Tuesday, December 4, 2018

#HASHTAG®: Can you file a federal trademark application for a #Hashtag?

Over the last 11 years (since the debut of the #hashtag in 2007), #hashtags have become commonplace in social media sites from Twitter to Facebook to YouTube to Instagram and everything in between. The primary purpose of a #hashtag is to improve “searchability” in the expansive Internet universe. But #hashtags have also become useful tools for companies to measure their otherwise amorphous social media activity and productivity, and a means for companies to manage their brands online. As described in this article, by using a hashtag, you can tap into a popular conversation that is relevant to your brand and become a key contributor to that conversation’s shape and consequences.

Companies are now cleverly using the success of the #hashtag to their own benefit. According to SproutSocial, tweets with hashtags get twice as much engagement as those without them, and 55% more Retweets. On top of that, 75% of people on social media use hashtags. Accordingly, it should come as no surprise that #hashtags are no longer being used solely for searchability purposes (such as through generic #hashtags like #shopping or #fitness) but for brand identification (#CalvinKlein and #KateSpade), as well as targeted social media campaigns and online-only contests as well (such as #BlameMucus and #SayItWithPepsi).

Tuesday, November 27, 2018

“Cord-Cutters” and “Cord-Nevers” Increase Pressure on the Traditional Television Market

More than 1 million consumers cancelled their cable or satellite subscriptions in the third quarter of 2018, dramatically increasing the pressure on cable and satellite providers to generate new revenue streams. Satellite operators, DirecTV and Dish Network Corp. (“Dish”), lost the most customers with more than 725,000 subscription cancellations between the two giants. The total 2018 subscriber loss for cable and satellite television providers amounts to more than 2.8 million.

I’m sure most of you have heard the term “cord-cutter,” which describes the phenomenon of consumers cancelling traditional pay-TV subscriptions in favor of cheaper streaming services, such as Netflix and Hulu. However, as more and more young consumers enter the marketplace (millennials, if you were wondering), the term “cord-nevers,” may be more appropriate.

DirecTV and Dish have responded to traditional subscriber losses by launching their own streaming services, known as “skinny bundles.” Dish launched one of the first skinny bundles, Sling TV, back in 2015, with DirecTV launching its skinny bundle, DirecTV Now, in 2016. Skinny bundles are hybrid digital media packages which provide streaming services, like Netflix, but also pay-TV “multichannel” services, like traditional cable or satellite. 

Thursday, November 15, 2018

Recent SEC Activity Puts the Cryptocurrency Industry on Notice

For those who have not been following the U.S. Securities and Exchange Commission’s (SEC) oversight of the cryptocurrency industry/exchanges, the SEC recently settled its first-ever enforcement action against an unregistered cryptocurrency exchange.

Earlier this year, the SEC accused the cryptocurrency exchange EtherDelta and its management team of violating federal securities laws by illegally allowing users to trade tokens (a form of cryptocurrency) that the SEC considers securities under federal law, making it an unregistered securities exchange. Without admitting or denying any of the SEC’s allegations, EtherDelta agreed to pay a $75,000 fine and $313,000 in disgorgement and interest. 

This enforcement action comes on the heels of the SEC’s issuance of The DAO Report—a comprehensive investigation by the SEC of The DAO, a now defunct unincorporated organization established with the objective of operating as a for-profit entity that would create and hold assets through the sale of tokens. Among other findings and a lengthy discussion of the fascinating downfall of The DAO, The DAO Report, as well as the SEC’s March 2018 guidance on cryptocurrency, indicated that nonexempt cryptocurrency exchanges must be registered with the SEC and that online platforms that allow the trading of digital cryptocurrency assets could, in fact, be trading securities. 

Monday, November 5, 2018

An American Buyer in Italy

This past week I had the extreme privilege of attending the 120th annual Fieracavalli (translation: Horse Fair) show in Verona, Italy. This is a massive exposition comprised of over 12 buildings, eight arenas, and seemingly endless outdoor exhibitor areas. There are a multitude of events going on simultaneously, from B2B vendor booths to public shopping to educational shows for school children to world class jumping competitions. It’s completely fantastic and overwhelming!

I was graciously invited to attend Fieracavalli by the Italian Trade Agency. They brought in a small group of buyers from the American equestrian industry in the hopes of building business relationships and increasing the Italian brand presence in our U.S. market. They took wonderful care of us, from the comfortable Lufthansa flights to the beautiful Hotel Giberti accommodations. They even surprised us with tickets to the historic 120th anniversary dinner, set in a courtyard and building where Mozart himself was rumored to play music in his youth, and they gave us VIP accommodations to the spectacular “Gala D’Oro,” or Golden Gala, with performances from some of the best equine acts in their country. As one of the few delegates treated to this magnificent display of hospitality, I feel compelled to share my amazing experience.

Wednesday, October 31, 2018

Why Buy When You Can Share?

My husband and I recently honeymooned in Italy and Croatia. As we made our way through both countries, we stayed almost exclusively in homes we rented from Airbnb, we took several Uber rides, and we were wined and dined at the home of a Tuscan winemaker, an unforgettable experience we booked through Airbnb. In short, we took part in what is known as the “sharing economy.”

The sharing economy goes by many different names and is difficult to define. The Oxford Dictionary took a stab at it in 2015 when it defined the sharing economy as “an economic system in which assets or services are shared between private individuals, either free or for a fee, typically by means of the internet.” Basically, the sharing economy is a system in which individuals and businesses can share their cars, homes, clothing, and other assets, thereby making money on otherwise underused assets. On the other side, individuals and companies can pay to use these assets at a fraction of the cost of buying them. Win-win. Examples of well-known companies operating in the sharing economy include:

  • Airbnb, an online marketplace used to arrange lodging and tourism experiences.
  • Uber, a peer-to-peer ridesharing and food delivery company.
  • Lyft, an on-demand transportation company.
  • Turo, a peer-to-peer car sharing company.
  • Rent the Runway, a clothing rental service.
  • Le Tote, a clothing rental subscription service.

The concept of sharing resources has historical roots. However, the old concept was made new in the 21st century thanks to new technologies such as the internet and mobile phones. The concept has since seen extraordinary growth worldwide.

Thursday, October 25, 2018

“Those who cannot remember the past are condemned to repeat it.” - George Santayana

I’m going to depart from discussing my usual intellectual property and technology subjects and step on my colleague Dave Morehouse’s toes with discussion of a book. Actually three books—Ken Follett’s Century Trilogy.  

The first book, “Fall of Giants,” follows five interrelated families from Wales, England, Russia, Germany, and the U.S. as they experience social and political issues at the time of the First World War. The second book, “Winter of the World,” continues with these five groups through the rise of the Third Reich, World War II, and the beginning of the Cold War. The third and final book, “Edge of Eternity,” continues the families’ stories in the 60’s, 70’s, and 80’s.

I first read these books as they were published between 2011 and 2014. While I don’t often reread books, particularly when they are this voluminous, I was recently drawn to them for a second look. If you have read Follett, you are familiar with his creative and interesting use of fictional characters and occurrences to illustrate and explain actual historical events. But unlike dry historical narratives, he gives you a sense of the human side of why things happened. In my initial read, I found the human stories to be most compelling, but viewed them largely in their historical context—things that happened 100, 80, and 50 years ago. In my second reading, I am drawn to the broader backdrop and some striking relevance to current social and political behavior.  

Wednesday, October 10, 2018


I usually write about legal issues relating to privacy and data security. The long anticipated new European privacy law known as the GDPR took effect this past May. It was quickly followed by the California Consumer Rights Act, which takes effect in 2020. Earlier this year I wrote about these new protective laws and what they mean for businesses.

For this post, however, I am going to share a personal story that in some ways demonstrates the huge difference between European and American privacy laws and regulations.

On November 21, 1944, my mother, Judy Meisel, was in line with her mother, Mina Beker, as they approached the gas chamber at Stutthof concentration camp in Poland. A Nazi guard pulled my mother from the line just before her mother was ushered into the small and dank brick structure where she was poisoned with Zyklon B gas. We know the exact date Mina was murdered as the Germans kept a detailed record book. You can find the page and see where, on row 4, they recorded my grandmother’s birthdate and hometown. The last column displays the date they ended her life.