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MBBP Attorney to Host Office Hours at TechSandBox 1/28/2016 01/22/2016

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Sean D. Detweiler (SDD)On  Thursday, January 28, MBBP Attorney Sean Detweiler will host Office Hours at TechSandBox to help answer your patent and strategy questions.

Office Hours provides access to experts in topics such as intellectual property, business formation, benefits, taxes, marketing, sales, funding, IT and technology commercialization. Sean will be available for one-on-one, 45 minute sessions from 1:00PM- 5:00PM. This event will be offered probono for TechSandBox members and to non-members as space allows.

Sign up today to reserve your time slot by visiting TechSandBox!

MBBP Attorney to Host Office Hours at TechSandBox 1/21/2016 01/08/2016

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DOLOn  Thursday, January 21, MBBP Attorney Daniele Ouellette Levy will host Office Hours at TechSandBox on entity selection (S Corp, LLC, etc.), stock structure, and equity considerations.

Office Hours provides access to experts in topics such as intellectual property, business formation, benefits, taxes, marketing, sales, funding, IT and technology commercialization. Daniele will be available for one-on-one, 45 minute sessions from 11:30AM- 3:30PM. This event will be offered probono for TechSandBox members and to non-members as space allows.

Sign up today to reserve your time slot by visiting TechSandBox!

MBBP Attorney to Sit on Panel, “Risk Containment Strategies for Start-ups” 01/07/2016

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M0846512On Wednesday, January 13, MBBP Attorney Mike Cavaretta will sit amongst panelists for The Startup Coalition’s upcoming panel, “Risk Containment Strategies for Start-ups.”

To join Mike and the other panelists, and to learn how to identify risks and the strategies for containing them, register here!

For more information, please feel free to contact Mike directly.

 

The Contours of Copyright #3: Too Short for Copyright? 01/04/2016

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Intellectual Property, Licensing & Strategic Alliances, New Resources, Publishing & Media.
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M0846618It is axiomatic that copyrights do not protect words or short phrases. But how short is too short for copyright? 10 words? 5 words? 3 words? Consider Henny Youngman’s classic 4-word joke, “Take my wife … please.” Is that a copyrightable jocular expression, or an uncopyrightable short phrase (or, for you copyright pros, a merged idea)? The answer is important, not only to comedians, but also to epigrammatists, songwriters, poets … and anyone who wishes to include, in a work they are creating, word sequences they’ve seen used by another.

A recent case, William L. Roberts v. Stefan Kendal Gordy (U.S D.C., S.D. Florida 2015), provides helpful guidance, though not a definitive answer.

Discussion: The plaintiffs, Roberts et al., owned the musical composition Hustlin’, whose chorus consists of the repeated refrain “everyday I’m hustling.” The defendants, Gordy et al., had a hit song, Party Rock Anthem, which included the phrase “everyday I’m shuffling.” When the defendants began marketing their “shuffling” phrase on T-shirts and other merchandise, the plaintiffs sued, arguing that their copyright in the song included a copyright in the “hustlin’” refrain, and therefore they could prevent anyone from copying that refrain, whether in a similar song or standing alone on a garment.

The defendants disagreed, and the court sided with them. Yes, said the court, the plaintiff’s song was entitled to copyright protection. However, “copyright protection does not automatically extend to every component of a copyrighted work.” Rather, because “originality” is the sine qua non of copyright, and short phrases are common and unoriginal, the copyright in a work does not extend to individual short phrases (or, of course, single words) in the work. This doesn’t mean, the court explained, that the presence of “ordinary” phrases deprives a work of copyright protection; but it also doesn’t mean that the copyright umbrella shelters every word or phrase contained in a copyrighted work.

Or, as the court puts it: “The question presented … is not whether the lyrics of Hustlin’, as arranged in their entirety, are subject to copyright protection. The question is whether the use of a three-word phrase appearing in the musical composition, divorced from the accompanying music, modified, and subsequently printed on merchandise, constitutes an infringement of the musical composition Hustlin’. The answer, quite simply, is that it does not.”

To add insult to injury, the court also notes that the terms “hustling” and “hustlin’” were used in many earlier songs, and that the plaintiffs never asserted that the phrase “everyday I’m hustlin’” originated with them – which in itself could have killed their copyright claim (to be copyrightable, a work needn’t be novel, as in the patent sense of never before appearing anywhere, but does need to be original, in the copyright sense of having composed it oneself without copying from another). Finally, says the court, there is no substantial similarity between the original musical composition, containing the (uncopyrightable) phrase “everyday I’m hustlin’,” and the defendant’s T-shirts, containing the (uncopyrightable) phrase “everyday I’m shuffling.”  In short, none of the plaintiff’s original expression was infringed by the defendant’s apparel.

An Interlude for Copyright Aficionados: There was nothing earthshaking about this decision, though it is interesting to read the court’s sampling of many short phrases that failed to win copyright protection, including: “so high” (2 words), “get it poppin’” (3 words), “fire in the hole” (4 words – uh-oh, Henny), “most personal sort of deodorant” (5 words), and “You Got the Right One, Uh-Huh” (5 words, plus an “Uh-Huh”). So, one might conclude, a half dozen words or more are probably the minimum required for copyrightability.

Perhaps the reason this court – and no court I’m aware of – has stated a bottom line number below which copyright cannot apply is that no one can be absolutely certain that a creative author couldn’t be original in even a handful of words. Let’s cheat, make up a word, and stick it in a short phrase: “She’s my joyzilla mama.” Four words – really 3 plus a mashup – which have never appeared before (a Google search more or less confirmed this).  Can I use copyright law to prevent another person from using my original phrase in a song or on a T-shirt?

My answer is a definite “maybe.” The epigrammatist Ashley Brilliant has successfully registered – and once successfully asserted – copyrights in his epigrams, many of which are quite short (such as, “When all else fails … Eat” = 5 words). Poets and songwriters often feel that their short but creative phrasings are worthy of protection. So maybe we can’t state an absolute bottom line because we can’t guaranty that a brilliant writer or composer won’t dash our assumptions.

Conclusion. Still, it’s hard to imagine anyone successfully claiming copyright in any 2- or even 3-word (real words, not coined) phrase – if for no other reason than given the relatively small number of meaningful 2- and 3-word phrases, and the exhaustive output of English speakers, each of those short phrases would have already appeared so frequently that no one using such a phrase could convincingly assert it originated with them, or that they should have the right to keep anyone else from using it.

So, unlike Roger Bannister running a mile under 4 minutes, the possibility of someone writing a copyrightable phrase of under 4 words (probably 5, possibly 6) should stand the test of time.

For more information on this topic, please contact Howard Zaharoff.

MomsTeam Institute’s #ForThePlayers 01/04/2016

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header-logoOn December 21, 2015, MomsTeam Institute of Youth Sports Safety held a special advance screening of Sony Pictures’s new movie, Concussion.

M0846567MomsTeam Institute is a registered 501(c)(3) non-profit organization formed in 2013 to continue and expand on MomsTEAM’s fourteen-year mission of providing comprehensive, well-researched information to sports parents, athletes, coaches, athletic trainers, and other health care professionals about sports health and safety, nutrition, and parenting.

Its Board of Directors is made up of nationally recognized youth sports health and safety experts and business leaders, including MBBP Corporate Attorney Shannon Zollo.

Sony Pictures has named the Institute as the charity of choice for their Social media challenge #ForThePlayers.  You can show your support on Instagram, Twitter, and Facebook using the hashtag #ForThePlayers. Don’t forget to tag @ConcussionMovie.

 

MBBP’s Howard Zaharoff Elected Secretary of the Harvard Alumni Entrepreneurs, Inc. 12/15/2015

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M0846618MBBP Attorney Howard Zaharoff has been elected to serve as Secretary of the Harvard Alumni Entrepreneurs, Inc., a Shared Interest Group of the Harvard Alumni Association.

Howard first became involved with the Harvard Alumni Entrepreneurs in 2006, when he helped manage its organization into a Massachusetts nonprofit corporation and assisted in obtaining its tax-exempt status.

Congratulations, Howard!

M&A Video Clip – Stockholder Representative: Common Issues in M&A Transactions 12/14/2015

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In the twelfth video of MBBP’s M&A Clip Series, Attorney Joe Martinez discusses stockholder representatives and describes how one should be selected.

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M&A Video Clip – Closing Conditions: Common Issues in M&A Transactions 12/08/2015

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In the eleventh video of MBBP’s M&A Clip Series, M&A attorney Joe Marrow discusses closing conditions in M&A Transactions.

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Join MBBP Attorneys for Upcoming Panel on Best Practices in Structuring Startup Founder Agreements 12/07/2015

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Startup-Coalition_LogoStartup co-founders are bound to disagree. A founders’ agreement helps to resolve key issues upfront, before the business has begun to accumulate value. Issues commonly addressed in the founders’ agreement include ownership, responsibility, decision-making, operating procedures, and assignment of intellectual property.

Who gets what percentage of the company?   How will decisions get made?  What happens if one founder leaves the company? Can any of the founders be fired?  By whom?  For what reasons?  Will any of the founders be investing cash in the company?  If so, how is this treated? What do investors expect to see in a founders’ agreement?

Join MBBP Attorney Mike Cavaretta and the Startup Coalition on Wednesday, December 16, for a panel discussion on founders’ issues and founders’ agreements. Amongst panelists will be MBBP Corporate Attorney Scott Bleier.

Register for the event here. For more information, please feel free to contact Mike directly.

M&A Video Clip – Non-Competes & Non-Solicits: Common Issues in M&A Transactions 12/02/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Corporate, MBBP news, New Resources.
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In the tenth video of MBBP’s M&A Clip Series, M&A attorney Shannon Zollo explains the importance of non-competition and non-solicitation covenants when buying a business.

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MBBP’s John Hession to Sit as Panelist for Upcoming Launch Smart Clinic 11/25/2015

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M0846571On December 1st, from 5:30 PM – 9:00 PM, MBBP Attorney and Investor John Hession will sit as a panelist for MIT Enterprise Forum of Cambridge’s Launch Smart Clinic With Agile Sensors And Kalgene Pharmaceuticals.

Pre-funded companies Agile Sensors and KalgenePharmaceuticals are to present their full investor presentation  and will receive feedback from  experts John Hession and  Jeffrey Moore.

The Launch Smart Clinic is an interactive panel and audience participation is encouraged! Learn more and register for the event here.

 

MBBP Attorney Robert Finkel Judges Case Competition 11/23/2015

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M0846558MBBP Attorney Robert Finkel was one of several judges in TAMID’s First Annual National Case Competition for TAMID at Boston University. TAMID is a comprehensive, multi-phased program that connects students with the Israeli economy. BU TAMID was one of 27 participants in the Competition.

M&A Video Clip – Earn-outs: Common Issues in M&A Transactions 11/09/2015

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In the seventh video of MBBP’s M&A Clip Series, M&A attorney Joe Marrow discusses earn-outs.

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Love Your Lawyer on National Love Your Lawyer Day! 11/06/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, MBBP news.
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image001On October 22, the American Bar Association adopted a resolution recognizing the first Friday of November as “National Love Your Lawyer Day,” “a day for the public to celebrate lawyers and express their gratitude to them for their affirmative contributions to the public good and the administration of justice.”

Don’t forget to Love Your Lawyer today! Read the resolution here.

MBBP Attorney Bob Shea Named Chair of SBANE Board of Directors 11/03/2015

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M0846617On October 28, MBBP Partner and Employment Attorney Bob Shea was elected to serve a third year as Chair of the Board of Directors of the Smaller Business Association of New England (SBANE). SBANE is a 600 member non-profit organization that helps New England businesses grow by providing profitable connections, innovation, leadership, advocacy, and education.

Congratulations Bob!

MBBP Attorney Co-Founds The Startup Coalition 11/03/2015

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M0846512MBBP Partner Mike Cavaretta is pleased to announce that he has co-founded The Startup Coalition, a group of seasoned business professionals serving as a resource to the Boston-area startup community, with offices at WeWork South Station in Boston. Members of The Startup Coalition represent a variety of service industries, and collectively cover virtually all of the key services that startup entrepreneurs and companies need.

In addition to Mike, who of course serves as legal counsel to startups, members of The Startup Coalition include Steve Davis of strategic operations, advisory and management firm The CXO Advisory Group; Eric Solem of commercial real estate brokerage Landmark Real Estate Advisors; Chris Donovan of employment benefits and insurance firm Telamon Insurance & Financial Network; Travis Drouin of accounting firm Moody, Famiglietti & Andronico; Dave McLaughlin of startup co-working space WeWork; Pete McDonald of Silicon Valley Bank; Bill Larrenaga of interim CFO service provider The CFO Center Limited; Jennifer Kamerman of content marketing, PR and technology agency MESH Interactive Agency; Steve Schultz of bookkeeping firm Supporting Strategies Partners; and Jim Da Silva of financial advisory firm GW & Wade.

M0846571In addition to the services that individual members of The Startup Coalition provide to startups, The Startup Coalition will offer a variety of programs and events at WeWork South Station in Boston. These will include monthly investor pitch practice sessions, office hours, workshops, panels, and networking events. The first of these events, a panel on Mistakes Entrepreneurs Make When Pitching to Investors, will be held on Wednesday, November 11, 2015, and will feature MBBP Partner John Hession, GrandBanks Capital Partner Tim Wright, and Hub Angels member Charlie Cameron.

Register for the event here.

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For more information on The Startup Coalition, please contact Mike Cavaretta.

M&A Video Clip – Working Capital Adjustment: Common Issues in M&A Transactions 11/03/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Corporate, M&A, New Resources.
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In the sixth video of MBBP’s M&A Clip Series, M&A attorney Scott Bleier explains why working capital is a vital piece of the M&A transaction.

M&A Clips Video #6 Common Issues in M&A Transactions- Working Capital Adjustment

The Sweetest Trademark Cases of 2015 10/30/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Legal Developments, New Resources.
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By Callie L. Pioli

In 2015 the U.S. Patent & Trademark Office (“USPTO”) received hundreds of thousands of trademark applications. While the USPTO did not face a scary number of cases in the candy and sweets industry, the ones that did appear addressed some very creative issues. As we prepare for this year’s Halloween and brace ourselves for the accompanying sugar-highs, we took a moment to trick-or-treat for the sweetest trademark cases of the year.

In re Kabushiki Kaisha Lawson

LawsonThe Japanese mega-brand Lawson filed with the USPTO to extend trademark protection covering its Uchi Café Sweets product line, currently registered in Japan. Lawson is a well-known operator of 便利店, “convenience stores” whose product lines epitomize the trend of cute, or kawaii, designs and objects common in Japanese culture and gaining popularity in the U.S. as well. Unfortunately for Lawson, UCHI had already been registered in the U.S. by Austin, Texas’s Uchi, a Japanese restaurant. Because of the similarity of the goods at hand, the USPTO declared that there is a likelihood of confusion among consumers as to the source of the confections, and accordingly denied registration.

In re Kristin Harris

GlutenIt is estimated that 1 of every 133 Americans suffers from Celiac disease; more still suffer from gluten-intolerance or gluten allergies. A great many delicious treats contain gluten-based sweeteners, such as barley malt, to sweeten the products (pure cocoa is devastatingly bitter.) Further, the tools and machinery used to harvest and process cocoa beans are often the same tools used to harvest and process wheat and other grains, creating cross-contamination issues for those with allergies. In response, entrepreneur KristAnn’s online store caters to those who are afflicted with Celiac disease, and offers shoppers the opportunity to purchase apparel and confections under the CELIABRATE (a combination of “celiac” and “celebrate”) brand. The issue that concerned USPTO was the use requirement. As trademarks are granted based on a mark’s use in commerce, a specimen demonstrating such use has to be submitted to the USPTO office during the registration process. In the specimen demonstrating use, KristAnn combined its mark with other phrases such as “Celiabrate Life,” “Celiabrate Love” and “Celiabrate Bliss.” The Examining Attorney felt that such combinations were inconsistent with the CELIABRATE mark for which KristAnn initially sought protection. Fortunately for KristAnn, the Trademark Trials & Appeals Board (“TTAB”) disagreed with the Examining Attorney based on the mark’s use with the variety of additional terms, as well as the mark’s independent significance. With the TTAB’s reversal of the Examining Attorney’s position, the mark will move on through the registration process and KristAnn may quite soon have another reason to Celiabrate!

In re August Storck KG

Storck

Have we gone 2far in our trans4mation of letters in common words? German candy company August Storck seemed to think it could push the boundaries a little farther. August Storck, known primarily in the U.S. for their brand “Werther’s Originals,” sought protection for its latest product in the candy market: “2good”. It is 2bad however that the mark “toogood” is already registered for use by the French distribution company Triumph Snat. The TTAB issued an opinion that, while not visually identical, the two marks were phonetically identical, and as the goods sought to be protected are substantially similar (though connoisseurs of German and French chocolate may disagree), there is a high likelihood of confusion between the two marks. August Storck was just 2 L8 this time.

For the rest of our list, click hereFor more information on trademark matters, please contact Callie Pioli.

MBBP Attorneys Daniele Levy and Scott Connolly Mentor Tech Entrepreneurs at Techstars’ Patriot Boot Camp 10/28/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events.
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Employment Attorney Scott ConnollyMBBP attorneys Scott Connolly and Daniele Levy recently served as volunteer mentors at Patriot Boot Camp, presented by Techstars, over three days in Detroit, Michigan.  Daniele and Scott mentored a group of more than 50 military veteran technology entrepreneurs, assisted them with developing and improving their business plans and investor pitches, and provided general start-up guidance.  In addition to serving as mentors, Daniele and Scott ran a mini “clinic” to help the participants navigate the corporate and employment law challenges faced by earCorporate Attorney Daniele Ouellette Levyly stage companies.  Techstars is a global ecosystem that empowers entrepreneurs to bring technologies to market and provides seed funding and intensive mentorship.  Patriot Boot Camp was started in partnership with Techstars as part of a broader effort to bring underrepresented populations into technology entrepreneurship.

Privacy for the Peeple 10/27/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Legal Developments.
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Callie L Pioli Web Hi Res Crop (M0702163)The concept behind the latest app startup, Peeple,  has been trending on almost every social and mainstream media outlet for weeks and has been collectively referred to as the “Yelp for People.” The app’s purpose is to allow users to rate individuals much the way they would a restaurant: one a one-five star rating system. Users must be over the age of 21 and have a Facebook account. All reviews must be posted under a user’s real name. As originally conceived, anyone you had ever given your phone number to, or anyone who could locate it in a directory, could create a Peeple profile for you. Once your profile was created, any user can post a review of you, whether you gave them your phone number or not and regardless of whether you yourself used the application. Upon learning of the application, many have asked “how is this even legal?

MBBP’s Callie Pioli has the answer. Read the full article here.

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