Blog Interview with Intellectual Property Attorney, Heather B. Vargas

I got the opportunity to interview Heather B. Vargas (Heather) about her experiences with professional negotiations. She is a professional and board certified intellectual property attorney. She actively works in the entertainment and media law capacity in addition to other areas of law.

In entertainment law, it is important to hire an attorney who is competent in negotiating and deal-making. Below is the interview I conducted with Heather, which reflects her experiences about negotiations.

Q: How do you separate the people from the problem when you are negotiating? 

A: This is not an issue after you have been practicing law for a few years. More often than not, attorneys are very friendly & are just trying to work out what is best for their client. The key is to analyze the problem without emotion before you have the first conversation with the other side & before you have a chance to form an opinion of your opposing counsel. Thinking your case through before communicating with the other side allows you to see where you have leverage, if any, and capitalize on it. It also allows you to set reasonable expectations for your client. 

For example, if your client has been accused of infringement, and is actually infringing, then your leverage is that you can get your client to agree to stop infringing without the plaintiff having to spend the time and money to file a lawsuit.  Your client should be happy with that (not having to pay money) if you have set their expectations properly.

Q: What tips do you have for new negotiators who are trying to separate the people from the problem when they are negotiating?

A: Don't adopt your client's emotion.  Your client is living the drama of whatever is happening.  You should be sympathetic, but that should not carry over to your communications with your opposing counsel.  You and the other lawyer have been hired to solve the problem, and you are able to do so because you do not have the frontline emotions that your clients have. 

Saying "I don't know" is not only okay; it is sometimes your best answer.  It is better to be sure of what you are saying then to have to risk your credibility by retracting something later.  Also, every attorney should respect saying that you have to go back to your client for authority.

  

Q: How do you negotiate with an objective criteria already set in place?

A:  Be creative. A lot of negotiations come down to money, but sometimes there is something that you can give that is worth more to the other side than it is to your client.  Remember, the other side's product or service costs them a lot less than it would cost for your client to buy it on the open market, and vice versa so that is a good place to look for potential deal points.

Q: Can you give me an example of how you worked toward mutual benefit when you were negotiating a deal?

A: Obviously, everything I do for my clients is confidential, but I can tell you that we were able to strike a deal on a trademark matter once with my client (the owner/prior user of the mark) getting night club tickets in lieu of some of the money they were seeking.  It didn't cost the opposing party (the owner of the night club) anything and my client got something they wanted.

Interviewee Contact:

Heather Bond Vargas

Florida Bar No. 230900

Cobb Cole Center 149 South Ridgewood Avenue Suite 700

Daytona Beach, FL 32114

(D) 386-323-9220  | (F) 386-944-7964

Website | Bio | vCard

EXPOSED! Online Counterfeit Stores

Many times, when shopping online for popular name brand clothes like Louis Vuitton, Gucci, Dolce & Gabana, etc, people seek to find the best and authentic deals of the brand. Sometimes, it’s easier than not to decipher whether an online site is just an imitator or not, but in 2014, it is getting easier for imitators to appear just as authentic. According to an article on Intellectual Property Today, the brand name True Religion was awarded over eight hundred million dollars against imitation retailer sellers from China. This article was interesting because it made me think of two things: 1) the extremity of retail counterfeit and 2) whether an ordinary consumer would be allowed to file against them. These two points shed light on the problems that the internet imposes on registered patents and registered trademarks.

The expansion of the Internet has proven to be very beneficial in today’s society but it has also opened its shared of disadvantages as well. Online shopping is done more frequently now than it has ever been done before and as a result, many retail companies have online stores. However, retail imitators or counterfeiters are also sneaking up behind these companies and creating fake online stores. The problem this creates is that the revenue of sales is being taken away from the real company and their customers are being ripped off by the imitators.

In the True Religion case, true religion won against the counterfeit companies operating out of China. But, what happened to all the customers who got ripped off? Would it be fair to prohibit them to seek money from the counterfeit companies who ripped them just because True Religion sued them already? In many cases, a consumer would be able to file a civil suit against these counterfeit companies on grounds of breach of contract, etc.  Nonetheless, retail counterfeit is a problem that  needs to be dealt with. But how can it be stopped? To me, it only seems like it can be dealt with case by case. It just seems to large of an issue to track down every company on the internet and make sure that every site conducting business under its name is not a counterfeit site.

Is it fair to ignore copyright laws only when it profits the copyright owner?

I watched an incredible video on TED.com where I came upon a video by Margaret Gould Stewart (Stewart) entitled How YouTube thinks about Copyright. In the video, Stewart describes how YouTube deals with copyright infringement.

There are tons of media duplicates on YouTube of the same content. So obviously, it appears as if YouTube allows copyright infringement to occur on their website? 

But doesn’t it seem as if YouTube does not properly enforce copyright laws? At least, that is how it seemed to me until I watched Stewart’s video. However, according to Stewart, YouTube does have boundaries set in place. Although YouTube does not know or track down the original content owners for most video uploads, for identified content from established companies like Sony or music artists like Chris Brown, YouTube enters into contracts with them. Whether content uploads are based on a contract or not, YouTube monitors every video submission for copyright infringement on its content database. 

Each time someone uploads a video that is a match to the original content, YouTube refers to the contract and the copyright owner. The decision is then made whether to allow the upload or to refuse permission to upload. In many cases where there is a match for content infringement, if YouTube does not have a contract with the original copyright owner, does not receive a request for content removal, or a notice of infringement, the video upload then remains on the site without repercussions. In addition, many copyright owners allow duplicates of their content to be uploaded on YouTube because it is promotion for them as in publicity, popularity, increase in sales or product, etc.

But I don’t think its fair. Then again, some may argue that because the copyright owners allow for the upload then they are in fact giving permission for the use and therefore it is no longer considered a copyright infringement. I disagree. The owner is not giving permission for use. The owner is actually giving permission to allow “the infringement” to be uploaded. It is still a copyright infringement because the person uploading the video never got permission from the owner prior to uploading the video. 

Why is such discretion given to either allow or deny copyright infringement anyways? This discretion is what I call a form of discrimination in actuality. Whether an upload will bring profit or not to the copyright owner, an infringement is against copyright laws. It is still an infringement. It is unfair to punish some and not others. The subliminal message implied by copyright owners is “Hey, you can infringe my copyright only if you can make it profitable for me.”  -_-

I think that it’s an oxymoron practice to try to enforce copyright laws only when it’s convenient. Yes there are plenty of exceptions to copyright law such as The Fair Use Doctrine and The Creative Commons License, but the vague boundary line for consequences as a result of infringement demonstrate the necessary need for copyright reform. More importantly, I do not think that current copyright laws align with the new digital age era in which intellectual property is used, accessed, and shared nowadays.

Considering getting a trademark? "Think" again…it may not matter if you thought about it first

Can you imagine being told that you cannot file a trademark just because another group has become more popularly associated with the name you want to trademark?

Imagine you are the owner of a record label and one of your artists is a local popular group named Sacred. After nine years of association under the group name, the group separates. All of a sudden, a different group breaks on the screen and becomes a popular sensation, but they are also named Sacred.  

At this point, you try to trademark the name of your former group, but the other group tries to get the name trademarked as well.

How will it be determined as to whom the owner of the group name legally belongs to? Well, courts seem like they are directing their reasoning objectively regarding this issue. Interestingly, unlike tangible intellectual properties like copyrights and patents, you cannot actually touch a trademark. Therefore, who is to say that a word, name, or phrase, is actually yours? How can a person prove that he or she is the owner of an intangible trademark that is in a sense, just a thought or idea?

A recent court decision has ruled that the in the event where more than one person tries to trademark the same name, the owner will be determined objectively. Meaning, whomever the public believes to be the owner will be deemed the owner.

For example, if you, as the owner of the record label owner from above, wanted to claim legal ownership of the group name Sacred, the public must know you to be more associated with the name Sacred, for both its use and name, more so than the new sensational group. 

This may seem unfair to someone like the record label owner who had formerly used the name Sacred first, but, this is the way that courts are deciding these issues.

However, I think it is unfair to the extent that whoever used the name first should have the legal ownership of the name. But, that too, causes a problem if that is allowed. I see two perspectives for the reasons why problems might arise: Either the law should consider (1) If more than one person files for a trademark, allow the person who was first associated with the trademark to become the legal owner or (2) Protect the person who is more popularly associated with the name in order to prevent others from using the same name just to profit from it based off of another’s use of its popularity.

Perspective #2 is the reasoning for why the law seems to favor the objective approach for determining who a trademark owner will be. So long as it seems fair to the public is what seems fair to legislature when making these laws.

I think that both views stir up problems within trademark law. Is it more important to honor a person’s idea by allowing perspective #1 to outweigh perspective # 2 or is it more important to prevent people from using the name of a popular associated term, word, or phrase, just because they want to make a profit from the popular term, word, or phrase? 

I think this is just a difficult call to make...