Tuesday, January 19, 2021

Helping You Fulfill Your New Year’s Resolutions: The Smart Home Gym

For many, the start of 2021 means a brand new set of New Year’s resolutions. At the top of the list of most popular New Year’s resolutions is, as you’d expect, getting more exercise. According to a study conducted by Statistica in late 2020, a staggering 44% of participants in the study were planning to start 2021 with this resolution. But with many gyms closed due to the global pandemic (or due to the anxiety caused by going to a gym in a global pandemic), sticking to this popular resolution may be more difficult than in past years.

Enter: the smart home gym. Most people have heard of home gyms and many probably own one or more of them, whether in the form of a treadmill, exercise bike or otherwise. In recent years, though, the options for home gyms have expanded greatly. You can now find a home gym that offers just about any workout you can imagine running, biking, weight lifting, kickboxing, etc. Home gyms have also become significantly more advanced and technologically innovative in recent years, some even with Artificial Intelligence.

Thursday, January 14, 2021

Greg Sestero & Tom Bissell, The Disaster Artist: My Life Inside the Room, the Greatest Bad Movie Ever Made (Simon & Schuster, 2013)

In my book reviews over lo these many years, I’ve often expanded on the commonly accepted notion that entrepreneurial activity is exclusively economically oriented — that an entrepreneur is someone who builds a successful business starting from scratch, typically as a result of exploiting a new-found market niche or, more prosaically, by building a better mousetrap.

And now, as Monty Python would say, for something completely different.

The blurb for this book describes the subject film, “The Room,” as “the Citizen Kane of bad movies.”  I have to confess that I haven’t seen it.  My curiosity was piqued when James Franco won a Golden Globe in 2017 for his appearance as Tommy Wiseau, the driving force behind “The Room,” in the movie made from this book.

The typical entrepreneurial scenario involves someone with a great idea but not necessarily the financial wherewithal to exploit it, leading to a story filled with successive rounds of venture financing and innumerable compromises along the way. “The Disaster Artist,” by contrast, is the story of a man with a dream and plenty of money, enough that he doesn’t need to refine his vision to satisfy others. The statistics tell the story: the film had a budget of $6 million, and box office receipts of $1,800 (yes, that’s the correct number) in its original release.

The film has gone on to achieve cult status as the best bad movie ever. The book is an entertaining view of what happens to an entrepreneur and his idea when he or she does not need to deal with the reality check that is the marketplace.

Tuesday, December 29, 2020

Syringe Saves Santa

In a year where we have heard a lot of “no,” one recent development had people (children, mostly) across
the world excitedly yelling “yes!”

Santa, who is arguably one of the greatest entrepreneurs of all time, had a tough task ahead of him this year. Like all good entrepreneurs, Santa adapted throughout the holiday season, including by hosting gift-giving brainstorming sessions remotely in lieu of his annual mall visits. Even with his adaptations, however, maintaining social distancing and avoiding unnecessary travel would have made Santa’s already challenging task of delivering gifts to children across the world impossible.

As a frontline worker, Santa recently had an unexpected visit to the North Pole from Dr. Fauci, the director of the National Institute of Allergy and Infectious Disease. Dr. Fauci saved the day, explaining, “I took a trip up there to the North Pole. I went there and I vaccinated Santa Claus myself. I measured his level of immunity, and he is good to go. He can come down the chimney, he can leave the presents, he can leave, and you have nothing to worry about.” 

With the go-ahead to travel (by reindeer, of course), Christmas was saved by Dr. Fauci and a team of scientists. Santa Claus did, in fact, come to town — masked and vaccinated!

Hang in there, entrepreneurs. If your adaptations don’t solve all of your problems, the cure may be just around the corner.

Wednesday, December 23, 2020

Twelve Days of Christmas in a Pandemic

In the past, I have frequently found it amusing to see the PNC calculation of the CPI. In case you thought it strange that a right-brained entrepreneurial lawyer like me was amused by something as mundane as the Consumer Price Index, this time of year CPI stands for Christmas Price Index. Essentially, it is an attempt to calculate the cost of acquiring the items listed in the classic Christmas carol, The Twelve Days of Christmas.

I hadn’t thought to focus on it in the middle of my efforts to help a few entrepreneurial clients close their M&A and financing deals before year end (fingers crossed), and in the middle of a global pandemic no less, but then I happened on this article in Forbes and started thinking about how COVID-19 might have impacted the calculation.

It turns out that the CPI actually decreased by over 58% from last year . . . sort of. The actual cost didn’t decrease for any of the items on the list, although it did stay the same for a few varieties of birds (Calling Birds, Swans-a-Swimming and the ever popular Partridge in a Pear Tree). Other varieties of birds saw their values increase materially with Turtle Doves, French Hens, and Geese-a-Laying increasing by 50%, >15%, and >35%, respectively. Add to that a 14.5% increase in gold rings and you start to wonder how the overall cost could be down so dramatically?

Thursday, December 17, 2020

What Is an ATDS and Why Should I Care?

The Supreme Court had more on its plate last week than considering how to respond to election fraud claims made by Donald Trump. On December 8, the court heard oral arguments in Facebook Inc. v. Duguid, a case that has been anticipated by many who have had to determine what they could do when using phone calls or texts to reach customers.

For 10 months, Facebook sent text messages to Noah Duguid, without his consent, alerting him that someone was trying to access his Facebook account. An account Noah did not even have. Noah Duguid sued Facebook.

Such phone calls or texts are governed by the Telephone Consumer Protection Act of 1991 (TCPA), one of the few privacy-related laws that allow for a private right of action. Multi-million dollar lawsuits have stymied businesses who have failed to comply with the consent requirements of the TCPA.

At issue in Facebook Inc. v Duguid, is whether the TCPA definition of an “automatic telephone dialing system” (ATDS) encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “use a random or sequential number generator.”

Facebook argued that the equipment it used to send the text messages to Noah was not an ATDS and it was therefore not in violation of the TCPA. Facebook also contended its First Amendment rights would be violated if it were found liable.  

Wednesday, December 9, 2020

Daniel Kahneman, Thinking, Fast and Slow (Farrar, Strausand Giroux, 2013)

Indulge me for a moment — a baseball bat and a ball cost $1.10. The bat costs $1 more than the ball. How much does the ball cost? 

If you are like me (and most of Daniel Kahneman’s subjects), you answered this question easily, quickly, and incorrectly. Most of the population answers this way — that the bat costs $1.00 and the ball costs $0.10. Return to the problem and you can see that this answer is incorrect. Very simple math reveals the correct solution: that the bat costs $1.05 and the ball costs a dollar less at $0.05. 

This simple experiment showcases the central question of Thinking, Fast and Slow: why does the mind sometimes use answers it knows to be false as solutions to questions it is most certainly capable of answering correctly? Daniel Kahneman, the Israeli psychologist and Nobel Prize winning economist, answers this question by examining the irrationality of the human mind in his international bestseller, Thinking, Fast and Slow.

Kahneman’s book takes the reader on a tour of the human mind — urging the reader to take a step back and examine their own irrationality, to tap into the benefits of what he calls “slow thinking.” He begins by describing the two systems (or characters as he refers to them throughout the book) which govern our thinking. System 1 is fast thinking. It operates automatically and quickly, with little or no effort and no sense of voluntary control. System 2 is slow thinking. It allocates attention to the effortful mental activities that demand it — deliberation and strategic thinking. System 1 is our motor. It continuously generates impressions, intuitions, intentions and feelings. System 2 is our steering wheel — turning those impressions, intuitions and impulses into voluntary actions.

Entrepreneurs, and, frankly, most humans, spend most of their time in System 1 — making decisions, putting out fires and navigating the multitude of minute decisions in our day-to-day lives. A well-developed System 1 is at the core of every entrepreneur — the ability to make snap decisions, follow your gut and irrationally believe that a business will prevail. But oftentimes that is how we end up with a baseball bat that costs 90 cents more than the ball.

Tuesday, November 24, 2020

Registration of “Generic.com” Trademarks after Booking.com

One of the most critical aspects of starting a new enterprise, or growing an existing business, is
establishing and protecting a strong brand. For most modern entrepreneurs, this means not only selecting a name and logo but also acquiring a domain name. Some online businesses have taken the approach of using a domain that incorporates a generic term for the sort of goods or services provided by that business and using that domain not only for their website but also as their primary brand for advertising and sales purposes (for example, shoes.com, hotels.com, mattress.com). While these domains can be valuable from a marketing perspective, it can be difficult to protect these domains from a trademark perspective. This is a particular challenge for businesses that have come to use a domain as their primary brand, because such “generic.com” terms are often denied federal registration as trademarks. 

In June 2020, the U.S. Supreme Court issued a decision in United States Patent and Trademark Office v. Booking.com B.V. stating that trademarks that combine a generic term with a top-level domain such as “.com” should not automatically be considered generic overall. The United States Patent and Trademark Office’s (USPTO) had rejected Booking.com’s applications to register the mark BOOKING.COM for online hotel-reservation services on the basis that these terms are generic and unregistrable by default. However, the Supreme Court found that, if consumers recognize an applicant’s “generic.com” mark as specifically identifying that applicant as the source of the goods or services, the mark may be registrable.