The Candy Man Cometh: Candy Crush Developer King Crushes Sweet Dreams in Trademark Disputes

United States Patent and Trademark Office (USPTO) records indicate that King, also known as Digital Entertainment PLC, publisher of the popular game Candy Crush Saga, applied to register a trademark for the word “candy” in February, 2013.  (US Trademark Application Serial Number 85842584.)  PCMag reported that King had already trademarked “candy” in the EU where, according to King’s spokesperson, the company’s intellectual property is constantly being infringed upon.  The firm sought the same security in the US market, leading critics to pounce weeks before March 26, when, according to Forbes, the company tanked in its market debut.

The application to register the “candy” trademark was approved on January 15, 2014.  One intellectual property commentator told the San Jose Mercury News that King’s move was “blatantly anti-competitive and not what trademark law is about”.  Forbes contributor Eric Kain wrote “No corporation should have legal rights to any word I can use in Scrabble—words like ‘candy’ or ‘saga’ for instance.” Continue reading

ICYMI: Privacy Laws Effective Jan 1, 2014

In case you missed it: We recently wrote here that over two dozen state privacy laws were passed in 2013.  While little to nothing is happening in Congress – at least in terms of actual privacy legislation – state legislatures continue to fervently address the issue of privacy.  Many new state laws became effective January 1st of this year.  Here is just a sampling of those directly impacting both individuals’ privacy and technology. Continue reading

GitHub and Developers: The perils of licensing after code release.

The licensing practices of open source software developers have often centered around copyleft or permissive licenses that provide free public access to a project’s source code with only a few restrictions on how the code may be used. These licenses often require that any derivative work created from the source code must also be licensed under similar terms.  Websites, GitHub being a prominent example, allow developers to post their code so that others can download the master code, make changes to it and push those changes back up to the master copy.  Sites like these are described as “distributed reversion control repositories” (DRCRs).  With advancements in DRCRs, some trends show that today’s open source developers do not take into account licensing considerations until well after a project has been created and made available to the public.  Labeled the POSS (Post Open Source Software) approach in a 2012 tweet by James Governor of RedMonk, many open-source developers are now skipping past licensing and governance considerations regarding code, and simply posting their work to sites like GitHub.  This trend may offer more risks than opportunities regarding the ability of the code to be adopted into the OS community, and may expose code developers to greater liability regarding non-disclaimer of warranties.

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Employee Noncompetes: Enforceable if Employee Quits After 3 Months? Maybe Not.

Seems that in Illinois a noncompete covenant in an employment offer letter is unenforceable if the only consideration given the employee is the promise of continued employment.

A case in Illinois involving an individual who sued his former employer seeking a ruling that his noncompete was unenforceable illustrates a potential pitfall for employers trying to prevent employees from leaving to work for competitors.  Employers in many states routinely make offers of employment through offer letters, containing compensation terms, job duties and, sometimes, noncompete restrictions that apply during and after employment.  Sometimes – but not always – the noncompete is coupled with a pre-agreed severance payment negotiated at the start of employment that would kick in upon any employment termination.

The case, Fifield v. Premier Dealer Services, Inc., was issued in June 2013 and the report can be found here.  The question raised in the Illinois case was whether the absence of such a pre-agreed severance payment made the noncompete unenforceable.  The employer argued that the offer of employment itself was adequate consideration in exchange for the employee’s agreement to not work for a competitor.  The First District of the Illinois Appellate Court said not so, and the Illinois Supreme Court declined to review the appeal. Continue reading

Threading the needle: Apple Fined for allowing in-app purchase transactions without obtaining account-holder consent.

While Apple Inc. has been at the leading edge of the app revolution, it is also out front in setting the guidelines for app purchases. According to the FTC last week, it crossed that line to the tune of $32.5M. That’s the amount that Apple agreed to refund to settle an FTC complaint that the company charged for children’s in-app purchases without parental consent. At issue was the practice by which Apple allowed iPhone users unlimited in-app purchases for 15 minutes after providing initial consent for a single purchase.

Apple Inc. has been instrumental in solidifying the ubiquity and prominence of applications or “apps” in everyday life. With the release of the groundbreaking iPhone in 2007 and its corresponding App Store in 2008, users became familiar with the idea of using and purchasing apps for specific uses. From news feeds and video players, to single and multi-player games, apps came to represent a download that, with the simple tap of the thumb, would add another tool, resource or game to a device. Continue reading

Republishing Defamatory Content: Hyperlinking is OK?

If someone publishes something defamatory on the internet, and I later re-publish that statement, generally I can be held liable for defamation equally as the original publisher of the defamatory statement.  (See for example,

So, for example, if I publish on my blog an unvarnished, clearly libelous statement – oh, I don’t know, say I write something like “Sheldon Adelson (the casino magnate and Republican party contributor) runs a prostitution ring in Macau” – and then my friend (let’s call him “Phil”) repeats that statement on his blog, then typically both Phil and I can be liable for defamation.  Continue reading

Got WI-FI?: How Brick and Mortar Retailers Track Their Shoppers

Euclid Analytics is one of several companies that recently began assisting brick and mortar retailers in tracking consumer behavior, via their smartphones, as they enter, exit, and move around stores.  It may be easy to label this technology, mobile location analysis, as “creepy”, but it is by no means illegal (at least not yet).  Some may even find having a coupon for jelly pop up on your iPhone just a moment after you’ve tossed peanut butter into your cart very convenient- MIT Technology Review proposed this hypothetical scenario.

Just a few weeks ago we wrote about how online retailers monitor consumer behavior in order to customize their offerings to better fit both the consumers’ and the business’ needs.  Brick and mortar retailers argue that they’re simply catching up with online retailers’ use of cookies and target marketing. Continue reading

Mobile App Privacy Policies Should Not Keep Users in the Dark

Privacy policies have long been the domain of the desktop web experience. For anyone motivated enough to seek them out, they are commonly found in a utility bar at the top of a web page, or buried somewhere in the site’s footer. The policy typically governs what the site owner does with users’ information – from personal information actively submitted through a form, to broader information passively attained such as browser type or device, and how the site uses cookies and similar technologies to track users’ online activity.

With the explosion of mobile devices, app developers face a much broader scope of information that privacy policies must address.  With the treasure trove of information available via users’ mobile devices, developers must take great pains to detail what information is gathered and how that information is used.  Privacy policies not only inform a user-base and foster good-will, but also ensure that the application does not abuse its access to information and run afoul of the law. Continue reading

#PrivacyProblems: States Address Privacy and Data Security Concerns

Social issues such as jobs, healthcare and education take priority for citizens over privacy issues, the public’s concern for digital privacy has grown and looms large.  In the absence of Congressional action in favor of consumer privacy, state legislators have begun to take matters into their own hands.

The New York Times’ Somini Sengupta reports that in 2013 alone more than 10 states passed over two dozen state privacy laws.  Sengupta quotes John Pezold from Georgia’s House of Representatives: ‘”’[C]onsumers [are] becoming increasingly wary that their lives are going to be no longer their own… We have got to protect that.”’ Continue reading

Who Owns Twitter Followers?

Seriously, is this a real question?  Isn’t this like asking who owns rights to your friends?   Or … who owns rights to Grateful Dead fans?  And doesn’t the very question present its own obvious answer?  I mean, isn’t it a bizarre question? How can you “own” your fans?

Bizarre, perhaps, but data companies own all sorts of lists of people, so isn’t this just the same thing?  To be clear, data companies never really argue that competitors cannot make their own competing lists and sublists of Democratic voters or whatever.  The companies would just argue that others cannot copy their lists of such people.

Or is it more like last year’s Craigslist fight with Padmapper over Craigslist’s claimed exclusive rights to use Craigslist’s apartment listings: Can anyone “own” apartment listings?  See my previous discussion of this case, here. Continue reading