Legal Terms in Real Life: Genericide (Or: The Death of Google)

This series explains legal terms in plain language and gives examples from everyday life.

Today’s Legal Word of the Day is “genericide,” from trademark law. Genericide has been in the news recently because of Arizona resident David Elliott’s lawsuit to cancel two of Google’s trademark registrations for the term “GOOGLE” (Reg. Nos. 2,806,075 and 2,884,502). Black’s Law Dictionary (8th Ed.) defines “genericide” as: “The loss or cancellation of a trademark that no longer distinguishes the owner’s product from others’ products.”

Trademarks are words, symbols, or other source indicators (even colors, sounds, or scents) that help a consumer distinguish the products or services of one company from those of another. When a consumer is in the store, he or she can choose to purchase toothpaste labeled Crest, Arm & Hammer, Colgate, or any of a number of other toothpaste brands. The name on the box helps the consumer distinguish one from another. Trademark law is, at its heart, a form of consumer protection, although businesses, not consumers, must spend their time, energy, and money on building up and protecting trademarks as source identifiers.

As you know from our previous Legal Word of the Day, distinctiveness, there is a continuum of trademark strength, from fanciful to generic. Trademarks can move along this continuum. A mark that starts out as descriptive can become distinctive through long use and/or an advertising blitz, so that consumers associate what would be a descriptive name exclusively with a single product. For example, the clothing store The Children’s Place has at least arguably acquired distinctiveness as to its THE CHILDREN’S PLACE trademark.

Conversely, trademarks can move in the opposite direction along this continuum. A mark that starts out as fanciful or arbitrary may become the generic term for a product if consumers begin to believe that the trademark is the name of the product. This is genericide. Examples of marks that have been killed through genericide include ASPIRIN and THERMOS. Examples of marks that have at one time or another become endangered include BAND-AID, VELCRO, and TEFLON.

Whether Mr. Elliott successfully has Google’s GOOGLE trademark canceled will depend on whether he can show that the term has become so ubiquitous as a word meaning “to search” that consumers no longer associate the term with any particular search engine. He has several examples showing that the mark is often used as a verb meaning “to conduct an internet search”; however, he may have to show that consumers use the word to signify searching on any search engine, not only on Google’s search engine. This may prove difficult for him; I was unable to locate serious examples of people referring to “googling on Bing,” though parodies do exist.

Genericide is a fairly ironic death for a trademark; it signals that a company has become so successful at making its mark so well-known that the general public can no longer distinguish the trademark from the product. Genericide is death by success.

Crowdfunding and Your Business

In March, Congress passed the controversial Jumpstart Our Business Startups Act (JOBS Act), Public Law 112-106, and President Obama signed the bill into law on April 5, 2012. The Act is designed to stimulate job creation (and, by extension, the economy) by helping emerging companies get better access to capital. This post explores some of the changes to crowdfunding brought about by the Act and what you might consider in deciding whether crowdfunding is right for your business.

First and foremost, this bill made crowdfunding legal. Before, it was (and still is) illegal. But wait, you may ask, what about sites like Kickstarter and IndieGoGo? Are they illegal? No; crowdfunding in the sense we are speaking of here means allowing unaccredited investors (read: people who are not rich) to invest in new and emerging companies that are not publicly traded. Both Kickstarter and IndieGoGo allow people to give money to others in exchange for a product or service (or nothing) to be provided in the future, as opposed to in exchange for an ownership interest in a company. Now small business owners, too, will be able to receive investments from the public, and members of the public will be able to become part-owners of the smallest of companies.

The JOBS Act allows greater access to funding by small companies (it calls them “emerging growth companies” and defines them as companies with less than $1,000,000,000 in annual revenue, if they did not have their initial public offering on or before December 8, 2011) in large part by deregulating them—giving them selected exemptions to the reporting, advertising, and other requirements of the Securities Exchange Acts of 1933 and 1934, as well as the Sarbanes-Oxley Act. It also gives a framework for operations of companies that will deal in emerging growth company securities, including brokers and the newly-created category of funding portals.

These funding portals are subject to some, but not all, of the same regulations as brokers, likely because a funding portal is far more limited in the functions it can perform — little more than selling emerging growth company securities. No matter which type of intermediary is involved, the intermediary will have a great many disclosure requirements as well as obligations to ensure certain protections are in place for investors. Emerging growth companies, as issuers of securities through these intermediaries, will have to provide a great deal of information in preparation for receiving investments. All crowdfunding will have to go through a broker or a funding portal.

If you have a small business, here are some highlights you should be aware of:

  • It will now be possible to receive up to $1 million per year in funding from investors who are not accredited. Anyone from your parents to strangers will be able to invest in your company.
  • You still cannot advertise a crowdfunding offering, except to direct people to the broker or funding portal that is supporting your securities offering.
  • You must ensure that information you provide to your broker or funding portal, which is then passed on to investors, is complete and correct. The JOBS Act lists some of the information that will need to be provided and gives the SEC authority to require additional disclosures.
  • When you seek investments, you will be required to select a target, and you will not be able to receive any funds at all unless you reach your investment target amount (think Kickstarter).
  • All officers, directors, and major shareholders of your company will be subject to background checks before you can list your securities offering.
  • Your broker’s or funding portal’s officers, directors, or partners will not be able to have a financial interest in your company.
  • You will need to make an annual report to the SEC and to your investors regarding your operating results and financial statements.
  • If you meet all of the requirements, your offering will be exempt from state blue sky laws, which are the state equivalent of the Securities Exchange Acts.
  • Securities you sell in a crowdfunding offering cannot be transferred for a year, unless they are transferred back to your company, to an accredited investor, to a family member, or in connection with the death or divorce of the investor. The SEC has the option to impose additional restrictions.
  • Crowdfunding is available only to domestic companies that are not investment companies and are not reporting companies under the Securities Exchange Acts.
  • The SEC has, in several places, the authority to promulgate whatever regulations it believes are needed. The statute gives the SEC 270 days, or 9 months, to create the regulations. They are subject to public comment both now and upon release.

Are you still interested in crowdfunding after reading all of that? Here are some more things to consider in deciding whether crowdfunding is right for your business:

  • The wait. If your company is in need of funds now, crowdfunding is not the way to go. It is likely to take at least a year to a year and a half before there are any crowdfunding opportunities.
  • The expense. Overall, complying with the disclosure requirements could be prohibitively expensive for companies in the earliest stages. The SEC has publicly stated its displeasure with several aspects of the JOBS Act and is widely expected to use its rule-making authority to create substantial barriers to crowdfunding.
  • Communicating with investors. You know how anxious your friends and family are to hear about how your business is going now? Imagine how much worse they would be if they had money riding on the outcome. Small investors, like many small business owners, are likely to be very emotionally invested in the outcome of your business and may be more likely to sue than larger investors if things do not go as planned.
  • The responsibilities. You may see crowdfunding as an opportunity to bring on some money without being beholden to an angel investor or venture capitalist. But once you take on investors, no matter how small they are, you will have responsibilities to them. Minority stakeholders have rights—make sure you know what those are and how they will affect your operations before you decide you want a few.

Do you think crowdfunding will be right for your company, or are you waiting to see what the SEC regulations look like before deciding?

Social Media and the Law

After a whirlwind week of events, I have not had time to write for the blog this week. Instead, I offer up video from my presentation to JMU612 with Paul Godfread last week. Keep in mind that the videos are provided for informational purposes only and do not constitute legal advice. Huge thanks to Joel Carlson for taping, editing, and posting, and to Erica Mayer for keeping us on task. Enjoy!

[clear]

Social Media and the Law Part 1

Social Media and the Law Part 2

Cloud Computing Basics for Lawyers

Internet Law - Trade Secret - Protect My Idea

I am a (very!) active member of Minnesota Women Lawyers, so I was pleased when offered a chance to write for the current issue (Volume XXXVI, Issue IV) of the organization’s publication, With Equal Right. I wrote about basic cloud computing concepts for attorneys:
[clear]
[box]As technology evolves, law firms’ and legal departments’ use of technology changes, too. The hot topic lately has been cloud computing. You may be familiar with cloud computing but wonder what you can do to protect your business and your clients; or you may wonder what precipitation has to do with computers. This article will give you some basic information to help you get your bearings….Read more[/box]

Pinterest Copyright Questions and Concerns

Pinterest for Business

The Social Networking Nanny, Lanae, and I co-wrote a blog post over at Lanae’s blog:
[clear]
[box]

“The last few months have been a whirlwind here at Pinterest. It’s hard to explain how it feels to go from a small group of people working on a virtually unknown website, to a slightly bigger team of people working on a service that millions of people use every day.” (Pinterest spokesperson to CBS’s WCCO)

Isn’t that statement the truth! In a busy, busy world who doesn’t love a fast and easy way to share ideas, recipes, fashion and more…hello Pinterest! It sparked our interest, 12 million of us have flocked to it, and for many of us it became an immediate addiction. And then the “fine print” was made bold to us. … Nobody likes reading the fine print, but interpreting this was scary. Could we possibly be violating people’s Copyrights? … Read more

[/box]