Mobile – Page 2 – LegalBytes

February 14, 2013

A New Twist to Chubby Checker – Oh No, Not an App for That!

Chubby Checker, whose real name is Ernest Evans, is suing Hewlett Packard for trademark infringement. Chubby Checker, an iconic music entertainer, rose to fame when his song “The Twist” first reached No. 1 on the charts in 1960 and his appearances on the “Ed Sullivan Show” and “American Bandstand” helped spawn a national, if not international, dance frenzy. His 2008 song “Knock Down the Walls” reached the top of the dance charts and sparked a brief comeback for the music legend.

Ernest Evans Corporation, one of Mr. Checker’s companies, was originally granted trademark rights for the use of his name in connection with musical performances. Later, The Last Twist Inc., another of his companies, was granted trademark rights for “Chubby Checker’s” in connection with food products, based on the release of a line of snack foods.

The mobile “app” named “The Chubby Checker” – no, we couldn’t possibly make this up – ostensibly enabled users who downloaded it to calculate the size of a male penis based on the individual’s shoe size. The development shop named Magic Apps, now non-existent, had touted the international appeal of the app, noting “The Chubby Checker” allows calculations based on U.S., UK and European shoe sizes.

Lawyers for Mr. Checker had sent HP a cease-and-desist letter last September and apparently the app was removed from all HP or Palm-hosted websites later that month. In the lawsuit filed in the U.S. District Court for the Southern District of Florida, lawyers for Mr. Checker, now 71 years old, claim that “irreparable damage and harm” has been done to the entertainer’s name and reputation, are seeking an injunction, and are asserting claims of millions of dollars in damages arising from “The Chubby Checker” app that Hewlett Packard Co. made available on Palm mobile devices starting in 2006. You may recall that HP acquired Palm in 2010, and a year later opted to shutter the production of Palm hardware, although it continued to provide technical support to existing Palm users.

The suit alleges that purchasers of the app, as well as anyone simply browsing the webpage, had been misled into believing that Chubby Checker had endorsed the app, and that the use of his name would confuse users who might reasonably conclude the singer had some association with the app bearing his name.

The lawsuit alleges that the defendants made millions of dollars exploiting the name of one of the greatest musical entertainers of our time, and claims the “Defendants’ use of the name ‘Chubby Checker’ in its app is likely to associate the plaintiffs’ marks with the obscene, sexual connotation and images evoked by defendants’ app ‘The Chubby Checker.’” You can read the filing in its entirety right here at Evans, et al. v. Hewlett Packard Company, et al., Case 2:13-cv-14066-JEM.

The Advertising, Technology & Media Law Group at Rimon has lawyers with decades of experience in working with advertisers and agencies, marketing and promotional companies, online, mobile, and traditional, handling matters involving celebrity endorsements – good, bad and sometimes ugly. Let us know if you need us. Call me, Joe Rosenbaum, or any of the Rimon lawyers with whom you regularly work. We are happy to help.

January 18, 2013

Mobile Money, Mobile Risk – The Future of ePayment Systems

Earlier this week, the editorial staff of the UK-based publication e-Finance & Payments Law & Policy, interviewed Joseph I. Rosenbaum, New York-based partner and Chair of Rimon’s global Advertising Technology & Media law practice, in connection with its cover story for the January 2013 issue. The stimulus for the initial story was the release late last year of a report by the U.S. Federal Deposit Insurance Company (FDIC) regarding the risks attendant to the growth and evolution of the mobile payment industry, and the use of mobile contactless payment technology by consumers and merchants in routine purchase transactions (e.g., NFC, Bluetooth, RFID, SMS, Wi-Fi, and WAP enabled devices generally.)

While the cover story is still in the process of being edited for publication, the editorial staff felt that publishing the full interview separately was itself newsworthy. So follow this link and you can read the full text of the e-Finance & Payments Law & Policy interview with Joseph I. Rosenbaum, partner at Rimon LLP.

You can also read the FDIC report, issued in its Supervisory Insights – Winter 2012 release, right here: Mobile Payments: An Evolving Landscape.

Of course, if you need help or more information, contact Joseph I. Rosenbaum (joseph.rosenbaum@rimonlaw.com), who also leads the ATM Mobile Marketing initiative, or feel free to call upon any of the Rimon lawyers with whom you regularly work. We are happy to help.

December 7, 2012

Airlines May be Mobile But Delta Apps Irk California Regulators

In a civil action filed in California (People v. Delta Air Lines Inc., California Superior Court, San Francisco, 12-526741), the California State Attorney General’s office alleges that Delta Air Lines was distributing a mobile application without a privacy policy, in violation of the California Online Privacy Protection Act of 2003 (COPPA), which became effective July 1, 2004. The California statute provides a penalty of up to $2,500 for every violation.

Among other things, the Delta ‘app’ allows customers to check in, and display and make reservations; and, according to the lawsuit, Delta has been allowing customers to download and use the ‘Fly Delta’ app without a privacy policy, since at least 2010.

Of course, Delta is not the only company with user-friendly mobile apps for on-the-go busy travelers, and I’m guessing that company lawyers are now scrambling to determine if their apps are in compliance and whether changes need to be made and, just as importantly, how to make those changes to ensure compliance with the law and still maintain the customer friendliness mobile users are accustomed to and demand.

Our Advertising, Technology & Media law practice can help you navigate the challenges of compliance – preventive law as well as representing clients when the regulators come calling . . . and we have a group dedicated to legal support when your needs, defensive or as a defendant, turn to privacy, data protection and identity theft. So if you need help or more information, contact me, Joseph I. Rosenbaum (joseph.rosenbaum@rimonlaw.com), or any of the Rimon lawyers with whom you regularly work.

May 23, 2012

IAPP Privacy Presentation – Is the Wizard of Oz Still Behind the Curtain?

On May 10, 2012, I had the privilege of making a presentation at the IAPP Canada Privacy Symposium 2012. The title of my presentation was "Social and Mobile and Clouds, Oh My!" and it addressed some of the emerging issues in privacy, data protection and surveillance that arise as a result of globalizing technology and the convergence of social media, mobile marketing and cloud computing.

As part of that presentation (and as I have started to do for some time now in other presentations), I raised the issue of how lawyers, the law, legislators and regulators often use words to describe activities – words rooted in tradition or precedent – that are no longer applicable to the activity in today’s world. "Privacy" is such a word, although "not applicable" perhaps is too harsh. Obviously the word has significant applicability in a wide variety of situations. But "invasion of privacy" has become a knee-jerk reaction to virtually every information-gathering activity, even information readily and publicly available and, in some cases, posted, disclosed or distributed by the very individual whose privacy is alleged to have been "invaded."

Please feel free to download a PDF of my presentation, "Social and Mobile and Clouds, Oh My!" [PDF] (Note: Embedded video file sizes are too large to include), and let’s start a conversation about how we use words and how they wind up in laws and regulations. Lawyers work with words. Use them artfully and they provide powerful structures within which society, commerce and all forms of human endeavor function. Use them improperly and they cause confusion, uncertainty, inconsistency and inherently inequitable outcomes.

Seems like I am not the only one to point this out. Take a look at the insightful comments by John Montgomery, COO of GroupM Interaction, North America, as reported in a MediaPost RAW posting on Social Media entitled: If Marketing Terms Could Kill.

Kudos John. I’m with you. Let’s get it right.

FYI, Rimon has teams of lawyers who have experience and follow developments in privacy and data protection, information security and identity theft. If you want to know more, if you need counsel or need help navigating, or if you require legal representation in this or any other area, feel free to call me, Joseph I. ("Joe") Rosenbaum, or any of the Rimon lawyers with whom you regularly work.

May 7, 2012

Krakatoa: East of Java; Google West of Fair Use

Some of you may remember the 1969 disaster film, "Krakatoa: East of Java" (which, coincidentally ties nicely to a recent Useless But Compelling Fact topic). Well today, Legal Bytes is happy to alert you to the results of jury deliberations – yet another copyright law disaster – just unfolding out West (West Coast of the United States, that is). Just hours ago (and providing more evidence that confusion reigns and continues to increase under existing copyright law), the jury has rendered its decision in the copyright phase of yet another intellectual property trial relevant to the online and mobile world. As you may recall, just last month we reported another copyright flip-flop winding its way through the courts in our post entitled, Appeals Court Vacates Summary Judgment in Viacom v. YouTube.

Today, a jury in California, deliberating in a case brought by Oracle against Google and alleging that Google infringed Oracle’s Java copyrights, concluded that Google did use the Java interfaces, but couldn’t reach any conclusion if that was protected use under the copyright "fair use" exception ("fair use" is a defense to copyright infringement). The jury did find separately that Google infringed some of the Java code and used it in developing the mobile phone platform, Android. However, before Oracle celebrates prematurely, Judge William Alsup noted that because only a minimal amount of code was actually used, Oracle’s request for $1 billion in damages or some share of Google’s profits was essentially ridiculous, and that only statutory damages, ostensibly a relatively nominal amount, would likely be applicable.

Indeed, these cases bolster a growing argument that as digital technology and innovation move forward, current copyright law is either inadequate or irrelevant, or both. Legal Bytes will continue to monitor developments in this evolving and convoluted intellectual property dilemma. I encourage you to take a look at an opinion piece I wrote separately entitled, A Contrarian’s View of Copyright: Much Ado About Nothing. But that’s just my opinion; the jury’s verdict is fact!

If you would like further information or need help making sense of the legal issues arising in our digital online and mobile world, feel free to contact me, Joe Rosenbaum, or the Rimon attorney with whom you regularly work.

February 23, 2012

White House Releases Privacy Report and Calls For a Consumer Bill of Rights

Earlier today, Secretary of Commerce John Bryson and Federal Trade Commission Chairman John Liebowitz outlined the Obama administration’s strategy for ensuring “consumers’ trust in the technologies and companies that drive the digital economy.” On the heels of their announcement, and although it is dated January 2012, the Department of Commerce released a long-awaited report entitled “Consumer Data Privacy in a Networked World, A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy,” the administration’s roadmap for privacy legislation and regulation in the years ahead.

The announcement and privacy blueprint envisions a comprehensive and integrated framework for data protection, rather than the current sector-patchwork-quilt approach, and is comprised of four key pillars: (1) a consumer privacy bill of rights; (2) a multi-stakeholder process and approach dealing with how such a bill of rights would apply in a business context; (3) more effective enforcement; and (4) greater commitment to harmonization and cooperation in the international community.

The Report outlines the seven principles of its proposed Consumer Privacy Bill of Rights and, although calling for legislation and regulation to codify and memorialize these rights, also sets out consumer privacy standards that companies are asked to immediately and voluntarily adopt in a cooperative public-private partnership. These seven principles are:

Individual Control Through Choice
Greater Transparency
Respect for Context
Secure Handling
Access & Correction Rights
Focused Collection
Accountability

The Report notes that a company’s adherence to the voluntary codes will be viewed favorably by the FTC in any investigation or enforcement action for unfair and deceptive trade practices. By implication, a company that does not adopt and follow these principles might be used as evidence of a violation of Section 5 of the FTC Act, even if federal legislation is not passed on the subject. The FTC is expected to soon release its Final Staff Report on Consumer Privacy that will be consistent with the Obama administration’s proposed Framework Report. The report reinforces the administration’s commitment to international harmonization, and also touches upon the role state attorneys general in the United States can play. While we are still reviewing the details – and more will likely be forthcoming from the administration in the weeks and months ahead – Legal Bytes will keep you on top of these developments as they arise.

You can read the entire report right here: Consumer Data Privacy in a Networked World, A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy.

These are developments that affect all businesses, domestic and multi-national, global and local, consumers and regulators. The complexity and challenges of compliance should not be underestimated, nor should the administration’s commitment to follow the roadmap outlined. Rimon has teams of lawyers who have experience and follow developments in privacy and data protection, from prevention and policy to compliance and implementation. If you want to know more, need counsel, need help navigating, or if you require legal representation in this or any other area, feel free to call me, Joseph I. (“Joe”) Rosenbaum, or any of the Rimon lawyers with whom you regularly work.

October 25, 2011

MMA Releases Mobile App Privacy Guidelines – Appy Days Are Here Again

A few days ago (October 17), the Mobile Marketing Association released its MMA Mobile Application Privacy Policy, which the MMA asserts is the first industry guideline to deal with data protection and privacy specifically related to mobile and wireless applications. The guideline being made available for comment is slated to be finalized sometime after November 18, 2011, when the MMA’s comment period is scheduled to close. The press release notes that there are currently more than 425,000 iPhone/iPad apps available from Apple’s App Store, and more than 200,000 available for Android.

The document is intended to deal with some of the basic privacy principles and text that developers should consider incorporating into mobile apps to let consumers know how their data is collected and used, as well as information regarding confidentiality and the security of information that becomes available when a consumer installs and uses a mobile app. Obviously, legal disclaimers and disclosures and issues related to privacy and data protection are quite jurisdiction-specific, and compliance will always require consultation with legal counsel to be sure mobile, and all other online and other applications and processes, conform to the legal requirements of each jurisdiction that applies to consumers for that application or process.

Rimon’s offices around the world are open, coordinating with our Advertising Technology & Media law practice group, ensuring that lawyers knowledgeable in data protection and privacy, as well as in mobile technology and marketing, are available to help you. As always, if you want to know more about how lawyers who understand can help your business, feel free to contact me, Joe Rosenbaum, or any of the Rimon attorneys with whom you regularly work.

August 12, 2011

Who’s Right on Privacy? Rosenbaum on Legal Bisnow.

You’ll have to read the story to find out why Rimon’s own Joseph I. (“Joe”) Rosenbaum thinks that “Privacy is the elephant-sized rubber band ball in the room.” Joe was recently interviewed by Jeff Gamsey, managing editor of Legal Bisnow, and is featured in yesterday’s lead story on Legal Bisnow entitled, “Who’s Right on Privacy?”

June 6, 2011

Welcome to Disco via SMS – Google Finds Itself Dancing in Court

This post was written by Judith L. Harris, with assistance from Rimon Summer Interns James Duchesne and Linda Shim.

A new trend is quickly taking hold. In recent months, a sizeable number of class action lawsuits have been filed involving unsolicited text messages. A messaging system called “Short Message Service,” better known as “SMS“, allows individuals to receive text messages on mobile phones. Consumers unhappy with bulk, unsolicited SMS marketing messages are filing suit under the Telephone Consumer Protection Act 47 U.S.C. § 227 (“TCPA”) in alarming numbers. You can read a summary of the TCPA Rules [PDF], but to recap for these purposes, the TCPA prohibits any call from an automatic telephone dialing system to any mobile telephone service or any service for which the called party is charged. Since most mobile phone service plans charge on a message received/sent basis, the fact that SMS is subject to the TCPA’s prohibitions (just like land line phone calls), has caught many by surprise – including many of the most sophisticated operators in the mobile marketing space.

Lusskin v. Google [PDF] is one of the latest of these cases to be filed (Federal Court in California) and takes aim at Disco, launched by Google just this past March. In Lusskin, the plaintiffs are claiming that the Disco app gives Google the ability to “harvest all phone numbers” added by consumers so that Google “can independently send its own text message advertisements” promoting the Disco application. Individuals can use Disco to input names and mobile phone numbers (into groups); however, no permission or consent is required from someone whose name and number are added! When the group starts, Disco sends a message to members welcoming them, instructing them how the service works and how they can opt out. Once the groups are formed, messages can be sent from a single source, for a single charge, to all group members. Each member of the group receives the message and each can respond and, you guessed it, each response is sent to every other group member – an SMS mobile “chat room.”

Unbeknownst to Mr. Lusskin, he was added to one of these Disco groups and his mobile phone notified him of a text message from an unfamiliar number – the “welcome” message from Disco. Unfortunately, the “chat room” quickly turned into an angry and confused barrage of messages from the other unsuspecting group members responding to Disco’s first, unsolicited message. Messages poured in so rapidly and voluminously that Mr. Lusskin claims he was unable to use his mobile phone until the alleged 105+ SMS messages had all been received. Mr. Lusskin has filed as a class action, seeking relief for all persons who received the unsolicited initial welcoming text message from the Disco service. Mr. Lusskin also wants to include, as plaintiffs in the action, anyone who opted-out of the Disco service within 24 hours of receiving an unsolicited welcoming text message, or who was a member of a Disco group that was closed within 24 hours of its creation.

With a potential penalty of $500 in damages for each TCPA violation – each unsolicited message (and triple that number if a plaintiff can show the violation was willful or knowing) – no wonder consumers are seeking to use the TCPA to get some attention, or rather seeking to avoid getting unsolicited attention.

Are you in the mobile marketing arena? Need to understand the rules and regulations surrounding the medium? If you are an advertiser, marketer or sponsor involved in promotions, the message (content), we can help you keep abreast of Lusskin and its brethren as they seek to carve out a place under TCPA regulation. If you need help, contact Judith L. Harris, or me, Joe Rosenbaum, or any of the Rimon attorneys with whom you regularly work.