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Mark Nieds

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Mark concentrates his practice on intellectual property and Internet matters with specific emphasis on trademark selection, registration, enforcement and litigation, copyright, and trade secret protection.

For over twenty years he has advised clients on domestic and international intellectual property issues, including such matters as new product launches, corporate rebranding projects, acquisitions and licensing. He has extensive experience with U.S. and International trademark matters, from selection and clearance of marks through registration, licensing and enforcement of rights. Mark has represented trademark owners in cease and desist matters as well as in the federal courts in infringement and counterfeiting actions. He has also been involved in numerous Opposition and Cancellation proceedings in the Trademark Trial and Appeal Board.

In addition to intellectual property, Mark’s practice also encompasses internet-related legal issues. He has assisted clients with the creation and implementation of privacy policies, terms of use agreements, user agreements and DMCA compliance. Mark has also been involved in domain name litigation and cybersquatting matters and helped develop domain registration strategies for clients.

Mark is also involved in copyright registration and licensing, developing trade secret protection strategies, non-disclosure agreements and non-compete agreements, marketing and advertising review, and intellectual property due diligence projects.

Prior to joining Henderson Franklin, Mark practiced law in Chicago, Illinois. He was born and raised in Chicago and currently resides in Fort Myers. When not working, Mark enjoys cycling and triathlons.

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cybersecurity

In recent years, cybersecurity has become a significant concern for businesses of all sizes across the United States, and Florida is no exception. With the increasing amount of sensitive data stored online and the rising threat and sophistication of cyber attacks, Florida businesses must take proactive measures to protect themselves from potential cyber threats. Below are the top five cybersecurity concerns for Florida businesses:

  1. Phishing Attacks. Phishing attacks are a type of cyber attack where criminals send emails, text messages, or social media messages to trick people into giving away sensitive information such as passwords, credit card numbers, and social security numbers. In Florida, phishing attacks are one of the most common types of cyber attacks that businesses face.
  2. Ransomware Attacks. Ransomware is a type of malware that encrypts a victim’s files and demands payment in exchange for the decryption key. A ransomware attack can completely lock down a computer network and seriously cripple a business.  Like phishing scams, ransomware attacks rely on unsuspecting people to click links, usually in email, to trigger the attack.
  3. Insider Threats. Insider threats are cyber threats that come from within an organization. These can include employees who intentionally or accidentally leak sensitive data or damage computer systems. Businesses would be wise to implement security policies and procedures that limit access to sensitive data and monitor employee behavior for signs of suspicious activity.
  4. IoT Devices. Internet of Things (IoT) devices are becoming increasingly popular in homes and businesses across Florida. These devices, such as smart speakers, security cameras, and thermostats, are often vulnerable to cyber attacks because they lack proper security measures.
  5. Third-Party Vendors. Many businesses in Florida rely on third-party vendors for IT support, cloud storage, and payment processing. While these vendors can be a valuable resource, they also pose a significant cyber risk. To protect themselves, businesses should thoroughly vet their vendors before working with them, require them to sign contracts that include cybersecurity provisions, and regularly monitor their security practices to ensure they are up to par.

5 Cybersecurity Tips

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Continue Reading Securing Your Florida Business: Navigating the Top 5 Cybersecurity Risks

Health-related apps are widely available for smartphones and watches. There is no shortage of connected health-monitoring devices such as personal glucose and heart rate monitors.

These apps and devices read, track and record both health-related information and, by signing up for or registering the app or device, information that identifies the particular person using the app or device. Some of these apps and devices even interface with other apps or devices; for instance, syncing the calendar apps records histories like sleep cycles, heart rate or glucose levels or to forecast such as fertility cycles. The question then arises:

What protection do consumers have over the health and personal data generated by these relatively new apps and connected devices?”

The Federal Trade Commission (“FTC”) recently issued a policy statement addressing this issue and protection of the information gathered by these relatively new technologies.

Existing Framework

Privacy of health-related information gathered by providers of healthcare services or supplies — such as physician offices and pharmacies — has long been protected by the Health Insurance Portability and Accountability Act (“HIPAA”). HIPAA also contains provisions requiring healthcare providers to notify impacted individuals when HIPAA-protected data is breached or compromised and the FTC enforces those provisions.…

Continue Reading FTC Addresses Privacy Concerns over Data Collected by Health-related Apps and Devices

Data privacyCurrently, there is no broad, generally applicable federal law or regulations concerning data privacy, the collection and use of data or consumers’ rights regarding same. Instead, the matter has been left to the individual states to address. California has led the charge and its data privacy laws are generally regarded as the strongest and most consumer-friendly.

2021 Florida Legislative Session

Earlier this year, the Florida legislature took up the question of online privacy and considered HB 969, the Florida Consumer Data Privacy Act. Modeled after similar legislation in California, HB 969 contained provisions that, among other things, imposed requirements on businesses that collect information from consumers via websites or apps. Specifically, such businesses would be required to inform consumers exactly what data they collect and how they use that data. Consumers would then have the opportunity to grant or deny authorization to collect and/or use that data. HB 969 also contained a provision that would have allowed consumers to sue businesses that used information without authorization.

Because of the parallels to California privacy law and the rights it would give consumers, HB 969 was a landmark piece of legislation that, in terms of data privacy, would rank Florida among the most protective states in the Union. However, HB 969 was heavily lobbied and debated as business interests did not like the potential exposure to suits from consumers relating to the use of personal data. While there was broad, bipartisan support for the bill, the Legislature could not compromise and HB 969 died on the floor on the final day of the legislative session.

Where does Florida rank?

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Continue Reading Data Privacy in the USA: Where does Florida rank? Where are we heading?

CryptocurrencyOver the last several months, there have been dozens of news stories about cryptocurrencies, Blockchain, and the related technologies they have created. One item, in particular, has received an incredible amount of press—the NFT. Who has not heard of the $69 million price tag on Everydays – the First 5000 Days and other outlandish prices for digital art. This article will try to explain just what an NFT is and, because of their relationship to the creative arts, some of the intellectual property issues surrounding them.

It all starts with Blockchain

Blockchain is a technology that has emerged as an innovative, record-keeping technology that authenticates transactions. It is essentially a transaction ledger that is open and decentralized, so anyone, with proper access credentials, can view the ledger to the authenticity of whatever is being transferred and the chain of ownership. Blockchain is the technology behind cryptocurrencies like Bitcoin and Dogecoin and ensures that the cryptocurrencies being transferred in a transaction are authentic.

What is the difference between “fungible” and “non-fungible”?

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Continue Reading NFTs and Intellectual Property

Hello My Name IsWhen launching a business or a new product, one of the most important initial considerations is the name of that business or product. The name is the first thing a potential consumer comes into contact with and what the consumer will remember. The name is the vehicle by which all marketing will travel and will be repeated over and over in advertising, on social media and websites. It is, therefore, one of the things that businesses strive to “get it right.”

Usually, this is something that is left to the creative types — those who understand market research, focus groups and creating all-around brands. However, even at the early stages, businesses should pay attention to the legal side of branding to make sure they “get it right.” If you are launching a new business or a new product, be sure take into consideration the following areas.

Will the name also be the company name?

If so, in addition to any trademark concerns, it is imperative to check that the company name is available in the state where the business will be formed. Most states do not allow two businesses to have identical names, regardless of the goods or services they offer.

Is the name distinctive?

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Continue Reading Branding 101: What’s in a Name?

Business relationships often lead to the exchange of sensitive information or access to highly confidential matter. When faced with this situation, is it enough to merely tell your business partner that something is confidential? Absolutely not.

Businesses should always protect their confidential information using a Non-Disclosure Agreement (NDA). NDAs are commonly used when businesses are contemplating or negotiating some sort of contractual relationship or deal. The NDA allows one party to share confidential and trade secret information with another and places restrictions on how the other party can use that information and obligates the other party keep such information confidential.

Under both the Federal Defend Trade Secrets Act and Florida’s Uniform Trade Secrets Act, trade secret owners must make reasonable efforts to maintain the secrecy of their confidential information. Using an NDA when disclosing confidential information demonstrates making reasonable efforts to protect that information.

However, some businesses do not have a standard form NDAs they can readily use. Also, many other businesses develop a general and broad NDA that they use over and over in all situations. Because it is good practice to have an NDA ready for situations where disclosure of confidential information is required, business should keep in mind the following issues to ensure they are adequately protected.

No Expiration Dates…

Continue Reading 5 Simple Things to Keep in Mind with Non-Disclosure Agreements

Since businesses like Amazon and eBay first burst upon the scene in the mid-1990s, shopping via the Internet has grown from a quirky way to find a few items to a convenient way to purchase just about anything. As we approach the first major holiday season with people wary of exposure, travel difficulties and social distancing within families, shopping on the Internet is the preferred option for many people, including many who are not experienced online shoppers.

While shopping online instead of at the mall can certainly lower the risk of exposure to COVID, it does, however, increase the risk of exposure to other dangers, such as hackers looking for personal information, malware, and identity theft.

Safe Online Shopping Tips

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Continue Reading Put personal info protection on your holiday shopping list

With Election Day rapidly approaching, campaigning has become fierce. From President Donald Trump and Joe Biden down to Congressional, State Legislature and local candidates, everyone is blasting out their “message.” One way politicians like to get their messages across is by music. Snippets of songs create earworms that voters begin to associate with certain candidates — so why wouldn’t a candidate use music in their messaging, especially anthemic songs like Bruce Springsteen’s “Born in the USA,” Neil Young’s “Rockin’ In the Free World,” or Tom Petty’s “I Won’t Back Down”?

While candidates love the association a song gives voters, often the artists do not. Every election cycle contains at least a few artist/politician disputes over use of music. How is this controlled and who has the right to control when and by whom music is used politically?

Copyright Law

Copyright protects original expressions reduced to tangible form. This includes music, both recorded and written, lyrics, and the song composition or arrangement. For a given piece of music, there may be several different copyright owners — the songwriter may own the lyrics, the composer may own the score, a record label or publisher may own the recorded version of a song. Copyright gives the owner of the expression the right to control copying, distribution and even use of copyrighted material in particular circumstances.

How does this play in to political marketing and who controls the use of songs?

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Continue Reading Political Music — Who Controls Use?

Trademark scams, as detailed in our earlier post here, are back with a vengeance. Because of the nature of these scams and the potential cost of falling for them, we felt it was time to address this topic again.

How Trademark Scams Work

Federal trademark applications and trademark registrations are public records. The United States Patent and Trademark Office maintains a searchable database of currently existing and expired trademarks. Among other information in the database is the name and address of the owner of a trademark application or registration, USPTO Serial and Registration Numbers, registration dates and even visual images of trademarks.

Scammers can obtain this information directly off the USPTO website and enter it into documents that look “official” and emanate from such “official” entities as World Trademark Register, United States Trademark Compliance Office, Patent & Trademark Bureau, United States Trademark Registration Office, and WTP Trademark Service.…

Continue Reading Don’t Be the Victim of a Trademark Scam

While COVID-19 rightfully dominates news coverage and Henderson, Franklin has been providing our clients with information, updates and links to resources to help get through this, we also recognize that the mundane is sometimes just as important. Thus, in a world without Major League Baseball, the NBA, NHL, NASCAR or F1, we offer our own unique sports coverage, with an intellectual property slant.

Tom Brady Leaves Boston, Files Trademarks Applications

After 20 storied years with the New England Patriots, Tom Brady turned his back on the franchise, his fans and six Lombardi Trophies to sign with the Tampa Bay Buccaneers. This is undoubtedly a bitter pill for New England fans to swallow, who will now have to get used to mediocre football. (Patriot fans, please see Chicago Bears for guidance).

On the other hand, with his place in the Hall of Fame secure, Brady was looking for new challenges. Specifically, it appears, the challenge of brand extension. Almost as soon as the ink dried on his new contract with Tampa Bay, Brady’s management, TEB Capital Management, Inc., filed applications to register the trademarks TOMPA BAY and TAMPA BRADY with the United States Patent and Trademark Office. The trademark applications identify the goods the mark will appear on, specifically all the clothing, hats and footwear that Tampa Bay fans are rushing out (at least online!) to buy. Time will tell whether Brady can repeat his on-field success with Tampa Bay, but it is certain that his off-field brand strengthening moves will allow him to throw from a deep pocket.

Nature Boy Down for the Count…
Continue Reading The Sports Page