Monthly Archives

December 2021

Ready To Ring In The New Year

The McCoy Russell team worked incredibly hard, coming together and refining our collaborative processes in 2021. Our teams remained available to clients, but also to each other, and were able to further expanding upon the framework we laid out last year. We hold a deep appreciation for our clients, attorneys, technical specialists, and staff, for their support and efforts.

As our firm continues to adapt with the changing circumstances, we look forward to ringing in the new year and seeing the fruits of our labor come together in our new hybrid-collaborative office space. We will continue to innovate how our firm practices intellectual property law, pioneering solutions and structures to maximize the potential of our highly-skilled staff to the benefit of our clients.

McCoy Russell Collaborative Office Space as a Lifestyle Experience

While most law firms that survived the pandemic utilized remote working to some degree, McCoy Russell saw opportunity where others saw roadblocks. We have reimagined a thriving, vibrant, cutting-edge law firm office with spaces that take you out of the typical, traditional, and restrictive firm experience.

As we have been perfecting our remote working processes and technology over the last 18 months of the pandemic, we transformed our new Office suite on the second floor of the American Chicle Building in the Pearl District into a hybrid-collaborative space. Our design takes advantage of classic wood floors, fourteen foot exposed wood beam ceilings, and oversized windows bringing in beautiful natural light.

Employees have full flexibility in working remotely, or coming in and using one our collaboration pods to meet with colleagues or have a little break from their home office.  Our hybrid-collaborative space fosters teamwork and the sharing of ideas, and is equipped with both traditional workspace stations and more relaxed lounge type set-ups, thereby offering a variety of spaces to cater to diverse minds and enable employees to minimize commuting time.

Genericness In Crypto

Genericness In Crypto , Written by Devon Jenkins
Script Below

As part of McCoy Russell’s intellectual property portfolio education, this is Devon Jenkins here to break down some of the most exciting topics in the world of trademarks and branding.

With the current influence that internet memes, celebrity endorsements, and posts on social forums such as Reddit and Discord have on the market, at any given moment, many cryptocurrency coins are just one big break away from a meteoric rise in popularity. It would seem that for crypto companies, the more popular the currency, the better, right?

Well, not necessarily. Today we are diving into the question of whether it is possible to become “too big” to brand.

The key to receiving a trademark registration involving a cryptocurrency is ensuring that the mark identifies a source of goods or services being offered to the public. If consumers begin to associate the name or logo with a general term for digital currency, then the coin runs the risk of being deemed “generic”. Generic marks become part of the public domain, making them unavailable for private trademark protection. The coin that started it all, Bitcoin, may serve as a cautionary tale here, as Miriam-Webster now officially defines the popularized term as, “a digital currency created for use in peer-to-peer online transactions”. Accordingly, the USPTO now views the word Bitcoin as generic and merely descriptive of goods and services relating to online payments, rather than as a unique source-identifier.

At McCoy Russell, our trademark and branding team strives towards ensuring that our clients are able to capitalize on the massive global branding opportunities created by their marks.

To minimize the chances of being found generic, we advise our clients to always use their mark as an adjective modifying a noun. This helps to prevent the brand from simply functioning as the generic name of a product or service. For example, many coins currently operate on a blockchain created by the Etherium company. Unlike Bitcoin, Etherium has obtained multiple registrations across various trademark classes of goods and services, and is careful to describe its technology as the “Etherium blockchain”. Rather than Etherium being used as its own general term for the blockchain itself, it is used as an identifying descriptor for the technology.

While this concern may appear to be less of an issue for applicants whose cryptocurrency has not achieved the notoriety of a Bitcoin or Etherium, with alternative coins like Dogecoin becoming overnight global phenomenon, it is important for companies to start thinking now about how they can set up their branding in a way that avoids using their mark in a generic manner, and prevents it from falling into the public domain.

Thanks for watching and stay tuned for more news and tips in trademarks and branding from the McCoy Russell team.

Centralized Blockchain Trademarks

The invention of blockchain distributed ledger technology has sparked a technological boom that has unceremoniously thrust the legal system square into the middle of a new and rapidly evolving digital landscape. One field at the forefront of these massive changes is intellectual property, where the legal community is grappling with the unenviable task of outlining whether the names and logos associated with blockchain technologies, and the ever-growing network of cryptocurrencies that can be built off of such programs, serve source-identifying functions such that they are eligible for trademark protection. The United States Patent and Trademark Office (USPTO) has boiled this determination down to assessing (1) whether the proposed mark is associated with an actual good or service, and (2) whether the name or design functions to identify its source.

While the debate over whether blockchains and associated cryptocurrencies indeed qualify as protected goods and services rages onward, another battle over a proposed mark’s ability to show source has also presented a rather complex dilemma. Blockchains are digitally distributed ledgers which share bits of information among multiple computers. The pool of data creates “blocks” of information, which are cryptographically secured and authenticated before a new block of information can be added to the “chain”. The network of computers maintains a secured digital record of each transaction, and the computational work for validating such a transaction (often called “mining”) is then automatically compensated with newly-created currency. It is important to note that while different “types” of blockchain designs are now emerging, these core components will generally remain the same.

With that being said, at some point, all budding blockchain companies will have to ask themselves whether the intention is to build a network that is centralized or decentralized, which beyond security considerations, also has prominent implications when attempting to establish “source” for trademark purposes. The designation of “centralized” vs. “decentralized” has nothing to do with the distributed nature of any blockchain, as any such system will always involve some level of distributed ledger technology, but instead comes down to defining which parties have the ability to participate in mining functions and the rights of those who can transact. In the case of decentralized currencies like Bitcoin, anyone can transact on the ledger (provided that they provide “proof of work”), and thus the computational work can be completed by anyone the computing power to do so. Conversely, centralized networks only permit known and approved parties (usually owned by or associated with a specific company) to transact on the ledger, and because the parties are identified, the transactions can also be audited. In highly regulated industries, like finance, many prefer the security of knowing what entities are conducting transactions so that if anything deemed invalid does indeed occur, then the parties responsible can be identified. Centralized networks prioritize the ability to identify any attempts to corrupt the system through detailed inspections over the open anonymity native to decentralized chains.

Most cryptocurrency exchanges have embraced centralized blockchain networks, where companies operate as third parties to process the transactions between buyer and seller. In this instance in particular, companies are inuring themselves to the benefit of more reliability over more security. While this decision should not be made lightly, as there are horror stories like Mt. Gox, a centralized blockchain company which was hacked in 2014 in an attack that led to over $460 million in customer funds being stolen, it does tend to make the process of determining source for intellectual property purposes much simpler. Trusted centralized exchanges like Coinbase, Binance, and Kraken have all successfully registered trademarks in their associated companies’ respective names. In this sense, guidance from the USPTO tends to suggest that the more blockchain networks function in a standard way (i.e. as close to traditional banking as possible), then the clearer the path towards registration.

Given the complex considerations that must be made when determining the optimal way to structure and protect a blockchain company, it is important to speak with a dedicated trademark attorney to help find a strategy that works for your business. At McCoy Russell LLP, our trademark and branding team have the technical knowledge and experience that it takes to assist in traversing through these new and exciting times in law and technology. And on the patent side, McCoy Russell attorneys are highly skilled in protecting the underlying technological innovations.

Focusing on Technology & Innovation

Many law firms perpetuate conventional approaches that are ingrained in their core. This keeps many firms from adapting to new paradigms and providing the best and most efficient legal solutions to their clients.

McCoy Russell fosters a climate of innovation as core to the firms’ culture. We are constantly driving to find ways to be more efficient through the use of new technologies and tools. And sometimes that means building it in-house.

One example of McCoy Russell’s innovative solution in the patent drafting and prosecution space is in cooperation with its software arm – IronCrow IP – and includes the internal development of AI-based software for efficiently and effectively improving patent quality. We use our tool to automatically review every patent application we draft. Some of our clients have been so impressed with it, that they have licensed it for their own use in-house.

Our diverse team, with wide ranging backgrounds and experiences, is key to our ability to innovate and bring our clients patent solutions like no other.

McCoy Russell Trademark Vlog Series

McCoy Russell is excited to announce our short vlog series that will explore some of the latest and most exciting topics in the world of trademarks and branding. Attorneys Devon Jenkins and Ryan Masters will be sharing tips, tricks, and how McCoy Russell’s trademark and branding team is prepared to help clients across various industries protect and develop their brand. We are excited to take this next step to expand our thought-leadership and highlight knowledge developed through our trademark specialty practice.

Check out our Trademark Vlog/Blog to see the topics we’ve begun to explore such as the recent changes to the NCAA’s NIL policy and our thoughts on navigating cryptocurrencies and branding.

Cryptocurrency, Source, and Trademarks

In what many consider to be one of the largest technological leaps since the invention of the internet, the emergence of blockchain technology has ushered in a new frontier across a multitude of fields. The implications of these secured digital ledgers is clear in the world of finance, where cryptocurrencies have gained global prominence, but the outlook for intellectual property has thus-far been a bit murkier. An interesting philosophical debate is now waging around some of the key tenets of trademark law. A major point of contention lies in the fact that trademark rights are only granted to those who can demonstrate that their mark is associated with a good or service in such a way that it functions as a source-identifier for the products offered. The concept of using a mark to identify the singular source of goods or services does not necessarily lend itself to a technology whose very ethos is based in a rejection of the very principles of centralization.

For those a bit confused on what exactly a blockchain is, welcome to the club. You are in very good company. In the most basic sense, blockchains are digitally distributed ledgers which share bits of data among multiple computers, as opposed to the typical process of having all data backed by a central server. This information creates “blocks” of data, which are cryptographically secured and authenticated before a new block of information can be added to the “chain”. In the case of decentralized cryptocurrencies, unlike with a government currency where a central authority controls printing and minting, there is no central authority tasked with performing these currency-producing functions. Instead, the network of computers maintains a cryptographically secured digital record of each transaction, and the computational work is then automatically compensated with newly-created currency. Given the recent rise in data hacks among major commercial and financial leaders, this idea of decentralization is particularly appealing to a public becoming increasingly mindful of cyber security.

With that being said, from an intellectual property perspective, the decentralized nature of these currencies calls into question some of the core doctrines of trademark law. As technology continues to change in new and often unforeseen ways, the USPTO has been forced to grapple with its interpretation of how to identify “source” in an increasingly digital world. The question at play is whether or not a system which by definition does not have a singular source, can still serve as a source identifier.

The USPTO’s focus is on determining (1) whether the proposed mark is associated with an actual good or service, and (2) whether the name or logo functions to identify its source (even if the actual source technically remains unknown). If a cryptocurrency is simply viewed as a store of value, or medium of exchange, then like a traditional currency, it may not be deemed to be a product or service, and if consumers view the mark as associated with a general currency, then much like Bitcoin, it runs the risk of being deemed generic. This creates a highly nuanced tightrope for applicants to traverse.

Given the general uncertainty over whether a cryptocurrency using decentralized blockchain technology can function to identify the source of a good or product, whether or not a mark is deemed acceptable for registration will largely come down to drafting a creative description of the goods and services offered. Our trademark and branding team at McCoy Russell LLP work to make sure that our clients get the most out of their intellectual property rights, and are here to assist in navigating this new and exciting landscape.