Register Now for Marcus Stephen Harris LLC Software Licensing Seminar Series - Revenue Recognition

February 4, 2010 – 4:17 pm

Negotiating software licenses is a complicated process that takes knowledge and skill. Revenue-recognition problems are arguably the leading cause of restatements among software companies. The consequences of getting it wrong can be severe. Some of the basic criteria for recognizing revenue are dependent on the structure and terms of a software agreement.

This seminar will focus on understanding revenue recognition issues and drafting and negotiating agreements so as to minimize revenue recognition issues.

 

WHO SHOULD ATTEND THIS SEMINAR?

If you are involved in the acquisition or contracting of computer software, you need to attend: CIOs • CTOs • CFOs • Contract negotiators • In house counsel • Attorneys • IT managers and directors • Contract managers • Contract administrators • Purchasing agents • Consultants

 

YOU WILL LEARN HOW TO:

• Analyze revenue recognition issues

• Learn to negotiate agreements that minimize rev/rec issues

• Avoid problematic language

• Understand Revenue recognition issues and their background

• Determine alternative ways to address customer concerns

 

Speakers:

Dave Tuttle is a global financial executive with experience in manufacturing, services, and technology companies.  He was most recently CFO of Torex Retail US, a global leader in retail software and hardware technology solutions.  He also was responsible for implementing US GAAP revenue recognition in conjunction with IFRS reporting for the London and Europe based businesses. 

Previously, Dave held several senior roles with hardware, software, and technology services companies ranging from $150 million to $2.2 billion in revenue.  He has been involved with two successful IPO’s, several debt offerings, and over 20 acquisitions.

 

Marcus Harris is an attorney that works with technology companies, software developers and users regarding software development, licensing, ownership and distribution.  Prior to starting his own practice he was Senior Corporate Counsel at SSA Global.

 

Date: Thursday February 25, 2010
Time: 11:30 - 1:30 

Location: 

llinois Technology Association/TechNexus

200 S. Wacker Drive 15th Floor Chicago, IL 60606

Lunch will be provided

Cost: $35 with online registration: http://softwarelicensingseminar.eventbrite.com/

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Oracle Sues Support Firm Over “Massive Theft.” Sound Familiar?

January 30, 2010 – 12:14 pm

On Monday January 25, Oracle filed a lawsuit in US District Court for the District of Nevada, where it claims that third party support provider Rimini Street’s business model revolves around illegally helping itself to Oracle’s support offerings.

Oracle is alleging “massive theft” of its software and support materials via illegal access to its technical support websites. Rimini Street sells enterprise software support for Oracle’s SAP, Siebel, PeopleSoft, and JD Edwards software.

Oracle  goes on to claim that Rimini by downloading “hundreds of thousands” of Oracle’s support materials at a time, is causing the databases which host Oracle’s software and support materials to freeze, thereby disrupting Oracle’s operations and impeding the availability of lawful downloads to Oracle’s other customers.

Seth Ravin is the CEO of Rimini Street and was also the co-founder of TomorrowNow, a one-time SAP subsidiary, that Oracle accused of identical practices in 2007.

Rimini said that it will “vigorously” respond to Oracle’s complaint. Ravin states that Oracle’s actions are an attempt to forestall competition and limit market choices for its software licensees.

A copy of the complaint is located here: Oracle v. Rimini.

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6 Tips for Independent Video Game Developers

January 11, 2010 – 11:18 am

1. Development: NDAs and Employment Agreements;

2. Pre-release: Identify Your Intellectual Property;

3. Pre-Release: Register Your Intellectual Property;

4. Release – Define The Permissible Use(s) Of Your Game;

5. Release – Define What People Can’t Do With Your Game;

6. Post Release – Enforce Your Intellectual Property Rights.

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No Doubt Sues Activision

November 6, 2009 – 6:17 pm

The LA Times is reporting that on November 5th NoDoubt filed suit in LA Superior Court against Activision alleging thatActivision has exceeded its contractual rights by depicting the band inActivision’s Band Hero video game singing other artist’s songs.  

No Doubt is seeking unspecified damages as wellas a preliminary and permanent injunction.

 LATimes story here.

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The Importance of Trademark Searching

October 18, 2009 – 7:11 pm

We had a brief conversation with a prospective trademark client recently. This client failed to fully comprehend the importance of trademarking.  This is relatively common in our practice, but this client’s take was a bit different.

His rationale for not needing to secure a trademark registration for his product name was that the product at issue and the associated product name were not strategically important to his company. While the name may not have been important to him, it may be important to third parties.

Here’s what we mean - if you choose a name for your product and that name is confusingly similar to the name of a third party, you could have some trouble on your hands. Before selecting a particular name for a product or service it is a good idea to know the risks associated with selecting that particular name. 

 You want to avoid the time and expense of litigation or the cost associated with rebranding by not doing your homework at the front end. One way to get a reasonably good idea of what you are getting yourself into is to conduct a trademark search.

Trademark searching is a relatively inexpensive and comprehensive way to get insight into the risks associated with moving forward with a particular trademark. A good trademark search will include common law sources, state trademark databases and the USPTO database. 

For questions regarding the trademark application process - including the benefits of conducting a trademark search feel free to contact our office and talk to one of our trademark attorneys.

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Free Software is Copyrightable; Open Source Train Rolls On

August 20, 2008 – 5:35 pm

A recent decision by the Court of Appeals for the Federal Circuit has reassured members of the open source software movement by declaring that software distributed for free is still protectable by copyright.

Open source software development thrives on continuous additions and improvements made by many different people, but attribution of preexisting code to the previous authors remains important.  Use of open source code for profit requires such attribution or at least description of any alterations made to the code.  The sharing of such information is the basis for the movement and helps perpetuate open source development.

Recently, a U.S. District Court in San Francisco had ruled that a plaintiff whose code had been taken and used for profit without attribution could only sue for breach of contract, not for copyright infringement.  The ability to sue for copyright infringement is important because it is typically easier to recover monetary damages in infringement suits (in certain instances) than those based on breach of contract.  Robert Jacobsen manages a software development company which created an application to help program computer chips used in model trains.  The group later discovered that KAM Industries was using their code in their competing product without attribution.

The decision was appealed to the Federal Circuit, which vacated the judgment of the lower court and returned the case for further proceedings.  The Federal Circuit held that “[t]raditionally, copyright owners sold their copyrighted material in exchange for money.  The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however.”

While the final decision from the district court is forthcoming, it will be consistent with the decision of the superior court, the Federal Circuit, so open source developers can rest easier knowing that the material they created remains copyrightable, and that they can use all the traditionally-available tools to defend their copyrights.

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Revamped Certification Mark is Kansas’ Latest Effort to Promote its Own

August 14, 2008 – 7:31 am

The State of Kansas is updating the stamp of approval it gives to local growers.  Now, products that have at least 75% of their ingredients from, or processing in, Kansas can apply to display the certification mark Simply Kansas.

For the past 30 years, a similar certification mark had been available: From the Land of Kansas.  In addition to the name and logo changes, the revamping includes an update to the services included in the program.

Governor Kathleen Sebelius voiced her approval of the change, announced on Monday by the Kansas Department of Commerce, saying that it would help smaller growers compete with their larger competitors.  Said Sebelius, “many…entrepreneurs don’t have the resources to promote their products on a large scale.  That’s where Simply Kansas can help, and that’s why we’re so excited about the program.”

Local news reports say that, in addition to the privilege of displaying the Simply Kansas logo, producers who qualify for the program will have access to marketing assistance and educational opportunities to help level the playing field for all Kansas growers.

—

Certification marks are often confused with traditional trademarks, but the two forms of identification in fact carry very different meanings.  Trademarks are, in short, source identifiers.  They serve to inform consumers of who produced or manufactured a given product.  Certification marks don’t serve to identify the source of the product, but rather identify the product as possessing certain characteristics which a third party (owner of the certification mark) has decided are noteworthy.  These characteristics are often quality standards, but can also relate to area of geographic origin, mode of manufacture, or even the manufacturers themselves (that they all belong to a certain union, for instance).

Imagine a Eureka vacuum cleaner which has been given the Good Housekeeping Seal of Approval.  “Eureka” (as well as any accompanying logos) is a trademark, indicating that this particular vacuum cleaner was manufactured by The Eureka Company. 

The Good Housekeeping Seal of Approval is a certification mark; the vacuum cleaner was not produced by GH, but it fulfills certain standards set by GH, and so GH has given it an official “thumbs-up” of sorts.  Of course, the owner of the product (Eureka) needs to give permission for the certification mark to be displayed with the product, but in most cases a certification mark indicates positive qualities of the product, and so an owner would be happy to show that its product had surpassed certain standards.

To register a certification mark, an organization must provide the USPTO with, among other things, a copy of the guidelines by which it will decide which products or services are deserving of the mark.

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Dell’s Attempt to Trademark “Cloud Computing” Hits a Wall

August 13, 2008 – 12:06 pm

The software giant’s attempt to trademark the term “cloud computing” has been the topic of lots of recent tech buzz.  Cloud computing refers to a type of technology whereby software is accessed remotely by users who have no control over the infrastructure which supports the software.  Both this infrastructure and the software itself can be updated, improved, and expanded upon, and the new software can be implemented immediately thanks to the Internet-based nature of the system; ”The Cloud” is a long-standing nickname for the Internet in connection with this sort of setup.

Many participating in the discussion surrounding Dell’s attempt to trademark CLOUD COMPUTING decry the attempt, claiming that the term has been in wide use (though specific meanings of the term have varied somewhat) since at least the early 2000s.  Such “genericness” of a term is grounds for a refusal to register it, because if the public has adopted a term as the sole way to describe something, it can’t be taken out of the public domain and monopolized by a single party.  At least one other who isn’t concerned by Dell’s application disagrees, claiming that the term only came to widespread use in late 2007, and  isn’t generic.  Another point of contention amongst software companies is that Dell is by no means considered a leader in cloud computing development, and so its decision to attempt to control the term’s use is, in the eyes of some, a peculiar and presumptuous move.

Dell filed the application in March of 2007, asserting a bona fide intent to use the mark CLOUD COMPUTING in connection with:

“Custom manufacture of computer hardware for use in data centers and mega-scale computing environments for others” in Class 040, and

“Design of computer hardware for use in data centers and mega-scale computing environments for others; customization of computer hardware for use in data centers and mega-scale computing environments for others; design and development of networks for use in data centers and mega-scale computing environments for others; Consulting services for data centers and mega-scale computing environments in the fields of design, selection, implementation, customization and use of computer hardware and software systems for others; Consulting services for data centers and mega-scale computing environments in the fields of design, selection, implementation, customization and use of computer hardware and software systems for others” in Class 042.

After issuing one Office Action and considering Dell’s response, the PTO published the mark for opposition on April 15, 2008.  Such publication is an opportunity for those who feel they might be damaged by the registration to file their grievances with the PTO.  No oppositions were filed, so the PTO issued a Notice of Allowance on July 8, 2008.  At that point, Dell simply needed to show that it was using the mark in commerce in connection with the services listed above.

A visit to www.dell.com/cloudcomputing suggests that Dell would be able to show use in commerce.  But on Wednesday August 6th, before any Statement of Use was filed, the PTO cancelled the Notice of Allowance and returned the application to the examination phase.  It’s unclear at this point why exactly the PTO has decided to cancel the Notice of Allowance - perhaps it is reconsidering its conclusion that the term is registerable.

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Sony BMG Settles with Louis Vuitton

August 5, 2008 – 3:47 pm

The French fashion house filed suit last year against the recording company for allowing several of its artists to display unauthorized Louis Vuitton trademarks in their music videos and on CD literature.  The matter has reportedly been settled for about $156,000. 

Fashionphile has managed to capture stills from the infringing videos.

In Britney Spears’ music video for the song “Do Somethin’” she and her friends pilot a flying pink hummer through the clouds.  At one point, we see her drumming her fingers on the car’s dashboard, which is upholstered in LV’s famous cherry blossom print.  The dashboard shot is less than one second long, but it was long enough to draw the attention and ire of Louis Vuitton’s fiercely protective intellectual property team.

More overt use of LV’s trademarks comes in Da Brat’s video, which includes a Louis Vuitton beach umbrella and beach ball.

American Idol victor Ruben Studdard had printed liner notes for his new CD on LV-mongrammed paper.

The strength of LV’s case was bolstered by the fact that LV does not in fact produce any of the products shown in the infringing materials, which exacerbates the confusion generated by the misuse of the trademark.  As part of the settlement agreement, Sony BMG agreed, of course, to stop using LV’s marks in its videos, to pull Studdard’s CD from the shelves (at least until its layout is redesigned), and to educate its various record labels about unauthorized use of LV’s trademarks.

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Nickelodeon and Other Companies Not Clowning Around With Their I.P.

July 31, 2008 – 11:23 am

It seems like just yesterday a kid’s birthday party could be put over the top by the appearance of a regular old birthday clown.  Some of the kids would be entertained, most would be petrified, and the party would be a success regardless.  These days, writes Katherine Rosman of the Wall Street Journal, the perfect birthday party is getting harder to pull off.

Disney and Nickelodeon and Marvel and other similar companies have succeeded in capturing the rapt attention of children.  Rosman quotes an author as writing that, since 1990, the number of television shows aimed at two- to five-year olds has quintupled.  The characters on these shows quickly become adored by near-maniacal throngs of children, who come to desire every possible exposure to Nemo or SpongeBob or Spider-Man.

In most cases, the characters’ creators happily oblige, providing everything from Nemo socks to SpongeBob backpacks.  But the companies have thus far been unwilling to authorize the use of adult-size costumes of the characters, which makes it difficult to grant a five-year-old’s birthday wish to have Dora the Explorer at her party.  Finding Nemo is harder than you think.

The sticking point for owners of the rights in the cartoons is the difficulty of policing and regulating the use of their characters.  Rosman aptly describes this fear: “they don’t want Dora to show up at a party with a cigarette dangling from her mouth.”  This concern is a valid one; any divergence from the character’s TV appearance, personality, interests, or other traits risks confusion, disillusionment, or even revulsion on the part of the adoring children.

Ineffective regulation of a trademark’s use can result in its abandonment.  While it may sound cruel to deprive children of their favorite TV characters on their special day, the risk of losing rights in a character through ineffective policing and abandonment is far too great a risk for companies to please small groups of children at a time.  So, companies instead opt to keep tight grips on their characters, arranging appearances only at more public (and more expensive) places like theme parks, where both the ease of regulation and the level of exposure are higher.

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