlooking the Dallas County Courthouses. Receptionist, notary, phone system, conference room, Wi-Fi, fax and copier provided for tenants use. No deposit or lease required. Please inquire at (214) 748-1948.

Economic Damages Experts â&#x20AC;&#x201C; HSNO is the Forensics Firm. The Dallas office of HSNO has six CPA testifying experts who specialize in the calculation of economic damages in areas such as commercial lost profits, personal lost earnings, business valuations, property damage, insurance litigation, intellectual properties, commercial litigation, contract disputes, bankruptcy, and fraud. HSNO is qualified in most industries including, but not limited to; energy (offshore and onshore), manufacturing, hospitality, service, insurance, transportation, entertainment, product liability and construction. HSNO has 17 U.S. offices and an office in London. Contact Peter Hagen or Karl Weisheit at (972) 980-5060 or go to HSNO.com.

Historic West End Building that was the first City Jail has offices available. 1 year lease required. Walking distance to Courts. One block from DART stop. Beautifully renovated. www.mileybrown.com. Contact Sarah or Craig: (214) 692-8800. Uptown - Executive Office space available for lease in a professional Legal environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax and copy machines, two conference rooms, two kitchen areas, and plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa (214) 696-9253 for a tour.

Mexican Law Expert - Attorney, former law professor testifying for 20 years in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/ defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 222-9494. dlopez@pulmanlaw.com

Addison A/V Rated law firm with great location at Belt Line and Dallas North Tollway has two, adjacent offices and secretary bay for lease. One office is partner-size, and one is partner/associate size. Offices come with telephone service and receptionist, use of conference rooms and kitchen area, work/ copy room, some additional storage, covered parking and Wi-Fi. Kelly@crb-law.com

Economic Damages Experts - Thomas Roney has more than twenty five yearsâ&#x20AC;&#x2122; experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, and business valuation matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. â&#x20AC;&#x153;We Count.â&#x20AC;?

Walnut Hill/Greenville/Rambler. Two adjacent window offices and support staff space available in a professional legal environment with experienced attorneys. Convenient Class A hospital district building; includes phone and Internet, shared use of conference room and kitchen. Email hl@ bsdslaw.com or call (972) 233-3328. Office Space Available - 1700 Pacific Avenue. Title insurance agency has 3,000 square fee +/- available for sublease. The remaining term on the lease is 4+ years. We will consider any term of one year or more. The rate is $17.00 + E and parking is included. The suite is partially furnished and has a reception area, conference room, small library, and four offices. Three high quality cubicles are available to use. Photos and a floor plan are available upon request. There is a large conference room available on a â&#x20AC;&#x153;space availableâ&#x20AC;? basis for the sub-tenants use, in our suite. Please contact Mike Neary (214) 8555950 or mike@sentineltitlecompany.com if interested.

OFFICE SPACE

Downtown Dallas. Sub-Lease one or two very modern, newly built law offices (secretary station also available) in Class A building near downtown Dallas in executive suite-type arrangement. Building provides 24/7 security and restaurants. In-office amenities provided, including receptionist, telephone and Wi-Fi access, conference rooms, stocked kitchen and some storage; parking, paper and postage not included. Call Kathleen at (214) 965-9999.

JOURNEY TO CUBA WITH THE DBA! APRIL 17-21, 2017 A cross-cultural Educational Exchange organized by Cuba Cultural Travel

Downtown Dallas - Arts District. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265. North Dallas - LBJ Freeway. Law Firm â&#x20AC;&#x201C; North Dallas - For Lease: Professional office space, 12222 Merit Tower, offers conference room, receptionist, Internet service, lobby kitchen, parking. Available 3/1/17. Email Amy at arobinson@englishpllc.com or (214) 528-4300.

POSITIONS AVAILABLE

GoransonBain is seeking a paralegal for its Plano office. Minimum of five years of family law experience is preferred. Please send resume in confidence to cjestis@gbfamilylaw.com. Transactional & Regulatory Attorneys. A novel approach fuels rapid expansion. Exall & Wood is adding a select group of transactional and regulatory attorneys to its team located in Uptown Dallas. Find out what makes us unique at https://www. exallwood.com/career-opportunities/ Join Growing Dallas Firm. Great new firm with excellent opportunity for growth and profit seeks experienced lawyers to join our North Texas practice. Opportunities include working remotely or in our downtown Dallas office. Better compensation model, better technology, better opportunity. See our recruiting website and video at careers.emmertparvin.com. Palmer & Manuel, LLP, a 14 attorney firm in Campbell Centre, seeks one or two experienced attorneys with established practices to join our family law team and/ or our general civil practice group. Work with us, not for us. Our formula based compensation system allows attorneys to keep a substantial portion of their fees. See our website at www.pamlaw.com or contact Steve Palmer or Rebecca Manuel at (214) 242-6444. Litigation Paralegal. Downtown Dallas Litigation Boutique Firm is looking to hire a Litigation Paralegal with a minimum of 5-7 years of litigation experience for fast paced, mid-sized office. Strong knowledge of Microsoft Office, including Word, Outlook, Excel and PowerPoint, Adobe Pro is essential. Experience with WestLaw, LexisNexis and Tabs3 is also beneficial. This firmâ&#x20AC;&#x2122;s practice focus is civil litigation, both plaintiffâ&#x20AC;&#x2122;s personal injury / products and defense litigation. Practice experience in these areas is a requirement. Qualified candidates will be able to multitask and support multiple cases simultaneously.

Candidates should have experience with billing and time entry, drafting legal documents, preparing discovery, including e-Discovery, records requests and review, redaction of documents, vetting experts, conducting background searches, mediation and trial preparation. Additionally, candidates must have a professional appearance and demeanor and be able to work in a confidential environment. Firm offers a competitive salary, paid health insurance, 401k, paid parking, paid vacation and bonus opportunities. Please forward resume with salary requirement and reference list to Robin Zornes at rzornes@deanslyons.com. Confidentiality guaranteed.

SERVICES

Licensed Spanish Court Interpreter. Trials, Hearings, Depositions. Translations: legal documents, contracts, articles of incorporation, financial and technical correspondence. 1623 Main St. Suite 210, Dallas TX 75201. Email: Agsantos3@live.ru or call: (832) 916-0283. Credentialed Forensic Genealogist & Attorney â&#x20AC;&#x201C; hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www.ProfessionalAncestryResearch.com. Wanda Smith, (972) 836-9091. Litigation Help â&#x20AC;&#x201C; From a Lawyer. Donâ&#x20AC;&#x2122;t panic, help is available. I have 20-plus years of experience in civil litigation, and I am available on a contract basis to assist with discovery, research, briefing, trial preparation â&#x20AC;&#x201C; you name it. Call (214) 725-0260. Energy Acquisition(s): I buy any size royalty(ies), mineral(s), working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Kirk Leitch or Brenda Phillips at 1 (800) 760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.

Last chance for a new directory photo! There are two upcoming photo sessions available to have your photo updated for the 2017 DBA Directory.

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Texas Lawyersâ&#x20AC;&#x2122; Assistance Programâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Ś...(800) 343-8527 Alcoholics Anonymousâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Ś...(214) 887-6699 Narcotics Anonymousâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Ś.(972) 699-9306 Al Anonâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Ś..â&#x20AC;Ś..(214) 363-0461 Mental Health Assocâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Ś.â&#x20AC;Ś(214) 828-4192 Crisis Hotlineâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Ś..1-800-SUICIDE Suicide Crisis Ctr SMU.â&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Ś...(214) 828-1000 Metrocare Servicesâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Śâ&#x20AC;Ś...(214) 743-1200 0RUH UHVRXUFHV DYDLODEOH RQOLQH DW ZZZ GDOODVEDU RUJ FRQWHQW SHHU DVVLVWDQFH FRPPLWWHH

16 He adnot es l Da lla s Ba r Asso cia tio n

February 2017