Dallas Bar Association
HEADNOTES
Focus Computer/Intellectual Property Law
June 2012 Volume 37 Number 6
Focus
Law Day Luncheon
Computer/Intellectual Property Law
The America Invents Act: Changes to U.S. Patent Laws By BY Timothy TIMOTHYW. G. Ackermann ACKERMANN
(Above) On May 4, local judiciary and attorneys attended the 2012 Law Day Luncheon at which Hon. Sam Lindsay, Judge of the Northern District of Texas, was the keynote speaker. Top: Justice Phil Johnson, Judge Lindsay, DBA President Paul K. Stafford and Justice Debra Lehrmann. In addition to awards presented to the winners of the Law Day DISD art and essay contests, the Dallas Association of Young Lawyers President Chip Brooker presented awards for (bottom left) Outstanding Mentor (Judge Martin Hoffman) and (bottom right) the Liberty Bell Award (Bette Buschow).
Focus
Last September’s amendments to the patent laws—commonly known as the “America Invents Act” or “AIA”—touch upon many areas, including how to get a patent, what the fees are, defenses in patent lawsuits and U.S. Patent and Trademark Office (PTO) review of already-issued patents. Here are some highlights: First, the best-known provisions are those changing how the patent-filing and granting process works. For applications filed after March 16, 2013, patents will be granted upon a “first-to-file” system. Rather than focusing on when something was invented, the “effective filing date” will be the actual filing date, or the date of the earliest application (e.g. an earlier U.S. or foreign application) to which it may claim priority. This will make filing early more important. The AIA also changes “prior art”—that is, what the PTO or a court can use to conclude an invention is not patentable because it was not new or would have been obvious. Prior art, for post-March 2013 applications, has been broadened to include anything “patented, described in a printed publication, or in public use, on sale, or otherwise available to the public” before the effective filing date. Under the pre-amendment provisions—which will apply
for many years to applications and patents filed before that date—certain acts or things are not prior art unless they occur or exist in the United States. Other amendments include fee-setting authority for the PTO (for recovering its “aggregate estimated costs”), a fee for prioritized examination and penalty for paper applications, the opening of a satellite PTO office in Detroit and the deeming of tax strategies as being within the prior art, making them not patentable unless combined with other technology. Next, the AIA altered a number of substantive and other provisions concerning patent litigation. Perhaps the two highest profile changes concern areas seeing public criticism in recent years. Plaintiffs must now have suffered a “competitive injury” to seek damages for false patent marking, and only the government can seek a penalty for each article marked falsely. The statute also now permits virtual marking— via a link to a website—and eliminates the risk of retaining the number of a now-expired patent. Plaintiffs can also no longer join a number of accused infringers in the same case solely because each is alleged to have infringed the patent. Rather, they must meet a joinder test relating to an infringing act that concerns “the CONTINUED ON PAGE 12
Computer/Intellectual Property Law
Non-traditional Trademark: Louboutin Red Sole Shoes by Dyan M. House
Apple®. Nike®. Starbucks®. All are wellknown trademarks. We recognize the word marks and know the icons that represent these brands—the apple, swoosh and mermaid, respectively. But a trademark can be something other than a name or a logo. A color, sound, shape or smell can function as a trademark as long as it identifies the source of goods or services and is not purely functional. Business owners often have the mistaken view that only a logo design can function as a trademark. For this reason, it is important to take a global inventory of the products and services of the business and how they are marketed. When this is done it will become apparent that product names, service identifiers and slogans may function as marks. Some of the most valuable trademarks fall into the category of “non-traditional” marks such as color, product shape, sound or smell. The Lanham Act provides for registration of “any word, name,
symbol, or device, or any combination thereof” used “to identify and distinguish” the goods or services of one party from another. The NBC chime, the Harlem Globetrotters’ theme music, and the Pillsbury Doughboy giggle are all examples of sound marks. Examples of product shape marks include the CocaCola bottle and the iPod. Robin’s egg blue for jewelry (Tiffany & Co.), pink insulation (Owens-Corning), canary yellow notes (3M’s Post-It Notes) and brown delivery vehicles (United Parcel Service) are among the most well-known examples of color marks. For non-traditional marks such as color, the mark must come to identify particular goods or services of the mark’s owner before it can rise to the level of a protectable trademark. It is well established that color cannot be protectable as a trademark if it performs a utilitarian function. If a color is essential to the use or purpose of a product, or if it affects the cost or quality of a product, it may not rise to the level of a trademark. Color may be protectable where the
color has attained “secondary meaning” identifying and distinguishing a particular brand. Robin’s egg blue by itself does not indicate the source of luxury jewelry. It is through Tiffany’s substantially exclusive and continuous use, and extensive advertising, that robin’s egg blue has come to be known as “Tiffany blue.” A recent case found two giants of fashion arguing over whether color is a protectable trademark as applied to shoes. This case involved famed shoe designer Christian Louboutin, whose shoes bear the recognizable lacquered red sole, suing Yves Saint Laurent for trademark infringement for YSL’s use of a red outsole in its 2011 cruise collection. Louboutin obtained a federal registration for a lacquered red sole on footwear in connection with “women’s high fashion designer footwear.” But despite the fame of the red sole, substantially exclusive use, secondary meaning and a federal registration, the district court held that the lacquered red sole is not entitled to trademark protection under the Lanham
Act. Christian Louboutin S.A. et al v. Yves Saint Laurent America, Inc. et al, 778 F.Supp.2d 445 (S.D.N.Y. 2011). Appeals have been filed in this matter, and there has been much discussion as to whether Louboutin’s trademark red sole is really a trademark at all. Whether or not Louboutin is ultimately successful in arguing in favor of his red sole mark, brand owners are well advised to consider what non-traditional trademarks they use and take action to protect those marks. How? In the same way as with an inherently distinctive logo—--through consistent and continuous use. The mark, whether it is a color, shape, sound or smell, should serve the purpose of identifying the source of the goods or services. Once a non-traditional trademark is identified as a key mark, the company should consider taking the steps to register it with the United States Patent and Trademark Office. Dyan M. House is a partner at Carter Stafford Arnett Hamada & Mockler, PLLC. She can be reached at dhouse@carterstafford.com.
Inside 5 Confronting a Trademark Bully on a Digital Playground 9 Cellular Tethering Data Fees: Are They Legal? 11 Privacy and Legal Issues in Global Shareware Tools
Bar None presents
“The Girl With the File-Stamp Tattoo” June 6-9 at the Greer Garson Theatre on the SMU Campus All proceeds benefit the Sarah T. Hughes Diversity Scholarships. To buy tickets, visit www.barnoneshow.com or contact Elizabeth Philipp at (214) 220-7487 or ephilipp@dallasbar.org.
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Calendar
June Events
JUNE 1-BELO Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS
“Speaking for the Company: How Best to Prepare a Human Being to Testify on Behalf of an Organization,” Angela Zambrano. (MCLE 1.00)*
Pro Bono Summer Clerks Luncheon (MCLE 1.00)* To register, contact Alicia Perkins at perkinsa@lanwt.org.
Tax Law Section “Annual Tax Law Update”, Professor Ira B. Shepard. (MCLE 1.00)* Peer Assistance Committee
Corporate Counsel Section “Cloud Computing: Lessons from the Trenches,” Todd Fisher. (MCLE 1.00)* Government Law Section “Fair Housing Claims Against Local Governments and How to Defend Them,” Edwin P. Voss, Jr. (MCLE 1.00)*
Tort & Insurance Practice Section “Hot Insurance Topics,” Jes Alexander. (MCLE 1.00)*
DAYL Board of Directors Meeting
WEDNESDAY, JUNE 6 Noon
Employee Benefits & Executive Compensation Section “Qualified Plan and Deferred Compensation Issues for Government and Non-Profit Employers,” Stefan P. Smith. (MCLE 1.00)*
Juvenile Justice Committee
Public Forum Committee
DAYL Judiciary Committee
THURSDAY, JUNE 7 Noon
Construction Law Section
WEDNESDAY, JUNE 20
Health Law Section “Donation After Cardiac Death,” Thomas Wm. Mayo. (MCLE 1.00)*
Library Committee
Pro Bono Activities Committee
DAYL Solo & Small Firm Committee CLE. For more information contact cherieh@dayl.com.
6:30 p.m. An Evening With Doug Brinkley Mr. Brinkley will speak on his new book Cronkite. Sponsored by the DBA and World Affairs Council of DFW. DBA Members: $20; $25 after June 8. To purchase, log on to www.dfwworld.org.
Non-Profit Law Study Group
THURSDAY, JUNE 14
Noon
Appellate Law Section “E-Briefs and E-Records in Appellate Courts,” Leane Medford. (MCLE 1.00)*
Publications Committee
Noon
Christian Lawyers Fellowship
DAYL Freedom Run Committee
CLE Committee
Collaborative Law Section Topic Not Yet Available
St. Thomas More Society
DAYL Foundation Board Meeting
Dallas Gay & Lesbian Bar Association
DAYL Lunch & Learn. For more information contact cherieh@dayl.com.
“Drafting, Enforcing, And Challenging NonCompete Agreements In Light of Light’s Demise The New Face of Post-Employment NonCompetition Agreements in Texas,” Andrew M. Gould. (MCLE 1.00)* Judiciary Committee “A Panel Discussion Involving the Proposed Rules on Expedited Trial and Motions to Dismiss,” Quentin Brogdon, Hon. Carlos Cortez, Hon. Gena Slaughter, Hon. Ken Tapscott, Dan Worthington and Jerry Fazio, moderator. (MCLE 1.00 )* Family Law Section Board Meeting
FRIDAY, JUNE 8 Noon
Friday Clinic-North Dallas** “The I-9 Form: Walking the Employment Eligibility Verification Tightrope,” Florentino A. Ramirez. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., 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 Griffith Nixon Davison P.C. RSVP to kzack@dallasbar.org.
Trial Skills Section “New Strategies Using Depositions to Win at Trial,” Shane Read. (MCLE 1.00)*
Minority Clerkship Luncheon. Panelists include Yolanda Garcia, Partner, Weil, Gotshal & Manges LLP; Marisia Parra-Gaona, AT&T Services, Inc. and Tom Perkins, Dallas City Attorney. Learn about the broad range of opportunities in Dallas. RSVP to bavina@dallasbar.org.
Solo & Small Firm Section “A Lawyer’s Journey Using Social Media,” Mark McPherson. (MCLE 1.00)*
DAYL Elder Law Committee
Energy Law Section Topic Not Yet Available
Friday Clinic-Belo “Speaking for the Company: How Best to Prepare a Human Being to Testify on Behalf of an Organization,” Angela Zambrano. (MCLE 1.00)*
TUESDAY, JUNE 5 Noon
Dallas Women Lawyers Association
WEDNESDAY, JUNE 13
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group 11:30 a.m. House Committee Walk Through Noon
“Be Careful What You Tweet: The Ethical Use of Social Media in Law Practice,” Coyt Johnston. (Ethics 1.00)
MONDAY, JUNE 4 Noon
“The I-9 Form: Walking the Employment Eligibility Verification Tightrope,” Florentino A. Ramirez. (MCLE 1.00)* Sponsored by the CLE and Peer Assistance Committees. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., 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 Griffith Nixon Davison P.C. RSVP to kzack@dallasbar.org.
FRIDAY, JUNE 1 Noon
Business Litigation Section “Employment Law Update,” Mike Maslanka, Esq. (MCLE 1.00)*
Alternative Dispute Resolution Section “The Dispute Resolution Spectrum,” Olivier Andre, Esq. and Melinda Jayson, Esq. (MCLE 1.00)*
JUNE 15-BELO Noon
Noon
Noon
JUNE 8-NORTH DALLAS** Noon
June 2012
MONDAY, JUNE 11 Noon
Real Property Law Section “Current Issues in Foreclosure Law,” Mike Baggett. (MCLE 1.00)* DAYL Lawyers Against Domestic Violence
TUESDAY, JUNE 12
Family Law Section “Family Violence in Family Law: A Discussion of the Current Status and Future Trends of Family Violence and What Family Law Attorneys Need to Know,” Jan Langbein. (MCLE 1.00)* DAYL Ask-A-Lawyer Committee
5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.
11:30 a.m. DAYL Lawyers Serving Children
5:00 p.m. DAYL Dinner & Dialogue. For more information contact cherieh@dayl.com. 6:00 p.m. J.L. Turner Legal Association
FRIDAY, JUNE 15 Noon
Friday Clinic-Belo “Be Careful What You Tweet: The Ethical Use of Social Media in Law Practice,” Coyt Johnston. (Ethics 1.00)*
Bench Bar Conference Committee
Federal Bar Association
MONDAY, JUNE 18 Noon
Labor & Employment Law Section “The Constitution at Work,” Michael P. Maslanka. (MCLE 1.00)*
DAYL Criminal Bar Involvement Committee
TUESDAY, JUNE 19 Noon
Franchise & Distribution Law Section “Implications of the Foreign Corrupt Practices Act for International Franchising,” Jessica ParkerBattle and Victor Vital. (MCLE 1.00)*
International Law Section Topic Not Yet Available
DAYL Animal Welfare Committee
5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.
THURSDAY, JUNE 21
Christian Legal Society
3:30 p.m. DBA Board of Directors Meeting
FRIDAY, JUNE 22
Intellectual Property Law Section “Who Owns Your Twitter Account? #Maynotbeyou – Legal Issues Surrounding Ownership of Social Media Content,” John G. Browning. (MCLE 1.00)*
MONDAY, JUNE 25 Noon
Securities Section “Public and Private Offerings Under the JOBS Act,” George Lee. (MCLE 1.00)*
DAYL Solo & Small Firm Committee
TUESDAY, JUNE 26 Noon
American Immigration Lawyers Association DAYL Aid to the Homeless Committee
4:00 p.m. Senior Lawyers Committee 6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, JUNE 27
11:30 a.m. SOLD OUT! Inspiring Women: Humor & War Stories to Reach the Top of Your Game. Panelists: Nina Cortell, Dawn Estes, Hilda Galvan, Tonya Johannsen, Hon. Catharina Haynes and Debra Hunter Johnson. (Ethics 1.00)* Noon
Sports & Entertainment Law Section “Want to Write a Blockbuster Novel? Start With a Blockbuster Legal Brief,” Robert Dugoni. (MCLE 1.00)*
DAYL Equal Access to Justice Committee
DVAP New Lawyer Luncheon. For more information, contact reedbrownc@lanwt.org.
Municipal Justice Bar Association
THURSDAY, JUNE 28 Noon
Criminal Law Section “Current Affairs,” Dallas Police Chief Brown. (MCLE 1.00)*
Environmental Law Section “Hollywood v. Reality: What an Environmental Criminal Investigator Really Does and What Legal Tools Lawyers Can Use to Protect the Client,” Fred Burnside, Walt James and Ivan Vikin. (MCLE 1.00)*.
Peer Assistance Committee “Behind the Façade – How the Practice of Law Impacts the way Attorneys Handle Depression and Grief,” Dr. Benjamin Albritton, Dr. Adele Hurst, Terry Hill and Brett Stalcup. (Ethics 1.50.)
FRIDAY, JUNE 29 Noon
Juvenile Justice Advanced Topics Seminar For more information, contact ahernandez@ dallasbar.org.
Transition to Law Practice Committee
DAYL CLE Committee
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher 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 Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
June 2 0 1 2 â€
D al l as Bar A ssoci ati on l Headnotes 3
Figure It Out
Fight It Out
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4 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2012
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
The Quiet Bargain… By Paul K. Stafford
On June 19, 1865, Union soldiers, commanded by Major General Gordon Granger, landed on Galveston Island and read General Order No. 3, which informed the people of the Emancipation Proclamation. Unbeknownst to the Texas slaves, the Proclamation had been signed by President Abraham Lincoln and became effective 2 1/2 years earlier. With Granger’s recitation, slaves in Texas now knew of their emancipation and their right to chart their individual and collective course with their new-found freedom. The news of freedom had been delayed, but ultimately not denied. Dreams of a better future were now possibilities. For many, the hope of attaining an education was central to these dreams. With emancipation, slaves were bestowed with the freedoms and the responsibilities shared by all Americans—the same freedoms and responsibilities sought by millions of immigrants through the years. The Quiet Bargain is the supported freedom to aspire, to develop and to utilize resources to effectuate those aspirations. Guaranteed with the collateral of character, reinforced with the responsibility of maintaining the republic while becoming a productive and engaged member of society. Coupled with the responsibility to vote, to see that justice is done, and to be mindful of (and compassionate towards) the wellbeing of others. In the past, certain democratic tools were withheld, access to certain resources was denied, and legal impediments were erected to the exercise of freedom’s rights and responsibilities. Freedom’s bargain was compromised and lawyers played a key role in erecting and enforcing these impediments. Approximately one-hundred years after emancipation, lawyers played an integral role in dismantling the vestiges of this and other discrimination to ensure that a renewed freedom endures for all. One of the freedoms that endures is the freedom to earn an education and improve one’s self. With freedom comes the responsibility to be educated in order to maintain and improve our society. There are millions of students nationwide who have accepted this responsibility and committed themselves to educational attainment and success. This time of year, thousands of students are graduating from high schools, colleges, law schools, or elsewhere...all with the hopes of a successful future. Each will be making decisions about what they want to be, whether they want to continue their education or start their career, and where they want to settle. As a soci-
DOUGLAS BRINKLEY TO SPEAK ON NEW BOOK, CRONKITE Wednesday: June 13, 2012 6:30 p.m. • The Belo Mansion Cost: $20 for DBA members; $25 after June 8 www.dfwworld.org Douglas Brinkley, professor of history at Rice University and Contributing Editor of Vanity Fair presents the definitive, revealing biography of an American legend: renowned news anchor Walter Cronkite. An acclaimed author and historian, Brinkley has drawn upon recently disclosed letters, diaries, and other artifacts at the recently opened Cronkite Archive to bring detail and depth to this deeply personal portrait. Sponsored by DBA and the World Affairs Council of DFW
ety, we should encourage and applaud each of these students as they navigate these decisions. Another enduring freedom is the freedom to contract or enter into a bargain demonstrated through word or deed. With freedom comes the responsibility to ensure the continued vitality of our profession for present and future generations, knowing that as a profession and as a society we are only as strong as our future generations. As such, let’s make a quiet bargain with those entering or aspiring to enter our profession. The bargain is not specific to any race or gender, and need not be filled with pomp & circumstance, but instead should be subtle and sincere. A “quiet bargain,” like the bargains that I and others have made with countless individuals through the years as they have embarked on their respective educational journeys and careers, and that some individuals have made with me. It begins with an affirmation like “I believe in you,” and should be followed closely with the statement “I believe that you have the capacity to do great things.” The power of a profession to state in a shared voice that “If you commit yourself to maximizing your potential, in all that you undertake, I will commit myself to assisting you in any way that I can.” This summer, as in summers past, Dallas will be filled with a fresh influx of highly motivated law students from various law schools. Many of these law students will be legal clerks, summer associates, and judicial interns. Some in search of summer employment opportunities, all striving towards their eventual goal of graduation and entry into the profession. They believe, as I do, that the bargain exists. As members of the legal profession, of the Dallas Bar Association, of the fourth-largest metro area in the United States and the second-fastest growing city in the U.S. (according to Forbes, April 2012) I hope that we will show them it does. The Dallas Bar Association invites you to attend some of its events geared towards its future lawyers. Among them are the Law Student Professionalism Program Wednesday, May 31, at 2:00 p.m.; the Pro Bono Clerk’s Luncheon Friday, June 1, at noon; and the Minority Clerkship Luncheons on Friday, June 8, and Friday, July 13, at noon. All of these programs will be held at the Belo Mansion and are intended to further introduce these students to our profession and our bar associations. They are also intended to encourage these best and brightest to call Dallas their professional home. I encourage you to make the bargain, support these future HN lawyers, and support these events.
Minority Clerkship Luncheons Friday, June 8, Noon
Panelists: Yolanda Garcia, Partner, Weil, Gotshal & Manges LLP Marisia Parra-Gaona, AT&T Services, Inc. Tom Perkins, Dallas City Attorney
Friday, July 13, Noon Panelists: TBD At the Belo Mansion
For more information or to RSVP, e-mail BAvina@dallasbar.org.
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: Paul K. Stafford President-Elect: Sally Crawford First Vice President: Scott McElhaney Second Vice President: Brad C. Weber Secretary-Treasurer: Shonn Brown Immediate Past President: Barry Sorrels Directors: Jerry Alexander (Chair), Kim Askew (At-Large), Chip Brooker (President, Dallas Association of Young Lawyers), Wm. Frank Carroll, Victor Corpuz (President, Dallas Asian American Bar Association), Rob Crain, Laura Benitez Geisler, Lori Hayward (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Michael K. Hurst, Michele Wong Krause, Karen McCloud, Christina McCracken (At-Large), Hon. Kenneth Molberg ( Judicial At-Large), Carlos Morales (President, Dallas His-panic Bar Association), Mary L. Scott, Diane M. Sumoski, Robert L. Tobey and Aaron Tobin (At-Large). Advisory Directors: Angelina LaPenotiere (PresidentElect, Dallas Hispanic Bar Association), Mandy Price (President-Elect, J.L. Turner Legal Association), Sarah Rogers (President-Elect, Dallas Association of Young Lawyers) and Jennifer Wang (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Andy Payne, Christina Melton Crain, Beverly Bell Godbey, Ike Vanden Eykel, Frank E. Stevenson, II HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen and Lea Dearing Vice-Chairs: Natalie L. Arbaugh and Dawn Fowler Members: Timothy G. Ackermann, Kevin Afghani, Favad Bajaria, Matthew Baker, Jody Bishop, Lisa Blackburn, Jason Bloom, Kandice Bridges, William Brown, Lance Caughfield, Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, David Dodds, Adam Dougherty, Sabeen Faheem, Enrique Flores, Megan George, Susan Halpern, Zachary Hoard, James Holbrook, Ezra Hood, Mary Louise Hopson, Dyan House, Michael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, Soji John, Douglas Johnson, Adam Kielich, Michelle Koledi, Susan Kravik, Scott McElhaney, Nick Nelson, Jenna Page, Kirk Pittard, Laura Anne Pohli, Robert Ramage, Jared Slade, Thad Spalding, Paul K. Stafford, Jeanette Stecker, John C. Stevenson, Scott Stolley, Michael Sukenik, Robert Tobey, Peter S. Vogel, Suzanne R. Westerheim and B. Joyce Yeager DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Lakeshia McMillan, Andrew Musquiz, Tina Douglas Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2012. 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 Execu-tive 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. Fea-ture articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informa-tional 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.
June 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Computer/Intellectual Property Law
Confronting a Trademark Bully on a Digital Playground by Tom Kulik
The explosion in online social networking has changed the landscape of trademark policing online. Certain trademark owners appear inclined to stretch the boundaries of their “playground” under U.S. trademark law as trademark use online has skyrocketed beyond mere use in domain names and email addresses to include social media site “handles” and other online aliases. Examples range from social media gaming company Zynga (creators of the popular “Farmville” game) to Facebook’s well-publicized bouts with Teachbook and Lamebook. Both of these companies claim that the underlying “roots” of their trademarks (i.e. “-ville” and “-book”) have become highly distinct in the their digital “space,” and they are not afraid to aggressively defend and protect them— leading some to refer to their tactics as “trademark bullying.” For the uninitiated, these developments have created an interesting game of dodge ball that must be played with caution. Although trademark owners have a duty to police their trademarks, trademark law relies upon a “likelihood of confusion” as the litmus test for infringe-
ment. What Zynga and Facebook have in common is their strong belief in their trademarks’ distinctiveness from the proliferation of their products and/or services. These companies, however, need to be very methodical in their arguments and strategic in their evidence to avoid having “spirited” policing seem like bullying to the consuming public. Sharing a “root” alone, without more, is not enough. So how can a company avoid being picked on by a trademark bully? Here are a few helpful (but by no means exhaustive) tips to handle them on the digital playground: 1. KNOW your playing field. Generally, using confusingly similar trademarks in a social media handle or online alias may not only be infringing, but such infringement may violate the service’s terms and conditions and result in suspension. If your client entertains the use of a descriptor or logo that uses such “roots” of a recognized brand (especially any of the ones mentioned above), investigate potential uses of the mark online. When investing heavily in the anticipated brand, perform a full search through qualified trademark counsel to uncover other uses in your client’s field. Make no mistake—your client will likely
DBA Dedicates Habitat House
On May 5, DBA dedicated its 21st Habitat for Humanity home. DBA president Paul K. Stafford turned the keys over to the Green family, as volunteers celebrated the completion and dedication of the home. The DBA is the longest-running whole-house sponsor for the Dallas Area Habitat for Humanity. This year’s build was coordinated by DBA Home Project Co-Chairs Brad Johnson and KC Ashmore. To participate in the project for next year, contact KC at kashmore@chambleeryan.com.
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get the trademark registrant’s attention upon using the intended mark online or otherwise filing a trademark application for federal registration in the USPTO. So this homework is mandatory. 2. UNDERSTAND the rules. Similar to the foregoing, trademark rights depend upon a number of factors, and a basic understanding of what constitutes a trademark and how such rights accrue under the law is essential to understanding what rights your client may (or may not) have in the anticipated mark. Where a brand presence is sought on a social media site, such service’s terms of use and policies will also come into play and must be reviewed. 3. HOLD your ground. Just like confrontation on the playground, don’t reflexively back down from a company demanding immediate compliance with a cease and desist demand—especially if you did your homework before beginning your use of the mark in your business. Although they may forcefully assert certain facts in their demand they deem dispositive, the reality is that they may not have done their homework under the law. Sometimes such demands have not been properly investigated, or may be in error. Investigate as thoroughly as pos-
sible before responding. 4. RALLY your “teammates.” If the trademark has been used in commerce for some time, you may be able to use publicity concerning the dispute to your advantage. Part of the reason Lamebook was able to induce a settlement from Facebook was not only its legal position (as most people understood the purpose of Lamebook and were not at all confused by the lighthearted fun and arguable satire/parody), but the negative publicity generated against Facebook. Rather than take additional hits to the brand, the complaining company may be willing to deal (and in some cases, consent to your client’s continued use). 5. STRIKE BACK where necessary. Similar to playground shenanigans, don’t be afraid to take the offensive when the facts require it—this is where qualified trademark counsel is invaluable. There’s nothing like punching a bully in the nose when they deserve it. In doing so, however, make sure you are prepared for a potential fight. Your client’s brand may be counting on it. Tom Kulik is a partner at Scheef & Stone, L.L.P. and current ViceChair of the DBA Computer Law Section. He can be reached at tom.kulik@solidcounsel.com.
6 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
Pro Bono Golf Tournament On May 3, more than 100 golfers participated in the 21st Annual Pro Bono Golf Classic at Brookhaven Country Club to benefit the Dallas Volunteer Attorney Program. All proceeds will be used to help provide pro bono legal services to low-income residents of Dallas. Thank you to all of our sponsors! We appreciate you!
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D al l as Bar A ssoci ati on l Headnotes 7
8 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2012
Columnn State Bar President’s Update
DBA State Bar President’s Update The State Bar offers members free online legal research through Casemaker. This service includes material from all 50 states and a federal library. You can access Casemaker on the State Bar website (www.texasbar.com). The State Bar also offers the opportunity to get free CLE from time to time at www. texasbarcle.com, and the Law Practice Management Program has plenty of tools and resources to help you in your practice. The Texas Young Lawyers Association’s “Office in a Flash,” available online at www.tyla.org or on a flash drive, can assist young lawyers— or any lawyer—in opening a practice. The State Bar also has a revamped online Career Center, where job seekers can post resumes for free (available at www.texasbar.com), as well as a member discounts program (www.texasbar. com/discounts) that features dozens of discount service providers. You can learn about these programs and more at www.texasbar.com/toughtimes.
By Bob Black
It has been a great privilege to serve you this year as president of the State Bar of Texas. It has been an incredible journey, one I will be long in remembering. I come away from this year proud of our profession and the work we are doing. The Dallas legal community is an especially engaged group, and I have been continually impressed at the many outstanding ways you serve your fellow lawyers and the community.
Educating the Public
One of my main efforts as president has centered on education, both to the profession and to the public. Educating the public about the role of the judiciary and how we as lawyers serve the judicial branch is crucial to not only helping citizens become more aware of and involved in our democratic system but also helping to improve the reputation of our profession over time. I realized early on that we needed to focus on our schools. Civics education is critical to fostering engaged citizens who understand our democracy and the liberties it protects. To engage students, we must find ways to teach civics in an entertaining and thought-provoking manner. We developed Oyez, Oyez, Oh Yay! Civics Resources for Texas Students and Teachers to provide teachers across the state with a website (www.texasbar. com/civics) full of helpful resources, lesson plans, and even games. A key component of the website are videos geared to middle school students about seminal U.S. Supreme Court cases that illustrate the independence
Bob Black
and equality of the judicial branch. In the coming bar year, several new videos designed for high school students will be added. Teacher response to the website and videos has been incredibly enthusiastic.
Serving Our Members
This year, it has been especially important to me to make sure you are aware that the State Bar of Texas is focused on serving you, our members. During my 32 years as a lawyer, I have never witnessed tougher times for our profession. Thus, I want to point out some resources that can help you in your day-to-day practice, help you build your practice, or help you find a job.
Annual Meeting
I encourage you to make plans to attend this year’s State Bar Annual Meeting in Houston at the George R. Brown Convention Center on June 14-15. Where else will you have the opportunity to get a year’s worth of CLE all in one spot? We have an outstanding slate of CLE programming planned
with more than 35 participating State Bar Sections, as well as special tracks for ethics, law practice management and legal innovations and technology. Our featured speakers include former U.S. Secretary of State James A. Baker III, who will provide his perspective on America’s position in the world; bestselling author and lawyer Richard North Patterson; and entertainment lawyer Marshawn Evans, an expert on branding, relationship building, and business strategy. In a special exhibit at the Annual Meeting, we will showcase 21 Texas court records that have been preserved through the efforts of the State Bar and the Texas Supreme Court-appointed Texas Court Records Preservation Task Force. These records, which were featured in the March Texas Bar Journal, provide an intriguing glimpse into our rich legal heritage and illustrate how much we have in common with past generations. (If you would like to be a part of preserving our state’s historical legal documents, you can make a contribution to the Texas Bar Historical Foundation at P.O. Box 12487, Austin, TX 78711-2487.) I encourage you to check out everything the State Bar Annual Meeting has to offer. To register online or for more information, visit www.texasbar. com/annualmeeting.
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Computer/Intellectual Property
Cellular Tethering Data Fees: Are They Legal? by Christopher K. Provost
Smartphones have become a way of life, and users often dread the day they leave home without them. Smartphones provide instantaneous access to correcting fallacies, up-to-date sports scores, work emails and all other quick Internet browsing needs. Tethering is a mobile feature which allows sharing Internet connections from Internet-capable mobile phones with other devices. This feature, often dubbed a “mobile hotspot” by mobile phone carriers, allows the Internet-connected mobile phone to act as a portable router when providing tethering services to others. A cellular data contract with a mobile provider allows the user access to the company’s data network as a service for a monthly fee. Three of the four major mobile providers, AT&T, T-Mobile and Verizon Wireless, currently charge a separate service fee to allow tethering of cellular data on a mobile phone. Sprint has completely blocked this feature to date and only offers discrete data plans for each device. AT&T, T-Mobile and Verizon Wireless all have drastically changed their data contracts from unlimited to limited tiers (similar to those of cable and satellite companies). The purposes behind tethering fees are to prevent an increased strain on the mobile phone carriers’ data infrastructure, monetize a service already paid for and prevent third parties from entering into competition. The home telephone and cable broadcasting industry have a longer history of regulation of service fees than the wireless industry and may provide strong precedent for challenging the legality of teth-
YOU CAN’T HACK IT!
ering data fees. In 1982, courts responded to AT&T’s monopoly over the telephone industry, instituted deregulation and divestiture, and a decade later Congress passed the Telecommunications Act of 1996, all in an attempt to open the market nationally and allow fair competition. The courts found that AT&T was essentially generating excess profits on equipment sales from its vertically integrated subsidiary, Western Electric. The Cable Television Consumer Protection and Competition Act of 1992 provided the FCC with exclusive jurisdiction to regulate cable service rates. Following the passage of this act, Adelphia Communications Corporation was sued over a “per outlet fee.” Adelphia was overcharging its subscribers for additional cable outlets within the same location, i.e. homes or businesses subscribing for service on more than one television. Both of these cable and phone service excess charges were found to be frivolous as they were charges for a service or equipment already being paid for by the
end user. As amended, the Digital Millennium Copyright Act (DMCA) anti-circumvention provision allows computer programs that enable cellphones to execute various software applications to fall under the list of exemptions to the DMCA. 17 U.S.C. § 1201(a)(1). In short, this provision allows “rooting or jailbreaking” of cellphones to gain access to software features not authorized by the mobile phone provider. For iPhone users, some features available to a “jailbroken” iPhone not available to stock iPhone users include: Facetime chatting over 3G; tweaking your personal assistant, Siri; and tethering data with your Wi-Fi only iPad, all for free. Though “jailbreaking” and “rooting” of mobile devices is legal, this device liberation leaves users in violation of the end-user license agreement for the device and in violation of the terms and conditions of data usage contracts/Terms of Service (TOS). Punishment for violators varies and can result in being auto-
matically charged for a tethering plan or getting dropped from the mobile phone providers’ service. Verizon is currently being sued by Free Press for requesting Google to restrict Verizon customers’ access to third party tethering applications. According to the complaint, this restriction violates the FCC’s license to Verizon of the C Block of the Upper 700 MHz spectrum in that the licensee “shall not deny, limit, or restrict the ability of their customers to use the devices and applications of their choice.” This conflict between allowing access to unauthorized, but legally obtained, software under the DMCA, restrictions of mobile phone providers TOS clauses, and the FCC’s past restrictions against frivolous charges to cable and home phone services already being paid for raises the question: “Are cellular tether HN ing data fees legal?” Christopher Provost is an associate attorney at Modjarrad and Abusaad Law firm. He can be reached at CProvost@modjarrad.com.
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10 H e a d n o t e s l D a l l a s B a r A s s o ciation
June 2012
2012 DBA 100 CLUB - Get on the LIST! The Dallas Bar Association would like to recognize the following Firms, Government agencies, and corporate legal departments for their support of the DBA along with their commitment to the advancement of the legal profession and the betterment of the community. The DBA 100 Club is a distinguished membership recognition category that consists of Firms and Government agencies with two or more attorneys as well as corporate legal departments that have 100% membership in the DBA. Recognition is given to the 2012 DBA 100 Club members in our June, July and August Headnotes and at our Annual meeting in November. Not a DBA 100 Club member yet? This is the perfect time to encourage your newly hired attorneys to join the DBA and take advantage of our many member benefits—such as 400 FREE CLE programs each year, networking opportunities, community projects and many other member benefits as well as the opportunity to qualify for the DBA 100 Club. Please note that the DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. How do you get on the list? To become a 2012 DBA 100 Club member, please submit your request via email and include a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and if you qualify, your firm will be added to the 2012 DBA 100 Club! If we receive your list by June 8th, your firm will be included on the July and August DBA 100 Club recognition list in Headnotes. Send in your list TODAY! DBA 100 Club Members As of May 14, 2012 Law Firms with 2 to 5 Attorneys 123 Divorce Company A. William Arnold III & Associates, P.C. Abigail & Berthoff Fernandes PLLC Ackerman & Savage, L.L.P. Adair, Morris & Osborn, P.C. Aldous Law Firm Alexander Dubose & Townsend LLP Anderson & Brocious P.C. Ashcraft Law Firm Ashley & Laird Atkins, O’Toole & Briner, L.L.C. Barnett • McNair • Hall, L.L.P. Blankenship, Wiland & O’Connor, P.C. Broden & Mickelsen Brown Fox Kizzia & Johnson PLLC Bruegger & McCullough, P.C. Brusniak Blackwell, P.C. Buchanan & Bellan, L.L.P. Carlock-Gormley-Hight Clark Law Firm Coffin & Driver, PLLC Crain Lewis, L.L.P. Curtis | Castillo PC Daniel Sheehan & Associates, LLP Diamond | Apgar, LLP Edwards & de la Cerda, L.L.C. Fair & Watts, P.C. Grogan & Brawner P.C. Hamilton & Squibb, LLP Hance & Wickham, P.C. Hankinson LLP
Helms, Roberts & Diaz LLP Horton & Archibald, P.C. Johnston u Tobey, P.C. Kabani & Kabani, PLLC Kapioltas & Forni, PLLC Karel & Hicks, P.C. Keane, Fowler & Donohue Kelly, Durham & Pittard, LLP Kleiman, Lawrence, Baskind & Fitzgerald, L.L.P. Law Office of Emily Horton PLLC Lidji Dorey & Hooper Little Pedersen Fankhauser LLP Marshall & Kellow, LLP Milby, PLLC Miller and Bennett, Attorneys and Counselors Mincey-Carter, PC Mitchell, Goff & Mitchell, LLP Prager & Miller, P.C. Quaid & Quaid, L.L.C. Ramirez & Associates, P.C. Ray & Thatcher, Attorneys at Law PC Schuerenberg & Grimes, P.C. Smith, Stern, Friedman & Nelms, P.C. The DeLoney Law Group, PLLC The Foret Law Firm The Law Offices of Shanna Nugent, P.C. Thomas, Cinclair & Beuttenmuller, PC Tillman Betanzos LLP Winn, Beaudry & Winn, L.L.P. Woodward & Shaw Yarbrough & Elliott, P.C. Law Firms with 6 or More Attorneys Ackels & Ackels, L.L.P. Addison Law Firm P.C.
Allmand Law Firm PLLC Anderson Tobin, PLLC Baker & McKenzie LLP Baker Botts L.L.P. Bell Nunnally & Martin LLP Brousseau Graham & Massingill Brown & Hofmeister, L.L.P. Brown McCarroll, L.L.P. Burford & Ryburn, L.L.P. Campbell & Chadwick, P.C. Canterbury, Elder, Gooch, Surratt, Shapiro & Stein, P.C. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP David, Goodman & Madole, P.C. DeHay & Elliston, L.L.P. Fletcher, Farley, Shipman & Salinas, LLP Ford, Nassen & Baldwin, P.C. Fulbright & Jaworski L.L.P. Godwin Ronquillo PC Goldfarb LLP Grau Koen, P.C. Gruber Hurst Johansen Hail Shank LLP Guida, Slavich & Flores, P.C. Hermes Sargent Bates, LLP Johnson Jordan Cresswell Monk, PC KoonsFuller Kroney Morse Lan, PC Langley Weinstein LLP Littler Mendelson, P.C. Locke Lord LLP McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P. McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins,
Crouch & Ungerman, L.L.P. Munsch Hardt Kopf & Harr, P.C. Passman & Jones, P.C. Sayles Werbner, P.C. Shackelford, Melton & McKinley, LLP Shannon, Gracey, Ratliff & Miller, L.L.P. Sorrels, Udashen & Anton Staubus & Randall, L.L.P. Steed Flagg Lamberth LLP Stinnett Thiebaud & Remington L.L.P. Susman Godfrey L.L.P. The Bassett Firm, P.C. The Hartnett Law Firm The Law Offices of Frank L. Branson, P.C. Thompson & Knight LLP White & Wiggins L.L.P. Winstead PC Corporate Legal Departments Alon USA Energy Inc. Austin Industries, Inc. Baptist Foundation of Texas Belo Corp. Contran Corporation Front Burner Restaurants, LP Genesco Sports Enterprises Hexter-Fair Title Company MetroPCS Communications, Inc. Morgan Management Corporation Neuberger Berman ORIX USA Corporation Tenaska Power Services Co. Government Agencies City of Irving
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Dal l as Bar A ssoci ati on l Headnotes 11
Computer/Intellectual Property Law
Privacy and Legal Issues in Global Shareware Tools by Murali Pasupulati
In a nod to an increasingly social media savvy workforce, businesses are aggressively leveraging social media style tools to promote collaboration, communication and connectivity amongst their employees. This is especially critical for global organizations that must harness the collective intelligence and cooperation of employee clusters scattered across countries and time zones. Such technologies enable simultaneous and instantaneous communication. Interestingly, these productivity tools are equally relevant to both for-profit businesses and non-profit organizations. A recent joint study by Unisys and IDC predicts that, in corporations with more than 500 employees, the number of information workers using social networking platforms will almost double between 2009 and 2014. While collaborative technologies are generally attributed to the advent of the Web 2.0 revolution, such technologies have been around for a while. Think of WebEx, Google Docs, Share Point and other automated collaborative workflow solutions that have already established a strong presence. The next generation of collaborative software, however, aims for more than seamless interconnectivity—it promises to merge business intelligence software with social networking and Web 2.0 technologies. Such collaborative decision making (CDM) modules are bound to increase in importance as business interactions are pre-
dicted to grow four fold, from 3.5 trillion in 2010, to 12.7 trillion by 2013. These tools would enable businesses to perform truly effective analytics on the so called “Big Data” and help make sense of it all. After all, as the leading management guru, Peter Drucker, once remarked: “You can’t manage what you don’t measure.” However, before adopting such collaboration tools, it is prudent for organizations to review the architecture of these systems for inherent legal risk exposure. While the following discussion is by no means comprehensive, this may be a good starting point of inquiry. The most obvious and notorious of these risks are those associated with data transfers across countries and the privacy issues implicated in such transfers. For instance, an organization must first identify how data flows within the enterprise and whether adequate compliance is or will be in place before the tool is “turned on.” To simplify the discussion, consider an organization that is based in the United States with employees and substantial business operations in Europe. To leverage the collective cerebral output and collaborative potential of its US and European workforce, any CDM it deploys will involve data transfers between these two groups. However, it is important to first assess the health of the privacy and data security compliance regime of the organization. Some of the pertinent questions would be whether any personal data from European Union residents would flow into the
United States. If so, the organization must ensure that it has a Safe Harbor certification already in place to accommodate such transfers. It is also important to review whether its data protection registrations (if it has any) already cover the types of data likely to flow through the sharewares and collaborative platforms. While employers may appear to have more leeway when dealing with privacy expectations of its US employees, the European model is more onerous on employers. This means that any monitoring of employee use of such tools is subject to more restrictions in Europe. Also, it is important to understand that consent for data transfers as applied to a US worker may not be adequate in the European context. Therefore, it is necessary to foster in the internal collaborative tools, a robust set of terms of use and privacy policies. These policies must afford clear notice to what information is collected and where it may be transferred and stored. Other significant issues include how an organization is poised to handle the content
generated within the CDM. It is important to understand the data retention laws of the various jurisdictions impacted by the user-generated content. Any content generated in the course of employment by its workers may constitute official records of the organization. Another factor to consider is how sensitive corporate information, trade secrets and other intellectual property assets created within the collaborative space are secured and owned by the organization. From a governance standpoint, it is important to have protocols for immediate takedown of any inappropriate content and an efficient escalation process. Collaboration technologies are poised for exponential growth and lawyers must provide practical and effective business-oriented legal solutions that help organizations to harness the full promise of this technol HN ogy. Murali Pasupulati, CIPP (US), CIPP (IT) is an attorney who focuses on privacy, data security and intellectual property. He can be reached at mpasupulati@yahoo.com.
Juvenile Delinquency Advanced Topics Friday, June 29, 2012 8:00 a.m. to 5:00 p.m. MCLE 7.75, Ethics 1.75 Register online at: www2.dallasbar.org/events/register/juvdel_signup.asp. Sponsored by the DBA Juvenile Justice Committee
DVAP’s Finest Jared Greathouse
Jared Greathouse is a solo attorney. Since graduating from the University of Miami School of Law, he has represented individuals in various civil litigation matters as well as out-of-state banks in foreclosure hearings in several counties. Jared came to DVAP through the University of Miami School of Law Legal Corps, a fellowship program that seeks to fill the gaps at understaffed public agencies by providing them with prepared, skilled and diverse attorneys. During his fellowship with DVAP, Jared attended local intake clinics, assisted clients with estate planning, various family law matters, foreclosure defense cases and helped a young man recover doubly-charged tuition fees. Thank you for all you do, Jared!
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12 H e a d n o t e s l D a l l a s B a r A s s o ciation
June 2012
Probating a Will: Tips for the Non-specialist by Judge Chris Wilmoth
No matter what your legal specialty, friends and family expect you to know how to probate a will. Based on the best practices of the probate lawyers appearing in my court, here are some tips for non-specialists. First of all, court staff is always happy to help non-specialists look good to their clients, so never hesitate to ask for help. Refer to the Decedent by name or by relationship to the witness. Eliminating legalese helps make your witness more comfortable testifying. In most cases, nine facts must be established to probate a will and obtain letters testamentary: 1. The person is dead; 2. The application was filed less than four years after death; 3. Jurisdiction and venue are proper; 4. Citation was served and returned in the manner and length of time required; 5. The will offered for probate was never revoked; 6. The will was executed with the formalities and solemnities and under the circumstances required to make it valid; 7. The testator was at least 18 years old (or an exception applies) and of sound mind;
8. The proposed executor is entitled to letters; and 9. The proposed executor is not disqualified. Prove the first two facts by asking if Decedent died on a particular date, leaving the judge to determine that four years have not passed. You can avoid sounding like a lawyer by not asking if four years have passed since last month. (If four years have passed, prepare the witness to explain why the applicant did not probate the will sooner.) Ask leading questions. No one will object and you can spare the witness the embarrassment of forgetting the exact date their loved one died. Dallas probate courts are statutory probate courts; so jurisdiction is understood. Venue is usually shown by asking whether Decedent “had a domicile or fixed place of residence” in Dallas County. Courts permit informal phrasings (e.g., “Decedent made his home in Dallas County?”) so long as required findings can be made. Most witnesses know nothing about citation, so ask the judge to take judicial notice. As a matter of practice, Dallas probate courts alert counsel if citation is bad and will not set the hearing before the return date, and so this is rarely a problem. Proof that the will was not revoked is
straightforward: you show the witness the will being offered for probate and ask, “This will was never revoked, right?” Don’t ask if the will is self-proved because most witnesses do not know. Again, ask the court to take judicial notice. If the will is not self-proved, testimony must show that Decedent was at least 18 years old (or an exception applies) and of sound mind and the will was made with the solemnities and formalities and under the circumstances to make it a valid will. This proof must be made, even if no subscribing witness can testify. (Sometimes attorneys ask if Decedent was over 18 and of sound mind, even when the will is self proved, because the witness expects to be asked these questions.) Someone is “entitled” to letters if the will names him or her as executor. If the person seeking letters is not the first-named executor, the witness must explain why. In rare instances, Decedent divorced the named executor after signing the will and it becomes necessary to ask about Decedent’s former marriage. If this is not an issue, do not ask a new widow or widower whether Decedent’s marriage was terminated before his or her death. Attorneys sometimes ask if the witness reviewed Section 78 of the Probate
Code and agrees that no disqualification applies. However, some judges prefer testimony on each disqualification listed in Section 78, particularly the requirements that the proposed executor not be an incapacitated person, a convicted felon or a nonresident without an agent for service of process. Many attorneys cover residency when introducing the witness and ask for judicial notice of any Designation of Resident Agent during the disqualification testimony. Not all allegations that belong in the application need to be covered at the hearing, e.g., whether children were born to or adopted by Decedent after the will was made and whether the will leaves anything to a charity, the State of Texas or a state agency. The will can be probated either way. Also, letters testamentary can issue without proof that administration is necessary. Finally, consider submitting your written proof, order and oath to the court for review the week before the hearing to make sure you include everything the judge HN wants to see. Judge Chris Wilmoth presides over Probate Court No. 2. He can be reached at chris.wilmoth@dallascounty.org.
The America Invents Act: Changes to U.S. Patent Laws continued from page 1
same accused product or process.” Other litigation-related changes include the immediate elimination of the “best mode” requirement as a defense (many countries do not require disclosure of the inventor’s best mode). In contrast, for patents issued on or after September 16, 2011, a defense that the defendant used the claimed invention at least a year before the effective filing date was expanded from business methods to any process or thing used in a commercial or manufacturing process. And, finally, not getting, or presenting evidence of, the advice of counsel cannot be used to prove an infringement was willful. The AIA has broadened a company’s options in seeking PTO review of issued patents, or in aiding PTO rejection of a published application. A nonpatent owner participating when the PTO “reexamines” the patent—giving it a chance to narrow the patent rights, or eliminate them entirely and possibly avoid litigation—is not new. But as of
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September 2012, that option (now “Inter Partes Review”) will include discovery. That procedure will no longer, however, apply to newly-issued patents (less than nine months), which will fall under a new procedure (“Post Grant Review”). The basis for attacking the patent claims as unpatentable in Post Grant Review will not be limited to patents or printed articles, but will also include prior sales or public use of the invention. Post Grant Review, however, will only apply to post-March 2013 applications. And, when submitting prior art relevant to a published patent application, one may now give a “concise description” of why that art is relevant. For the patent owner, September 2012 will bring a broad new procedure (“Supplemental Examination”) “to consider, reconsider, or correct information believed to be relevant to the patent.” The principal effect is to permit the patent owner to eliminate the risk of inequitable conduct (which renders the patent unenforceable) by permitting the PTO to review that information. But Supple-
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mental Examination is not limited to such consideration, or even the type of prior art to be considered. Finally, three points to recall. First, the PTO will be writing many sets of rules to implement the amended statutes. Second, while some amendments are immediately effective, many have effective dates in September 2012 or later. And third, some
Tim Ackermann practices patent, trademark and copyright law at The Ackermann Law Firm. He was Co-Chair of the Publications Committee of the Dallas Bar Association from 2009-2011. He can be contacted at tim@ackermannlaw.com.
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pre-amendment provisions will remain effective for some time—think 20 years— for patents filed before the 2012 or 2013 HN effective dates.
H H
4,000+ Cases Mediated 90%+ Settlement Rate Full-Time Mediator for 22 Years 35+ Years of Judicial Experience Justice Retired, 5th Court of Appeals of Texas Member - National Academy of Distinguished Neutrals Member - The Association of Attorney Mediators Distinguished Mediator - Texas Mediator Credentialing Association Panel - FINRA Dispute Resolution Panel - CPR: International Institute for Conflict Prevention & Resolution
Mediator H Arbitrator H Special Judge
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Dal l as Bar A ssoci ati on l Headnotes 13
Credit Card Security in your Law Firm by Amy Airhart
The term “PCI Compliance” generally elicits one of three responses—complete confusion, vague recognition, or mild panic. You are not alone. From the moment the Payment Card Industry Security Standards Council rolled out these credit card regulations, attorneys have been struggling with how to understand their meaning and adhere to them.
What is PCI Compliance?
In 2006, the major credit card brands (Visa, Mastercard, Discover, American Express and JCB) formed a security council. The goals of the Security Council were to ensure the safety of cardholder data at all times and reduce credit card fraud by developing standardized regulations (Payment Card Data Security Standards or PCI-DSS), the entire credit card processing industry must follow. It applies to any business that processes, transmits, or stores credit card data. (https://www.pcisecuritystandards.org/) The bottom line is if you accept credit card payments, you also accept the responsibility to protect sensitive card holder information.
How Does it Apply to My Law Firm?
Your day is already filled with mission critical tasks, so taking on compliance is not something you want to think about. It’s understandable. Perhaps your law firm only processes a few credit card transactions a month, you have a trusted staff, and you use a compliant gateway for your transactions. You’re credit card data is safe….right? PCI Compliance is actually comprised of several key pieces—how credit cards are processed, who you use as service providers and how you handle credit card information within the walls of your office. Think for a moment about how credit card data flows through your law firm. Do
your clients pay online? Do they fax credit card authorization forms to your office? Are there copies of credit card numbers in client files? Those are just a few practical security points addressed by the Security Standards. The good news is that implementing small changes can have a major impact on your security. There are guidelines in the PCI-DSS that address internet security and payment applications, and also ones that address how businesses handle credit card data on a physical level. Assessing your vulnerabilities is a great way to fix potential issues and educate your staff. According to the 2011 Data Breach Investigations Report by Verizon Business, 96 percent of breaches could have been prevented by fairly simple measures. Office security policies that define procedures for changing passwords, storing information, and disposing of credit card data can make the difference between compliance and non-compliance.
Why Now?
Until recently, most of the focus has been on major retailers that process in excess of 6 million Visa transactions per year. All merchants, regardless of credit card processing volume, must now comply with the regulations. Failure to meet requirements can result in security breaches, costly fines, and forensic audits. Accepting credit cards is a great way to offer a flexible payment option for your clients and improve your cash flow; consequently, this means handling sensitive information that is very desirable to criminals. By following the Payment Card Industry Data Security Standards (PCI-DSS) guidelines, you greatly reduce your vulnerability to a security breach. Most firms have found taking steps to become PCI Compliant is a productive, beneficial “house-keeping” exercise for their office. Becoming PCI Compliant sends a strong message to your clients that you are doing due diligence in protecting their sensitive
information. The PCI process can also create a greater level of awareness with your staff when they handle credit card information, limiting the potential for a security breach and ultimately reducing the overall liability to your law firm.
How Do I Become Compliant?
There are several steps every merchant must complete to validate PCI Compliance: • Identify Validation Type (this is based on how credit card transactions are processed) • Complete the SAQ (Self Assessment Questionnaire) • Provide evidence of a passing vulnerability scan, if necessary, from an approved vender on a quarterly basis. • Complete the Attestation of Compliance • Submit the SAQ/ Attestation of Compliance and evidence of a passing scan (if required) to acquirer. • Create comprehensive Security Policies and Procedures • https://www.pcisecuritystandards.org/ merchants/how_to_be_compliant.php
My Law Firm is Compliant. Now What?
One of the biggest challenges attorneys face is moving beyond a “check-box” mentality when it comes to compliance. (“I have a Security Policy, check! I shred documents, check!”) To be truly PCI Compliant, you need to not only be able to answer questions truthfully and accurately on your SAQ, but also be diligent in monitoring your procedures every day. If you have rock-solid policies and procedures in place, but only follow them four out of five days, it’s like having burglar bars on your windows and leaving the front door wide open. Regardless of how you choose to comply with PCI regulations, it is important to keep the ultimate goal in mind—protecting your clients and your law firm. By taking the time to evaluate the flow of cardholder data through your office and addressing security issues, you can achieve that goal. HN
Amy Airhart is the Director of PCI Compliance for LawPay (www. lawpay.com), a member benefit provided through the Dallas Bar Association. *Check with your merchant bank for additional deadlines
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Frank Stevenson Elected SBOT Chair of the Board Texas Board of Directors since 2010 and is a fellow of the American Bar FoundaDallas Bar Association Past President tion, a sustaining life fellow of the Texas Frank E. Stevenson II, a Partner at Locke Bar Foundation and the Dallas Bar FounLord LLP, has been elected Chair of the dation and a life fellow of the Dallas AssoBoard of the State Bar of Texas. Mr. Ste- ciation of Young Lawyers Foundation. He has also served on the Dalvenson will take office durlas Bar Foundation’s board ing the State Bar Annual since 2007. Meeting June 14-15. In addition to his serMr. Stevenson has been vice in the legal field, Mr. a member of the Dallas Bar Stevenson also sits on the for more than 25 years and board of various commuhas held numerous posinity service organizations, tions within the associaincluding North Dallas tion, including serving as Chamber of Commerce, President of the DBA in Sammons Center for the 2008. He was the first chair Arts and Children’s Choof the DBA’s Summer Law rus of Greater Dallas. And, Intern program, and he having achieved the rank chaired the Campaign for of Eagle Scout with the Equal Access to Justice and Boy Scouts of America, the New Member commit- Frank E. Stevenson II he continues to serve the tees. In 1995 he received the Jo Anna group as an assistant scoutmaster. Mr. Stevenson, a graduate of the UniMoreland Outstanding Committee Chairman Award. During his tenure as versity of Virginia School of Law, has President the DBA received the State Bar practiced administrative, transportation, real estate and finance law for more than of Texas Award of Merit. HN He has served on the State Bar of 30 years. Staff Report
Free Ethics CLE “Behind the Façade – How the Practice of Law Impacts the way Attorneys Handle Depression and Grief” Speakers: Dr. Benjamin Albritton, Dr. Adele Hurst, Terry Hill and Brett Stalcup. June 28, Noon at Belo Ethics 1.50 Sponsored by the Peer Assistance Committee
June 2012
In the News
June
From the Dais
Deborah Hankinson, of Hankinson LLP, participated in a panel presentation “How to Prevent a Runaway Arbitration,” during the American Bar Association Section of Litigation Annual CLE in Washington, D.C. Amy B. Ganci, of Ganci LLP, spoke to the 27th Annual National Conference on Equine Law sponsored by the University of Kentucky School of Law in Lexington, Kentucky.
Kudos
Fran E. Phillips, of Gardere Wynne Sewell LLP, was recently elected to the Board of the EPA Alumni Association, Inc. Amy B. Ganci has been admitted to the American College of Equine Attorneys. Nina Cortell, of Haynes and Boone, LLP, has been named recipient of the University of Texas School of Law alumni association’s Distinguished Alumnus Award for Community Service. Greta Cowart, of the firm, has been awarded a Burton Award for Legal Achievement for an article she authored for BNA Insights.
On the Move
Thomas Anderson Jr. has joined Shackelford, Melton & McKinley, LLP as Associate. Victoria Burress has joined Hartline Dacus Barger Dreyer LLP as Associate. William (Brad) Cox has joined Beal Service Corporation (a subsidiary of Beal Bank) as Corporate Counsel.
Sean Barrett has joined Wick Phillips Gould & Martin, LLP as Associate. Mary E. Spear has joined the state Department of Health Services, in Madison, Wisconsin and serves as Chief Legal Counsel. Peter Tierney has joined Hiersche, Hawyard, Drakeley & Urbach, P.C. Everett Upshaw has a new practice, Law Office of Everett Upshaw, PLLC, 13901 Midway Road, Suite 102-208, Dallas, TX 75244. Phone: (214) 680-6005. Kimberly Priest-Johnson has opened the office Priest Johnson PLLC, 13901 Midway Rd. Ste. 102-208. Dallas, TX 75244. Phone (214) 680-6005. Travis L. Boghetich, Lauren Godfrey, and Ken Martin have joined Quilling, Selander, Lownds, Winslett & Moser, P.C.; Boghetich and Godfrey joined as Associates and Martin as Shareholder. Paula Bennett has joined McCurley Orsinger McCurley Nelson & Downing, L.L.P. as Associate. Alexander G. Blue has joined the firm of Winn, Beaudry & Winn, LLP. Daniel B. Mathis has joined Devon Energy Corporation as an attorney in its Houston office. A. Shonn Brown has joined Gruber Hurst Johansen Hail Shank LLP as Partner. Vince Allen, of Carstens & Cahoon LLP, has been promoted to Equity Partner. James Gourley, also of the firm, has been promoted to Partner.
MartinMerritt pllc
• Stark Law/Anti-Kickback Compliance • Medical Negligence Defense • Medical Office Lease Negotiations • Medical Equipment Leases • Medical Partnership Agreements • Medical Insurance Disputes
The Physician’s Law Firm
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“We should talk. Before you draft your next contract for a medical provider.”
Leases • Medical Partnership Agreements • Medical Insurance Disputes • Medical Business Law and
• Medical
tions • Starkyou Law/Anti-Kickback • Medical Whether occasionally setCompliance up companies, draft
office Lease leases,Negotiations employment contracts, joint ventures, Office • Medical Equipment Leasesor•
partnerships for medical clients, you need to consult • Medical Insurance Disputes Medical aAgreements health lawyer to ensure your client isn’t•committing a federal felony. Federal Agents are cracking and Litigation • State and Federal Regulations • down Stark on statutory violations. In our experience, the first thing theCompliance client is going to tell federal agents, is that Kickback • Medical Negligence Defense • he entrusted the matter to you. At Martin Merritt, Lease Negotiations • Medical Equipment Leases we provide the independent health law consult. You keep the client. We draft the provisions which Partnership Agreements • Medical Insurance Disputes make the contract legal. Call or stop by our webBusiness Lawsite andfor Litigation • State and Federal more information.
Regulations
is a member of the Health Law Section of this Dallas •“Martin StarkMerritt Law/Anti-Kickback Compliance • Medical
Negligence
Texas Board of Legal Specialization.” Defense •the Medical Office Lease Negotiations •
Bar Association, and the State Bar of Texas. Not board certified by
100 •Crescent Court, Suite 700, • MediMedical Equipment Leases • Medical Partnership Agreements Medical Insurance Disputes
martin@dallasphysicanlaw.com
Dallas, Texas 75201 • (214) 459-3131
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Dal l as Bar A ssoci ati on l Headnotes 15
Classifieds
June
OFFICE SPACE
Sublease Office Space at Adolphus Office Tower: Two years left on term, low rate, reception, 4 offices, break room, conference room, valet parking and file room. Great views of Pegasus Park. Email Fredericks@hudsonpeters.com or call (972) 980-1188. Litigation firm seeking 7,500 -8,000 square feet of sublease space on a 3-4 year term. Please contact Paula at (214) 2124650 or pauladudlo@gmail.com. For Lease or Sale – Condo Office(s) In Preston Tower. Shared amenities (kitchen, conference room, reception area, bathroom). Near Preston Center, 10 minutes from courthouse. Call (214) 369-1171 or email herbhooks @aol.com. Uptown/Oaklawn area - Small Transactional and Litigation firm looking for a business or litigation attorney for office sharing - 2700 sq. ft. office in Class A building with garage. Fully Equipped Office with support staff. Potential for referral business. E-mail your information to OakLaw@gmx.com. Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1886 w/ hardwood floors throughout. Shared conference room. 2619 Hibernia St/Boll. 1 block from McKinney Avenue. Lawyers preferred. $700 - $800/month. Includes phone & internet. Phone (214) 9878240. Unfurnished office space for rent with Uptown family law / business litigation firm. Great location at Cedar Springs and Maple. Two window offices plus an open workspace. Total of approximately 485 sq. ft. Rent includes underground parking, receptionist, and access to shared kitchen and conference rooms. Postage meter, copier, scanner, and fax also available if needed. Possibility of referral work. Please call (214) 520-7494 or email cfaust@sullivancook.com for details.
Large furnished office space available within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, copier, fax, DSL & phone equipment are available if needed. There is a possibility of overflow real estate work. No long term commitment and a monthly rate of $650.00. Call (214) 520-0600. North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. Several offices available in different sizes, all with built-in mahogany secretarial carrel (located in outer office area). All have access to three conference rooms, copier, postage meter, high speed internet, phones and two kitchens. Receptionist services also available. Please call Kim at (972) 934-4100. 1500 square foot office available for sublease in Campbell Centre. Two large window offices, reception, conference room and storage/file rooms. Please contact spalmer@pamlaw.com. Office Share Wanted. 7 year attorney practicing in general civil and commercial litigation looking to office share with another law firm or other attorneys. Currently running my own practice with my own clientele, but interested in an opportunity for referral and/or overflow work. If interested, please email me at: attorneyjd2005@yahoo.com.
POSITION AVAILABLE
Firm Builders Wanted. Ready to be on your own but don’t want the headaches and risk of starting your own firm? Have a great practice but law firm politics aren’t allowing you the compensation you deserve? This AV rated corporate real estate/business law boutique in North Dallas may be your solution. Send cover letter and resume to: Dallas Bar Association, Box 2–12A, 2101 Ross Avenue, Dallas, Texas 75201. Oak Lawn business, commercial, bankruptcy, and construction litigation firm
Summer Law Clerks Pro Bono Luncheon
seeks experienced, stable, and hardworking civil litigator. Appellate and actual trial and deposition experience required. Excellent writing skills necessary. Some portable clientele a plus, along with insurance defense experience. Firm offers first rate office environment and tenured support staff. Compensation negotiable. This is an excellent opportunity for the right attorney. Respond to oaklawnfirm@aol.com. Downtown Dallas AV Rated Litigation Law Firm seeks experienced lateral partners with portable business in the areas of energy, health care, intellectual property, and commercial litigation. Firm offers excellent office location and support staff. Compensation negotiable. This is an excellent opportunity for attorneys who wish to get away from the large law firm environment. Respond to firmjustice2012@gmail.com. Estate Attorney. Sixty-lawyer general practice Far North Dallas firm seeks attorney with sophisticated estate planning experience (minimum 8 years, but much more experience welcome) to join estate practice group. Outstanding practice environment and opportunity. Email your resume to: estplanningatty@gmail.com.
POSITION WANTED
Contract Attorney. Experienced, AV-rated commercial litigation attorney available on an hourly basis for research, writing, drafting motions, pleadings and briefs, discovery, and trial preparation. High quality work product for your firm with no commitment and no overhead. Excellent references. attorney3503-7615@yahoo.com.
SERVICES
in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/ defenses, personal injury, moral damages, contract law, corporations. Coauthor, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com. Diamond and Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089. Economic Damages Experts - Thomas Roney has more than twenty five years’ 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, valuation and divorce matters. Mr. Roney and his experienced team of economic 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) 5137113. troney@thomasroneyllc.com. “We Count.” PLACE YOUR AD HERE! For affordable classified advertising rates call Judi Smalling at (214) 220-7452 or email her at jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
Mexican Law Expert - Attorney, former law professor testifying since 1997
Need someone to help take on the ‘unwanted’ office work?
Will your busy office need some quality help this summer? Let our Summer Law Intern Program help you fill the position – Part-time or Full-time for either 4-wks or 8wks – the choice is yours! We have goal-oriented DISD high school seniors interested gaining law firm experience by assisting you for a nominal fee. Employers can also interview and select these goal-oriented students from a large pool - expect the best.
Friday, June 1, Noon at Belo
Program: June 11-Aug. 3.
Learn about the many pro bono opportunities in Dallas. Co-sponsored by the DBA Pro Bono Committee and DVAP.
For more information, please contact Amy Smith at asmith@dallasbar.org or (214) 220-7484 or visit our website: www.dallasbar.org/summerlawinternprogram.
RSVP to perkinsa@lanwt.org. (MCLE 1.00).
NEED BILLABLE HOURS? Join the DBA Lawyer Referral Service Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
16 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
June 2012