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?


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

trade secretWhen many entrepreneurs think of trade secrets, they think of high-tech companies or large manufacturers. For example, software architecture and source code are generally protected using trade secrets. Another example of businesses that have many trade secrets is legacy manufacturers which need to protect how products are made, what products are made out of, etc. Famous examples of trade secrets from these industries range from Google’s® search algorithms to KFC’s® “11 secret herbs and spices.”

But all businesses – even the most “simple” – have trade secrets. At the very least, all businesses have customer lists, vendor lists, profitability/pricing information, etc. – with many businesses having much more. The best way to evaluate whether certain information might be a trade secret is to think about real-world business consequences. I often ask my clients,

If one of your best employees left for a competitor and took certain business information with them, would that be upsetting?”

If the answer is “yes,” then that information needs to be evaluated for potential trade secret protection. That can run the gamut from customer lists to the “secret sauce” that makes a business successful.

Whether your business is large or small, below are five important tools that can be used to protect trade secrets.

Legal Tools to Maintain Secrecy


Continue Reading 5 Tools Small Businesses Can Use to Protect Their Trade Secrets

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”?


Continue Reading NFTs and Intellectual Property

IP LawAfter years of research and development, your company is finally about to launch a new “game changing” product. You know you need to protect this product, but where do you start? What do you name your new product, and how do you protect that name? These and other frequently asked questions often arise in new entrepreneurial ventures — whether for new businesses or new product lines for existing businesses.

Most business owners intuitively understand the value of their intellectual property. They understand that their products, brands and other ideas need to be protected, but can be confused by some of the “jargon” used in intellectual property law with words like “patent,” “trademark” and “copyright.” This post helps explain some of the key differences between patents, trademarks and copyrights.

What is a patent?

A patent is a legal right to exclude others from making, using, selling, offering for sale, or importing a patented invention for a fixed period of time. In the U.S., patents are exclusively under federal jurisdiction and are awarded by the U.S. Patent and Trademark Office in exchange for making public an enabling disclosure of the invention, and generally last for 20 years (15 years for design patents).


Continue Reading What is the difference between patents, trademarks and copyrights?

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?


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

iphone photoUnbeknownst to most software users, many of the world’s largest software companies have relatively complicated software license terms in the event of a user’s death. This can present an emotional and unnecessary complication at a loved one’s passing.

An illustrative and all too commonplace example of this can be found in the terms and conditions of Apple’s iCloud platform. One section of the terms of service of Apple’s iCloud software (as of the publication date) entitled “No Right of Survivorship” which provides that:

Unless otherwise required by law, You agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account deleted. Contact iCloud Support at https://support.apple.com/icloud for further assistance.”

In other words, Apple has a right to terminate an iCloud account and delete all the data stored in that account upon a user’s death. Many companies structure software licenses in this manner in order to avoid potential contractual liability in the event of a dispute over access to a deceased user’s account.

Legal Rights to Access Digital Content


Continue Reading Digital Intellectual Property: What rights does Apple have over digital photos upon death of a user?

As we age, memories of family and friends become all the more treasured. Indeed, for many of us, our most valued possessions are those things which “captured” such memories – home videos of our children’s first steps, photo albums of family members, and so on.

Traditionally, making estate planning provisions for these items was relatively simple – memories were all “captured” in tangible “containers,” i.e., recording media, such as photograph paper, VHS tapes, CD’s and DVD’s.

More recently however, digitization has changed the way memories are stored. Gone are the days of physical “containers.” Photographs, videos and other media are now almost exclusively stored in digital format: whether on a physical device such as a laptop computer or “in the cloud” on platforms such as Gmail, Facebook, DropBox and iCloud.

This continuing digital revolution has changed the way we store intangible, electronic assets – or “digital intellectual property.” Ownership of a “container” is different than ownership of the underlying rights in the content stored in such a “container”: an important distinction to keep in mind when estate planning.

Digital Executor

First, select an executor. This person will carry out the will’s instructions and is a critical part of any estate planning. Often, executors are tasked with collecting, liquidating and distributing the assets of an estate to various named beneficiaries. Unfortunately, many executors are ill-prepared for the various challenges associated with the collection and distribution of digital assets.

Accordingly, estate planners may wish to consider appointing an additional, “digital executor” – a person who is technologically savvy and can help the primary executor with the various computer-related functions of managing digital intellectual property. This could be an independent professional (Henderson Franklin offers such service) or a computer-literate family member who can help secure and distribute digital IP in accordance with the terms of the will (e.g., ensuring that all the testator’s family and friends receive access to digital photographs, videos, etc.).

There are three primary guiding principles which estate planners should follow, namely:

  • maintaining physical access to hardware;
  • maintaining electronic access to hardware and digital access to software; and
  • proactively establishing a legal right for loved ones to access digital content.

Physical Access to Hardware


Continue Reading Protecting Your Digital Intellectual Property Through Estate Planning

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

Product packaging is a critical part of every manufacturer’s operations (and even that of many wholesalers and retailers). A product’s packaging is often the first thing customers see: and first impressions count. That is why, for example, an entirely new discipline – packaging engineering – has grown over the last several decades and why companies like Starbucks® and Apple® work so hard to have every napkin, cup, box and bag uniformly branded.

Yet despite the obvious commercial and marketing importance of product packaging, many companies fail to protect the intellectual property rights embodied in such packaging – rights which can often be secured under patent, copyright and/or trademark law.

Product packaging is one of those often overlooked areas of intellectual property. Manufacturing clients rightly focus on protecting their products but sometimes forget that consumers usually see their packaging first. Failing to protect such packaging can be a major misstep since competitors often infringe upon both packaging as well as products.

Design Patent

A design patent protects the ornamental design (i.e., the “look and feel”) of an invention. In other words, design patents protect the way an invention (including, potentially, product packaging) looks. When most people think about patents, they think about a “utility patent” – something which protects utilitarian or functional aspects of an invention. But a “design patent” is different – it protects the appearance of an invention. That’s often perfect for packaging. In general, that means that new, useful and non-obvious packaging designs can potentially be protected.

Major companies have been using design patents to protect product packaging for over a century. For example, U.S. D48160 is a design patent issued in 1915 over what we now know as the Coca-Cola® bottle. More recent examples include everything from Chobani’s design patent covering product packaging for yogurt boxes (U.S. D828766S1) and Kraft’s design patent covering a salad dressing bottle (U.S. D659000S1) to Starbucks’ design patents for a coffee cup (U.S. D529762S1) and a coffee cup lid (U.S. D516424).

How should companies decide whether or not to consider seeking design patent rights?


Continue Reading Copyright and patent protection apply to product packaging, too

In today’s internet-driven economy, businesses recognize the importance of using digital content to reach consumers. However, this often creates unique intellectual property issues – including potential copyright infringement questions.

Photographs and videos are amongst the most effective digital content – garnering significantly more likes, comments and click-thoughts on social media than text-based posts alone. While the use of photographs and videos presents an enormous marketing advantage, it also raises additional potential for legal exposure where such photographs or videos are not carefully sourced.

Protections under Copyright Law

Copyright law protects the creative expression of an idea – be it words on a page, notes in a song, brushstrokes on a canvas or the various compositional elements in a photograph or video: such as lighting, shadow, camera angle, etc. Such copyright protection can extend to photographs of products, places and people. While you cannot “copyright” a person, for example, copyright protection could extend to a particular photograph of a person.

Copyright protection over photographs has been recognized in the U.S. since the late 1800s – and therein lies the challenge. Often we are left trying to fit 21st century issues into 19th century legal frameworks. Sometimes, this results in illogical outcomes.


Continue Reading Copyright Issues Using Photographs and Videos on Websites and Social Media