Blackletter

Tom Dunlap chats with Dusty Gwinn, Gerald LeMelle, and Ken Harvey about athletes and immigration law.

A new United States Supreme court decision from December 11th, 2019 changes how corporate counsel, business owners and attorneys, the United States over, can consider and deal with defending their patents and trademarks against the US PTO. In other words, if the rule right now is if you appeal a decision of the US PTO in a trademark case, the US PTO can collect its attorney's fees from you if it wins the case. If you appeal a decision from a patent case. The rule prior to December 11th was that the US PTO at least asserted that they could collect their attorney's fees. The Supreme court took this case up. It was Peter vs NantKwest, Inc. and they based their decision to ask for attorney's fees on section 145 35 USC 145 of the patent act, which says that the US PTO was entitled to collect all of the expenses of the proceeding. So that's win, lose or draw. The US PTO claimed that it was entitled to collect fees. What was partly interesting about the NantKwest case, it's the first time since 1839, 174 years, that the US PTO has asked for attorney's fees in this kind of case. Clearly they were looking to shift what was going on and they wanted to start making this a revenue generator for them at least recover their costs as part of their governmental function.  The outcome of the case, the Supreme Court decided that the US PTO could not collect its attorney's fees and this is a big shift because I think it also affects the current state of the law with respect to appeals of trademark matters

If you would like to start a new business, or currently have one, and want to involve the sale of alcoholic beverages in your business it is important that you learn about the many types of alcoholic beverage licenses.  Every state will have its own laws for the sale of beer, wine, and liquor.  You must apply for the correct alcoholic beverage license, also known as a liquor license, in order to legally sell or distribute spirits, wine, or beer.  The following is an explanation of the types of liquor licenses you may need.  For help with applying for your alcoholic beverage license, contact our liquor licensing attorneys at Dunlap Bennett & Ludwig.

Each state has an alcohol beverage control office that has ruling over the licensing and order of alcohol distributors and producers for that state. The Alcohol & Tobacco Tax and Trade Bureau controls it at the federal level.  What you will need when it comes to a liquor license will depend on your state.  It is important that you check your state’s laws and speak with a licensed attorney for help putting in an application for your license.

In Washington, D.C., alcoholic beverage license types include:

1. Manufacturer: A business that makes wine, spirits, or beer;
2. Wholesaler: A business that sells an alcoholic beverage to other ABC licensed businesses for resale;
3. Off-premises retailers: Retailers who sell alcoholic beverages for drinking off their property only, this could include online sales;
4. On-premise retailers: Retailers that sell alcoholic beverages and allow drinking on the licensed property. This can include restaurants, bars, hotels, nightclubs, etc.

These are just a few of the possible types of alcoholic beverage licenses that you may need.  The different licenses are given by class, and your license type will decide the kind of alcoholic beverages you can sell.  License classes in Washington, D.C. include:

• Off-premises Retailer Class A: Allows a store to sell beer, wine, and spirits for drinking off property;
• Off-premises Retailer Class B: Allows only the sale of beer and wine for drinking off property;
• On-premises Retailer Class C: Allows the sale, service, and drinking of spirits, beer, and wine at a restaurant, bed and breakfast, nightclub, tavern, and multipurpose location, with licenses, explained more by the type of business.

Searching for the right liquor license for your business can be a long and sometimes challenging process.  Speaking with liquor licensing attorney is always helpful. They can also look to see if you are following all state and federal alcohol laws correctly.

Learn more about liquor licensing by clicking here.

Estate Planning

Tom Dunlap sits down with Rhonda Miller and Sarah Aviles to chat about estate planning and some things you want to avoid.

Parts of today’s online business and technology market rely on operating websites with two characteristics:  (1) making access to data available to the general public and (2) protecting that data from web scraping.  Website owners and web scrapers will want to watch hi’Q Labs’ litigation against LinkedIn Corp. to see if these two characteristics are, in fact, compatible, something placed in doubt by the United States Court of Appeals for the Ninth Circuit in HiQ Labs, Inc. v. LinkedIn Corp., 2019 U.S. App. LEXIS 27107, ___ F.3d ___, 2019 WL 4251889 (9th Cir. Sep 9, 2019).

In hiQ Labs, the Ninth Circuit narrowly interpreted the meaning of “without authorization” in the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, to deny LinkedIn’s appeal of the District Court’s preliminary injunction forbidding LinkedIn from preventing hiQ Labs from scraping LinkedIn servers for publicly available information.

In apparent contravention of LinkedIn’s User Agreement, hiQ scraped the profiles of LinkedIn members for information that was viewable by any member of the general public.  HiQ did not scrape the profiles of those LinkedIn members whose privacy settings precluded access by the general public.  HiQ used the scraped information to produce “people analytics” it sold to businesses.  LinkedIn was likley aware of this activity because LinkedIn personnel had attended hiQ events selling its product over several years.  When LinkedIn developed a competing product, however, it sent a cease-and-desist letter to hiQ claiming the scraping activities violated LinkedIn’s User Agreement.  LinkedIn also took technical measures to prevent hiQ from accessing its website and warned hiQ that it risked violating the CFAA if it continued scraping.

Claiming a right to scrape and copy publicly available information, hiQ sued and obtained a preliminary injunction prohibiting LinkedIn from denying hiQ access to the information in LinkedIn profiles visible to the general public.  LinkedIn appealed, arguing in part that given the cease-and-desist letter, hiQ would violate the CFAA provision against intentionally accessing a computer without authorization to obtain information from a protected computer.  The Ninth Circuit disagreed.

The Ninth Circuit noted that authorization is “an affirmative notion” indicating access must be restricted except to those specifically permitted.  In order for a website to be accessed without authorization, then, the website’s generally applicable rules require some indication of permission.  Since LinkedIn allows anyone with a computer and an Internet connection to access publicly available portions of LinkedIn member profiles, LinkedIn’s generally applicable rule is access without authorization.  As a result, hiQ Labs had a strong argument that despite LinkedIn’s User Agreement and the cease-and-desist letter, hiQ’s could access LinkedIn servers to scrap publicly available information without violating the CFAA.  The existence of a strong argument was enough for the Ninth Circuit to affirm the District Court’s order granting the preliminary injunction.  The Ninth Circuit noted other legal bases might exist to allow LinkedIn to ban hiQ and it was not addressing those.

By Robert Eatinger & David Verhey

Partners at Dunlap Bennett & Ludwig

https://www.dbllawyers.com/when-you-let-everyone-in-stop-is-not-enough/