Last month, I had the pleasure of chaperoning my oldest son’s Boy Scout troop at summer camp. That’s right, a full week in the woods of North Carolina … sleeping in a hammock! Besides a little rain and chiggers, the week was a great experience and much more enjoyable than my last summer camp stint decades ago!
Flags, Patches, Emblems, & Badges!
As a trademark lawyer, encountering many of the distinctive symbols and flags associated with the Boy Scout organization and its traditions was fascinating. The scouting community operates using an enormous number of symbols. Click here to see examples of troop flags and here for uniform examples.
Like trademarks, the many Boy Scout uniform patches, emblems and badges serve various identifying purposes that facilitate running the organization and carrying on its traditions. Different patches identify each troop, each patrol within the troop, each council to which the troop belongs, and each rank earned. There is a scouting patch for virtually everything – leadership positions held, geographic locales, events completed, skills learned, courses studied, trails hiked, mountains climbed, and many other accomplishments.
Seasoned scouts and leaders recognize these symbols easily and ascribe important significance to them. For the novice like me, however, the symbols and patches serve mainly as topics of educational and entertaining conversation. The glowing Nuclear Panda and the Bacon Ninja patrol patches made me smile. (Click on the names to see them.)
The 2014 Polar Bear Plunge patch is my current favorite:
Symbolizing our daily 6 a.m. hike and plunge into the lake, which has now become a small source of pride (and bragging rights)!
The Flag Retirement Ceremony
One particularly meaningful event that took place was a flag retirement ceremony around our campfire. For years and as a community service, Troop 463 (Sandy Springs, Georgia) has collected old, worn, tattered, frayed or faded U.S. Flags, and the scouts carry them to campouts for proper retirement and disposal. On this trip, we brought a dozen or more flags. In contrast to other camp events like water balloon launching (hundreds of yards!), zipline rides, hilarious staff skits at bonfires, and the polar bear plunges, the ceremony was a solemn, meaningful memorial service for American Flags that had completed their service.
Flag retirement ceremonies are conducted pursuant to the U.S. Code. In particular, 4 U.S.C. § 8, entitled “Respect for Flag,” sets forth terms and conditions for caring for American Flags. Section 8(k) provides:
“The flag, when it is in such condition that it is no longer a fitting emblem of display, should be destroyed in a dignified way, preferably by burning.” 4 U.S.C. § 8(k).
We prepared about a dozen flags for the ceremony one evening near our campfire. Using pairs of scissors, scouts and leaders cut the blue fields away from the red and white stripes, and then separated the stripes from one another. The separated blue fields and red and white stripes were then collected and taken to the campfire to be placed respectfully piece-by-piece into the fire.
A script was read by scouts and leaders to memorialize the lives of the flags. The script began by explaining the significance of the elements that make up the flag. For example, the field of blue remains intact symbolizing that the union of states is not to be divided and the red stripes remind us of the lifeblood of those who died for our freedoms. Click here for an example of scripts.
Then, important historical events witnessed by the flag were recalled while pieces of the flag were placed into the fire. Some of the historic events were recalled through phrases such as:
Some were recalled through the mention of battles such as Valley Forge, the Civil War, Pearl Harbor, Iwo Jima, Guadalcanal, Normandy, Berlin, Korea, Vietnam and Desert Storm. Other events mentioned included conditions that led to Amendments to the Constitution and tragedies such as the Space Shuttle Challenger disaster, the Oklahoma City bombing, and September 11, 2001.
After each event or phrase was read and recalled, another piece of flag was placed respectfully in the fire and we discussed the extraordinary events and people involved in the events.
This experience of caring for these flags was patriotic and significant for scouts and adults alike. Taking our time and giving our attention to these flags was a dignified, meaningful way to retire these flags. None of us who participated in the ceremony that night will look at an American Flag the same way again.
What Stories Will Your Trademarks Tell?
Whether as trivial as a Polar Bear patch or as historical as the American Flag, every symbol has stories to tell. When those stories are told, relationships with the symbols are formed or strengthened.
Businesses sometimes forget that trademarks are about relationships with consumers, not simply for profitability. They have put the cart before the horse. Businesses need to remember that trademarks that enjoy strong consumer relations and loyalty not only tell better stories, but they will render strong financial performances.
Interestingly, Proctor & Gamble recently announced it is shedding 90 to 100 of its product brands. See, P&G to Shed More Than Half Its Brands. Apparently, P&G began overbuilding its brands 10-15 years ago and is now disposing of most of them to focus on its core brands. See, Too Little, Too Late? The Challenge of Fixing P&G. In other words, P&G has spent many years investing in disposable trademarks and its financial performance is poor. It is amazing to me that the financial analysts do not see the correlation.
If businesses want genuine, lasting relationships with consumers (and the financial rewards that come from such relationships!), their trademarks need to be genuine and lasting, not disposable. Had P&G invested the time and resources into its core brands rather than disposable brands years ago, its trademarks would tell a different, much more productive story.
Michael J. Powell is an intellectual property lawyer and registered mediator. With 23 years’ experience, Mr. Powell helps clients navigate the complexities and costs of intellectual property in transactions and litigation. For his work in intellectual property, Mr. Powell has been recognized by Chambers USA: America’s Leading Lawyers In Business, Best Lawyers in America, Georgia Super Lawyers and Georgia Legal Elite for many years. To learn more, schedule a mediation, or reach Mr. Powell, click NavigatingIP.com.
In this week’s news, CNN Money reported that 6 out of 10 Americans believe the American Dream is out of reach, if not impossible. See, the article here. Young adults ages 18 to 34 were reportedly most pessimistic. Apparently, the majority of people feel the dream, whatever it is, is unachievable because many families now need two income-earners to compete with the prior generation where many families lived on a single income. Other reasons given for the pessimism included: savings rates are low, unemployment rates are high, rising college costs outpace inflation, and student loan debt is “exploding”.
Sadly, the article omits discussing what, if anything, might bring the American Dream back within reach. There is no mention of hard work, dedication, perseverance, increased productivity or anything else the people polled thought would make dreams achievable.
So how did prior generations possibly achieve the American Dream? Were they more productive? More frugal? Perhaps they defined the American Dream differently. How can we give them or the next generation more hope, encouragement and belief for their futures?
Summertime Productivity – One Bed at a Time!
Summertime in our house means transitioning our elementary and middle school aged children to a new routine of healthy fun and some work. The daily routine strives for exercise, eating well, some contribution to the family, and doing something creative – not just playing video games or watching TV. Most evenings, each of our kids is asked “what contributions have you made today?” The kids’ answers vary greatly, but usually include performing some household chores, reading books, helping someone, creating something (artwork, lego toys, model rockets, etc.). You get the idea. Kids’ productivity and creativity needs to be encouraged and rewarded. Otherwise, natural human tendencies will lead to inactivity and complacency, particularly in the heat of summer.
Last month, our summertime transition was emboldened by a commencement speech given at the University of Texas at Austin by the top Navy SEAL, Naval Adm. William H. McRaven, ninth commander of U.S. Special Operations Command. An important part of his message was “If you want to change the world, start off by making your bed.” Of course, my wife and I loved this and played it for the kids.
McRaven explained,
If you make your bed every morning you will have accomplished the first task of the day. It will give you a small sense of pride and it will encourage you to do another task and another and another.
By the end of the day, that one task completed will have turned into many tasks completed. Making your bed will also reinforce the fact that little things in life matter.
If you can’t do the little things right, you will never do the big things right.
And, if by chance you have a miserable day, you will come home to a bed that is made—that you made—and a made bed gives you encouragement that tomorrow will be better.
Click here to link to a video and transcript of the speech.
It’s true. Work, even small tasks, can make people feel more productive and have a better outlook as to their environment and the future. However, neither adults nor kids will expend energy if they don’t believe they’ll see the benefits of it.
Intellectual Property Rights Promote Productivity and The American Dream
A cornerstone of the U.S. economy is that full-on, head-to-head competition is encouraged and rewarded. Intellectual property often keeps the playing field level for such heavy competition. The Global Intellectual Property Center of the U.S. Chamber of Commerce (GIPC) refers to the U.S. IP system as the “bread and butter” of our economy with some “40 million American IP-intensive jobs driving 30% of U.S. GDP and 60% of exports”. The GIPC says the U.S. IP System “…could well serve other economies and systems seeking a slice of the American Dream.”
For many, intellectual property rights are integral to keeping the American Dream alive and within reach notwithstanding such competition. For example,
The idea that productivity and IP rights go hand-in-hand to realize the American Dream is not new. In fact, it’s as old as the country’s founding fathers and the American Dream! See, U.S. Constitution, Article I, Section 8 (where Congress is empowered “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”).
Like summertime routines for kids or basic Navy SEAL training, businesses should be taking proactive steps to protect and enforce their intellectual property rights. By doing so, they will not only compete more effectively, but also promote the economy and the progress of science and useful arts, and make the American Dream more attainable perhaps even for those who no longer belief they can reach it.
Michael J. Powell is an intellectual property lawyer and mediator. With 23 years’ experience, Mr. Powell founded Powell IP Law, LLC in 2013 as a better platform to help clients navigate the complexities and costs of intellectual property in transactions and litigation. For his work in intellectual property, Mr. Powell has been recognized by Chambers USA: America’s Leading Lawyers In Business, Best Lawyers in America, Georgia Super Lawyers and Georgia Legal Elite for many years. To learn more or reach Mr. Powell, click NavigatingIP.com.
http://www.worldipreview.com/news/marvell-faces-record-patent-damages
http://www.worldipreview.com/news/google-lends-hand-in-npe-fight
http://www.worldipreview.com/news/congressmen-target-npes-with-loser-pays-bill
http://www.barnesandnoble.com/w/nutrition-ed7-sizer/1110146593
http://www.bna.com/cyberlaw-predictions-privacy-b17179871752/
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202518990840&slreturn=1 (This is subscription only.)
Here’s a link: http://www.dailyreportonline.com/PubArticleDRO.jsp?id=1202629901163&thepage=1
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In life, certainty comes in the form of death and taxes. In intellectual property law, it comes in the form of change.
The quick pace of technology and the complexities of the digital world are forcing changes in all areas of intellectual property. “IP is somewhat of a moving target,” says attorney Mike Powell of Powell IP Law. “I think there is more uncertainty and really more uncertainty in acquiring and enforcing patents and trademarks, in particular, than we’ve seen in many years,” he says.
On the horizon for the practice is a shift from litigating to mediation and arbitration. “With the economy taking its toll on the industry, we’re seeing more people say, ‘You know, let’s take control of our dispute,’ and I think they’re going to do that through mediation and arbitration,” Powell says.
Legal models are changing, too. “Legal departments that traditionally would hire outside counsel to handle litigation matters by the hour are now able to tap into networks of lawyers who are great litigators who are handling these cases on a contingency,” he says. “We’re seeing more of that than we’ve ever seen in the past.”
To gain some insight into upcoming trends and issues in the different areas of intellectual property, the Daily Report turned to a few well known—and not so well known—names in Georgia’s IP community.
An upward trend in the number of patent filings will continue in 2014, says patent attorney Bill Needle. The America Invents Act (AIA), which changed the filing system from a “first to invent” to a “first inventor to file” system, is partially responsible for the increase, but not totally.
“While AIA has certainly helped to spur filings, perhaps more rapidly than it would have been under the old system,” says Needle, “when you look back over a 10-year period you can see that there has been a tremendous trajectory upward, even under the old system of filing.”
With more patents come more litigation. But an increase in patents is not the only reason for more litigation, says Needle, a partner with Ballard Spahr. “I just think that more attention is being paid to trying to preserve your position, your little niche in whatever business you’re in, because of so much competition.” Needle says with the increase in patent litigation, settlements may happen more often and earlier than usual in order to keep costs down.
The high-profile Apple lawsuit against Samsung, which involves numerous patent issues involving smartphones and tablet computers, has brought design patents to the forefront.
“The idea that you can get a patent for how it [a product] works as well as what it looks like has been an awakening,” says Needle. “You will now see more design patent activity.”
Needle says design patents will also reach into the very “sexy area” of fashion design. “Design patents are powerful,” he says. “They are cheaper, they are quicker to issue from the patent office, and they can be just as effective as the old-fashioned utility patent applications.”
University of Georgia law professor Joseph Miller cites the U.S. Supreme Court’s ruling in spring 2013 that dealt with DNA patents as a case that will have implications in the upcoming year. The justices unanimously ruled that human genes can’t be patented, but synthetically produced genetic material can.
“The lower courts are continuing to have real trouble figuring out how to apply the Supreme Court’s standards for when something is too abstract to be patentable,” say Miller. “I think that issue is an important one and there will continue to be significant developments.”
Expect lawmakers to address lawsuits by nonpracticing entities (NPEs) or “patent trolls,” investors who buy up a patent portfolio to obtain licensing fees, says Miller. “Congress is actively considering further changes to patent law that directly responds to this trolling problem,” he adds. Congress has introduced several bills in recent months to rein in the troll activity.
Globalization has changed traditional territorial limits on intellectual property, and extraterritoriality patent law is going to get the Supreme Court’s attention, says Emory associate dean and law professor Tim Holbrook. He says the justices “have been taking that issue up in nonpatent issues so that dynamic of U.S. law applying to activity abroad is on their radar.”
Holbrook says there also will be some Supreme Court activity with software inventions. “Developing software is not nearly as cost intensive as developing a new drug, so I think just the sheer number of them is a problem.”
Not only is there an increase in trademark litigation but also the venues for litigation are on the rise, according to trademark attorney Bill Brewster.
“California and New York represent a substantial portion of the trademark litigation, but it feels as if more cases are getting filed in different venues,” Brewster says. “People are choosing different jurisdictions for a whole range of reasons, including the fact that they may be doing some forum shopping for law that they think is particularly favorable.”
Brewster, a partner with Kilpatrick Townsend & Stockton, also foresees more activity in product configuration. “People are being more creative about approaches to protect what they think is an important part of the brand,” he says. “They are thinking about [protection] earlier.”
Historically, trademark cases have involved only injunctions, but Brewster says he is beginning to see more trademark cases that involve monetary relief and damages. “People are pushing cases harder,” he explains. “People just aren’t as satisfied with an injunction.”
The issuance of new generic top-level domain names, or gTLDs, will be of particular interest for practitioners, says attorney Mike Hobbs, a partner at Troutman Sanders. “Right now there are 22 generic top-level domain names,” he says. Common gTLD names are .com, .net and .edu.
Hobbs says the Internet Corporation for Assigned Names and Numbers (ICANN) put out a proposal for applications for entities and companies that would service new gTLDs, and it has 1,400 new gTLD names pending.
“If you think about all the domain infringements and cybersquatting and trademark infringements that go on today with 22, the concern is if you have 1,400, it’s going to be crazy,” says Hobbs. “If you’re a brand owner, what are you going to do about all of these new domain names that are going to be coming on line?”
Hobbs says social media is an area that will continue to create challenges in trademark. “As social media expands,” he says, “the trademark issues continue to expand with it.”
The ongoing conflict between copyright and new technology will pick up steam, says Kilpatrick associate Andrew Pequignot. “Copyright law has always been strained by introductions of new distribution methods and devices that facilitate copying, but I think it’s fair to say that the pace at which these changes are taking place are probably greater than ever before,” he says.
Pequignot predicts there will be some changes in the law, pointing to the Register of Copyrights’ pronouncement this year that it’s time for the “next great copyright act.”
“The Internet challenges traditional concepts of copyright, which was really developed for a physical world rather than a digital world,” says Pequignot.
According to Pequignot, another issue is cyberlockers or third-party online services that provide file storing and file sharing services.
“If you’ve got music that you’re storing in a cloud, what are the legal implications of that? ” asks Pequignot. “You have companies designing what really are inefficient systems to try and fit within existing law. At some point you are going to see more of a push to tackle these issues in some way.”
University of Illinois law professor Paul Heald points to another area to watch in copyright law at the Library of Congress. The Librarian of Congress reviews copyright laws every three years and has the authority to create exceptions.
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