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The Morton Memo - AUGUST 2010

This issue concentrates on information to protect a business owner's brands and keep the business owner out of trouble in the rapidly growing area of eCommerce.  The Morton Memo is a bit different than past issues.  We are shifting to publishing a smaller newsletter more frequently. Our intention is the publish every couple of months.   The Morton Memo is for you, so kindly email me those topics of interest to you.

>> Protect your trademarks overseas

>> eCommerce Dos and Don't

>> Presentation at Marketing Expo in September!

Protect your trademarks overseas

big ben

Suppose you desire to sell your company’s goods or services in another country.  How do you go about protecting your brands overseas?  This may seem complicated but it might be simpler than you think.

The United States is a party to a series of agreements called the Madrid Protocols. The Madrid Protocols streamline the process for obtaining international trademark registrations.  Rather than filing applications in each country, a trademark owner can file one application for multiple countries.  The filing is handled by the World Intellectual Property Organization (WIPO) which is based in Geneva, Switzerland.

To obtain an international registration through the Madrid Protocols, the trademark owner must have a Federal registration in the United States or an application filed for a U.S. Federal registration.  In the United States, Federal trademark registrations are handled by the U.S. Patent and Trademark Office (PTO).  Other countries have similar offices. 

With a U.S. Federal registration, or an application for one, the trademark owner can apply to WIPO for an international registration.  The application to WIPO is handled through the PTO and the PTO’s website. 

The trademark owner fills out the appropriate application and pays the appropriate fees.  The trademark owner designates the countries the owner wants its trademark registered.  If the application is properly filled out and filed, the PTO certifies it and transmits the application to WIPO. 

WIPO reviews the application to ensure that the trademark can be registered and that the descriptions of goods and services are correct.  WIPO then transmits the application to each of the countries designated by the applicant.  Each of those countries’ official intellectual property office examines the application and determines if the trademark can be registered in that country.  If the trademark can be registered, then the country will issue a registration. 

International Registrations can be a very effective tool in protecting a trademark.  Such a registration can prevent, or at least fight, piracy overseas.  

The owner of a trademark can always file a trademark registration directly with a foreign country and there are reasons it might do so.  There are a few countries which are not party to the Madrid Protocols, notably Brazil, Canada and India.

If you have an interest in filing an international registration, please contact us at emorton@ericmortonlaw.com or (760) 722-6582.

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                                                                                                          ecommerce dos and don'ts

eCommerce More and more companies are selling products and services online. Typically, a consumer, or a business, will select products on a website and, when the purchase is to be finalized, the purchaser is taken through one or more web pages to finish the order.

The manner in which those online transactions are conducted has become a hot topic in the area of cyber law. The Federal Trade Commission has started to crack down on unfair business practices by online companies. For instance, the FTC is suing companies that use “pre-populated” forms. Those are forms that automatically check items on the form when the form appears on the website. Some companies have pre-populated order forms that automatically mark products to be purchased unless the consumer unchecks the product. One company had a pre-populated form that extended below the screen. In the area out of sight were two services that were pre-marked. Unless the consumer scrolled down and discovered and unchecked the services, the consumer would unwittingly order them and would be charged on the consumer’s credit card. The FTC sued this company and stopped this practice.

The FTC is also cracking down on companies that have click-on advertisements that lead consumers to forms that order more than what was described on the original advertisement.

More and more small businesses have begun to sell products and services online. As they do so, they are often not aware of what they cannot do online. Their web designers and marketing experts are also not knowledgeable of recent developments in the law.

The following are a few do's and don’ts regarding online sales.

1. Do make order forms easy to use and clear.

2. Don’t pre-populate an order form with more products that what the consumer expects.

3. Do put all products to be ordered in plain sight.

4. Don’t hide obligations in lengthy Terms and Conditions.

5. Don’t obligate the buyer to purchase anything other than what the buyer expects to buy when the consumer navigates to the order form.

6. Don’t package free services with purchases if those free services become paid (and charged to the consumer’s credit card) after a trial period. Only do so if the consumer has the option to not order on the form.

In general, a consumer on an eCommerce website must not be tricked in any fashion or be obligated to purchase anything other than what the consumer expects.

If you need more information about eCommerce and the do's and don’ts of online ordering, contact me at emorton@ericmortonlaw.com or (760) 722-6582.

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PRESENTATION AT MARKETING EXPO IN SEPTEMBER!

On September 23, 2010, I will give a presentation at a dynamic networking and educational event - The Marketing Expo - at the Hilton Garden Inn in Carlsbad.  My presentation will be entitled "Branding in the Digital Age."  The Marketing Expo is brought to us by Do Business Smarter.  The expo is from noon to 4 p.m. with a networking event afterwards. To register, or get more information, go to www.TheMarketingExpo.com or call (760) 602-9321 ext. 111.  I hope to see you there!

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