The Swier Law Firm Corporate and Business Law FAQs

Corporate and Business Law FAQs The Swier Law Firm

Have questions? We have answers! Our South Dakota attorneys answer the questions they hear most often from clients just like you.

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  • What is the Computer Abuse and Fraud Act?

     

    The Computer Abuse and Fraud Act (CFAA) is a broad federal law that criminalizes numerous activities related to computers and computer networks. The CFAA is not only a criminal law, but also gives private individuals and corporations the right to sue to recover damages.

    The Act forbids anyone from accessing a computer "without authorization." The courts have interpreted this to mean that violating a company's terms of service is equivalent to "accessing that company's computers without authorization." Because the law threatens to burden free expression conduct (such as journalists or researchers using automated web browsing tools), some critics, including free speech advocates have voiced criticism of the CFAA's role in social media censorship.

  • South Dakota Cyber Law - What is the Digital Millennium Copyright Act?

     

    The Digital Millennium Copyright Act of 1998 (DMCA) was the foundation of an effort by Congress to implement United States treaty obligations and to move the nation's copyright law into the digital age. But as Congress recognized, the only thing that remains constant is change. The enactment of the DMCA was only the beginning of an ongoing evaluation by Congress on the relationship between technological change and U.S. copyright law. 

    The DMCA is divided into five titles:

    • Title I, the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” implements the WIPO treaties.  
    • Title II, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.
    • Title III, the “Computer Maintenance Competition Assurance Act,” creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.
    • Title IV contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.
    • Title V, the “Vessel Hull Design Protection Act,” creates a new form of protection for the design of vessel hulls. 

  • What Are The Three Types of Cyber Crimes?

     

    There are three major categories of cyber crimes:

    1. Crimes Against People 

    These crimes include cyber harassment and stalking, distribution of child pornography, credit card fraud, human trafficking, spoofing, identity theft, and online libel or slander.

    2. Crimes Against Property 

    Some online crimes occur against property, such as a computer or server. These crimes include DDOS attacks, hacking, virus transmission, cyber and typo squatting, computer vandalism, copyright infringement, and IPR violations.

    3. Crimes Against Government 

    When a cybercrime is committed against the government, it is considered an attack on that nation's sovereignty. Cybercrimes against the government include hacking, accessing confidential information, cyber warfare, cyber terrorism, and pirated software.

  • Protecting Your Ideas - What other social media platforms should I protect?

     

    Few things are worse than taking the time to register your business name and obtain your trademark but losing the ability to have matching social profiles. A large portion of digital marketing takes place on your social media accounts and having identical names can be the difference between a customer finding you or finding your competitor.  For example, you should register “@mycompany” on Twitter and Facebook.com/”mycompany” to maintain the rights to them. You should consider claiming these online account profiles:

    • Facebook
    • Twitter
    • Instagram
    • Snapchat
    • Reddit
    • LinkedIn
    • Google+
    • YouTube

  • Protecting Your Ideas - What is domain name registration?

     

    In addition to filing for trademark registration, you should consider registering domain names that incorporate your important trademarks. Early domain name registration may prevent another party from registering the domain names and stopping you from using those domain names in your business.

    In some instances, companies will also register domain names that are similar to their trademarks as a defensive measure to discourage cybersquatters and typosquatters who often seek payment for the transfer of domain name registrations. While it is possible to file a complaint to have a domain name transferred to the rightful trademark owner, it is typically less expensive to register domain names early in order to “lock up” the rights.

  • Protecting Your Ideas - Can you reserve a trademark for the future?

     

    Yes. If you are in the planning or development stage of creating a product, you may have an idea for the product’s name that you'd like to trademark, but you don't plan to immediately offer the product to the public. The USPTO allows you to file an "intent to use" (ITU) trademark registration. Filing for an ITU doesn't establish a trademark, it reserves the trademark for future use.

    Once you've reserved your ITU trademark, you must use the mark within six months to three years of filing the ITU. Once you actually use the mark in commerce, the “use” of the trademark back-dates to your ITU filing. Under most circumstances, it pays to file for an ITU if you are sure you want to use a certain trademark.

  • Protecting Your Ideas - How can you maintain your trademark?

     

    To maintain your trademark, you must file your first maintenance document between the 5th and 6th year after the registration date. Your registration certificate contains important information on maintaining your federal registration. If the documents are not timely filed, your registration will be cancelled and cannot be revived or reinstated, making the filing of a brand new application to begin the overall process again necessary.

    Rights in a federally registered trademark can last indefinitely if you continue to use the mark and file all necessary maintenance documents with the required fees at the appropriate times.

  • Protecting Your Ideas - Can you lose your rights in a trademark?

     

    Yes. The most common way to lose rights in a mark is to stop using it with no intention to use it again. This is called “abandonment.” However, there are also ways in which trademark rights may be unintentionally lost.

  • Protecting Your Ideas - How can you monitor your trademark?

     

    Monitoring your trademark sounds simple, but you would be surprised how many trademarks are just sitting there with no one paying attention to them. Once your trademark registration is approved, you can start using the registered trademark symbol, ®. But your efforts to protect your trademark shouldn't end there. Throughout the life of the registration, you must police and enforce your rights. The USPTO registers trademarks, but it does not enforce them – that's up to you.

    One way to protect your trademark is to monitor USPTO filings and oppose any applications to register trademarks that seem similar to yours. Another is to be assertive if you learn that another company is using a name or logo that’s similar to your trademark. Sometimes, a letter to the infringer will stop his actions. However, if that doesn’t work, your federal trademark registration gives you the right to file a lawsuit.

  • Protecting Your Ideas - What is “genericide”?

     

    A word that initially functions as a trademark can lose its trademark significance and become a generic term if consumers improperly use the mark in a generic sense to identify a particular type of product or service regardless of source. This phenomenon is sometimes called “genericide.”

    Former trademarks like “kerosene,” “escalator,” and “aspirin” all met this fate. Consistent and proper use of trademarks and consumer education can help combat genericide. For example, the Xerox Company has successfully protected its XEROX® mark from genericide by investing in special advertising to educate the public about the proper use of the mark.