Category: Practices

After you graduate from your infancy to your adolescent corporate self, we will guide you through issues such as franchising, hiring employees, licensing, and bringing in new capital that are particular to the technology, media, and design industries. As you grow from your adolescent to your adult corporate self, we will seek to keep you away from the gazing and expensive eyes of the Securities Exchange Commission. To do that, we keep your capital raising efforts in the technology, media, and/or design industries within application exceptions, including the private placement exception, Regulation D exceptions, and accredited investor exception. That way, you can grow without worrying about complying with expensive and tedious SEC rules that may hinder your capital raising effort.

We regularly advise clients on such matters as:

• Corporate structuring and governance
• Venture capital financing
• Board composition, procedures, and election contests
• Committee compensation and procedures
• Best practices for boards, committees, and officers
• Special Committee formation and execution
• Crisis management
• State and federal securities laws (including complex disclosure requirements) and stock exchange requirements
• Restatements and internal control
• Shareholder and market communications
• Shareholder activism
• Privacy and data security
• Public equity transactions
• Debt finance
• Employee benefits and compensation
• Technology transactions
• Employment law

We have successfully represented technology, media, and design clients in high stakes litigation concerning antitrust, appellate, class action, commercial, and intellectual property matters in both state and federal courts, including in the Supreme Court of the United States.

Antitrust

Antitrust law can often be a critical tool to protecting our technology, media, and design clients’ business interests. A burgeoning film distributor may be boycotted by a handful of larger competitors, which is a violation of Section 1 of the Sherman Antitrust Act. Alternatively, a larger film distributor may unlawfully extend its patent over a distribution technology in order to keep the burgeoning film distributor out of the market, which is a violation of Section 2 of the Sherman Antitrust Act

Regardless of the cause of your particular problem, our litigation and counseling has involved the full spectrum of antitrust and unfair competition issues, including price fixing, market allocation, exclusive dealing, exclusive territories, tying arrangements, monopoly leveraging, essential facilities, trade associations, patent abuse, and the full range of antitrust exemptions and immunities, including the Noerr-Pennignton doctrine, which is a qualified privilege for private entities who petition the government.

Appellate

In light of the uncertainty inherent in litigation at the trial court level, having the ability to successfully appeal lower court decisions that adversely affect your interests is essential. On numerous occasions, we have successfully represented technology, media, and design clients on appeal in federal and state courts in connection with matters as varied as entertainment, unfair competition, and antitrust, in the following courts: the New York Supreme Court, Appellate Division, First Department; the New York Supreme Court, Appellate Division, Second Department; the United States Court of Appeals for the Second Circuit; the United States Court of Appeals for the Fourth Circuit; the United States Court of Appeals for the Eleventh Circuit; and the Supreme Court of the United States.

Commercial

Our technology, media, and design clients often call upon us to represent them in connection with their important complex commercial disputes, whether they are in federal court, state court, or arbitration. Such disputes involve inherent uncertainty, are expensive, and divert much needed psychic energy away from our clients’ businesses. As a result, we aggressively seek to favorably settle disputes in their nascent stage before they proceed to litigation or arbitration. We have done so on many occasions. At the same time, we have successfully litigated a myriad of commercial disputes, including:

• Breach of management, distribution, recording, co-publishing, licensing, and promissory note agreements;
• Trade secret, non-competition, non-solicitation and/or confidentiality agreements; and
• Wrongful termination, detrimental reliance, and breach of employment agreements.

Intellectual Property

The breadth and depth of our experience litigating trademark and copyright disputes on behalf of our clients is extensive. We have prosecuted trade dress and trademark claims on behalf of large fashion houses, in addition to defending independent magazines against claims of trademark infringement. Grammy® award winning recording artists and songwriters also often rely on us to represent them in connection with their copyright and trademark infringement disputes, whether they arise in court or arbitration. Many of the intellectual property disputes we have worked on involved related issues concerning antitrust, regulatory compliance, and licensing.

We seek to protect your intellectual creations in the technology, media, and design industries so that you can enjoy the fruits of your labor. To do that, we try to meet with you during the creative process so as to ensure that your works are eventually protected before or while they go to market. Even after your technology, media, or design creations have seen the light of the marketplace, we will develop a strategy with you so that you can properly police third party use of your creations. That way, you won’t lose what you have worked so hard to create.

Copyright

When you are an author of an “original work,” your work is generally entitled to copyright protection under the U.S. Copyright Act. However, you generally still need to have a registered copyright with the U.S. Copyright Office in order to enforce your rights in federal court. An “original work” can include software, paintings, writings, dramas, and musical works. As a copyright owner, you have the right to stop others from partially or completely reproducing your copyrighted materials. Still, others have the right to “fair use” of your work.

As a result, we counsel you on how to use copyright law so that you receive maximum returns for the authorized and unauthorized use of your creative works. We also guide you so that you do not take actions that may be construed as copyright infringement, including compliance with open source software licenses (Apache, GPL, LGPL, MIT) and the Digital Millennium Copyright Act.

Trademark

Trademarks serve to identify a business as the source of its goods or services. These words, symbols, or designs become more valuable as business grows. Trademarks registered with the United States Patent and Trademark Office (“USPTO”) generally receive more protection than trademarks that are not registered. That is precisely why most businesses who intend on receiving venture capital money or who intend on going public eventually have a registered trademark. For these reasons, we advise our clients on how to select a mark that is a viable candidate for registration.

Even when our clients have already used a trademark that cannot be registered with the USPTO, these marks still receive protection under what is called the “common law.” We advise our clients about their rights under the common law, and how to stop others from infringing their common law trademark rights. In addition to ensuring that our clients’ trademarks are properly protected, we advise them concerning the licensing of their trademarks for use by others via franchise agreements and otherwise. We also draft and negotiate appropriate licensing and co-existence agreements that fit our clients’ particular needs.

Trade Secret

Today’s highly fluid global economy is synonymous with increased employee mobility and spin off companies. That is why trade secret protection is of the utmost importance. Trade secrets are recipes, formulas, devices, techniques, patterns, data compilations, and methods which are essential to the survival of a business but which are not subject to patent or copyright protection. We advise our clients as to what qualifies for trade secret protection, and then we assist our clients to develop and implement trade secret policies and procedures tailored to their business.

With the necessary safeguards in place, our clients can then protect their own enforceable trade secret rights through all means, even by seeking an injunction or damages under the Uniform Trade Secrets Act or the Economic Espionage Act. Finally, we advise our clients on how to leverage their trade secret so as to generate revenue streams and open new markets. These contracts may be simple licenses or joint ventures that provide product and market access to both parties.