COVID-19 catalyzed the telemedicine revolution, but the industry was already headed in that direction, albeit slowly. Today, electronic records, portal appointments, and more, increasingly rely on software and technology to provide care to patients. While this makes it easier for high-risk patients to avoid exposure to pandemic viruses, it also creates problems for providers, specifically when they are required to observe patients over small screens and poor feeds.

Telemedicine lawsuits are a risk for most healthcare providers today. In this article, we’ll discuss some of the most common risks that telemedicine creates.

Issues With State Laws

Specific aspects of medical law are drafted at the state level. When a doctor or clinic takes an out-of-state patient, this can create a legal snarl for them. Since doctors are given licenses by individual states, they may be breaking laws without realizing it. If a patient is injured, they may be able to file a malpractice lawsuit against the doctor and allege legal wrongdoing. It is a consideration that those who provide telemedicine will have to consider when dealing with out-of-state patients.

Data breaches

Data breaches, hacking, and ransomware remain major problems for companies that provide telemedicine. Even hospitals are potentially susceptible to ransomware attacks and lawsuits have been filed over deaths caused by service outages. Data breach lawsuits within the healthcare industry are complicated by HIPAA legislation that gives rise to lawsuits against healthcare providers. With more patients relying on portals, a software failure can result in a medical malpractice lawsuit. Problems with electronic records are also giving rise to more medical malpractice lawsuits.

Diagnostic Errors

Diagnostic errors remain the most common type of medical malpractice lawsuit filed against doctors and health care clinics. Telemedicine does not make diagnostics any easier. In fact, it is likely to make diagnostics harder.

Informed Consent

Medical providers can run the risk of medical malpractice lawsuits if they do not inform a patient concerning the risks of telemedicine versus in-person appointments. If a patient is injured due to something missed in a telemedicine appointment, then the patient may have grounds to sue on the basis that the telemedicine appointment was a substandard form of care. Medical providers are expected to know when telemedicine could be potentially dangerous to a patient and err on the side of caution.

The Biggest Problem With Telemedicine is…

A lack of regulatory infrastructure. While telemedicine has been around since the 1950s, Americans are relying on it more now than ever before. This means that the number of telemedicine-based malpractice lawsuits is increasing. On the plus side, telemedicine allows patients access to the best quality care even if they cannot physically make it to their appointments.

Nonetheless, the regulatory infrastructure has yet to keep up with the increased demand for telemedicine leaving patients, practitioners, and even attorneys and the courts in the dark about what standards should apply.

 

Talk to a Los Angeles Health Care Civil Defense and Corporate Attorney Today

Corporate attorneys protect your business from lawsuits well before the lawsuit is actually filed. Call Carbon Law Group today to discuss your needs and we can prepare a plan to protect you from telemedicine lawsuits.

 

What are NFTs again? 

Non-fungible tokens, or NFTs, are a form of digital collectible. While they can be copied and reproduced, the original is secured on a blockchain just like Bitcoin. The first NFTs were digital trading cards that could be traded and collected, even sold online. Today, you can make NFTs out of just about anything, including different types of original artworks. But if anyone can copy them, how do you enforce the copyright?

Recent Copyright Lawsuits Involving NFTs

In a recent lawsuit filed by the creator of Bored Ape Yacht Club NFTs, a “satirist” is accused of copyright infringement after creating NFTs that look substantially like Yuga Lab’s Bored Ape NFTs. These, known as Ryder Ripps NFTs, are at the center of a copyright infringement lawsuit. Yuga Labs, the progenitor of the original Bored Ape NFTs believes that Ryder Ripps is sowing the seed of confusion by mixing his satirical spin-offs with the highly-profitable NFTs created by Yuga Labs.

Yuga Labs is demanding Ryder Ripps cease production of the offending NFTs and compensate the company for financial losses related to the confusion surrounding Bored Ape NFTs. If another company is producing a similar copyrighted product making it difficult for collectors to tell the difference between the original Bored Ape and the spin-off, that could dilute the value of their collectible.

Specifically, What is Ryder Ripps Being Accused of?

They are being accused of ripping off Bored Ape’s original work, connecting it to a different blockchain token, and then selling it at a fraction of the value of the original collectible. They contend that the only point of the effort is to cause financial harm to Yuga Labs. In other words, the satirist is accused of profiting on the popularity of the Bored Ape NFT and defrauding consumers at both their expense and the expense of Yuga Labs. Ryder Ripps is also accused of setting up a copycat Twitter account to further sow confusion in consumers. The fraud element is among the most important allegations made against Ripps who contends that all purchasers are required to sign a disclaimer acknowledging that the product is a satire against the Yuga Labs variation and not meant to be passed off as an original. 

Where do we stand in NFT-related copyright issues? 

Some popular NFT projects have been released with no explicitly written copyright terms (not the Board Apes – its terms and conditions say “You Own the NFT. Each Bored Ape is an NFT on the Ethereum blockchain. When you purchase an NFT, you own the underlying Bored Ape, the Art, completely.”) This creates great legal risk for all concerned. These NFT sales merely convey a license to use the digital copy of the creative work, and the copyright holder retains their copyright ownership. This means that ownership of the virtual art piece is not guaranteed when one buys an NFT. The digital governing contract covering the sale of NFTs must expressly provide for an assignment of copyright in a signed writing for the buyer to actually own the copyright in the art. Without such a signed written instrument, someone could approach an NFT series’ creator and buy the underlying copyright to the artwork, then sue the NFT’s purchasers for putting the images in their profile pictures — because there’s no license explicitly granting them the right to do so.

Using intellectual property without the rights owner’s permission is called infringement, and an NFT creator can be sued for it. Some NFTs create copyright trouble by using artworks stolen from artists, or famous works that the NFT creators have no connection with and no license to use from. Copying these works as part of the NFT marketing (e.g. for OpenSea listings) can be copyright infringement. An NFT creator could be engaged in false advertising by implying that NFT owners will receive rights alongside these stolen works. And because copyright infringement is a “strict liability” claim, NFT owners who make copies of stolen art could also be liable for infringement, even if they were misled by the original NFT creator/seller into thinking that they own the rights to the underlying artwork.

While there is certainly a lot of confusion over what is and is not permissible in our Web3 future of the age of digital collectibles, profiting off another company’s intellectual property remains actionable under the law. 

Talk to a Los Angeles Intellectual Property Attorney

Need to pursue someone for profiting off your intellectual property? Call Carbon Law Group today to schedule a free consultation and learn more about how we can help.

Okay, the crypto market has recently plunged and is struggling to regain upward momentum, but the technology that it is based on is not going anywhere. That is because the distributed ledger technology is incredibly useful for ensuring the crypto currency cannot be counterfeited. Today, distributed ledger technology has broad applications across several industries. It is becoming more commonplace for start-ups and businesses to establish funding by using an initial coin offering (“ICO”). These are both similar and dissimilar to common securities. In some cases, ICOs actually count as securities. In other cases, they do not. This can create legal snarls for those who choose to use ICOs to fund projects. In this article, we will discuss ICOs and how they work under U.S. law.

What is an ICO?

An ICO is an IPO that uses cryptocurrency and technology. Typically during an ICO, a company can raise money by creating a website and publishing a white paper (a document that describes the project). Investors exchange cash or cryptocurrency (e.g. Bitcoin or Ethereum) for digital tokens that the startup has created. However, not all ICOs are the same and this is where it gets tricky for some businesses that accidentally find themselves facing a securities fraud lawsuit because they mismanaged their ICO.

The laws and regulations that apply to an ICO depend in part on whether the token offering is a financial product like shares in the company. Only some ICOs are considered securities, for example, equity token that provides an ownership stake in the company. Investors of equity tokens are buying an ownership interest in the venture. Other ICOs offer special options or rights or access to products. The latter are not considered securities and are not currently regulated. While the former is regulated by the SEC. This has created confusion among investors.

The terminology employed by the experts is Equity Tokens and Utility Tokens. Equity tokens offer shares of the venture while utility tokens offer special access to the company, the right to purchase company products at a discount, or the right to purchase stocks at a discounted rate at a later time.

ICOs are controversial only because some have fraudulently sold utility tokens as equity tokens. While some have turned an enormous profit on ICOs and many businesses have established themselves through ICO funding, it is still a bit of a Wild West and there is a lot of confusion over the tokens themselves and what rights investors have when purchasing these tokens.

The future of crypto may not be currency

The reason why crypto is wildly unstable is that it is not useful as an actual currency. Transaction speeds are quite slow and would only become slower once they are scaled to a modern economy. The costs related to the transactions are also exorbitant as they require “mining.” Anyone who provides the hardware to mine the currency gets a share of the transaction.

Nonetheless, the sky’s the limit. In the future, you may be able to place valuable commodities in your wallet and purchase gasoline with them. Imagine using your Mickey Mantle rookie card to purchase groceries. Crypto allows fractional trading on commodities that allow you to borrow against valuable assets.

Talk to a Los Angeles Corporate and Securities Attorney Today

Want to launch an ICO? Carbon Law Group can help. Call today to learn more about how we can help you establish funding for your project and avoid legal pitfalls that derail ventures.

The metaverse refers to an immersive digital world where users can interact with different spaces, people, and things using digital avatars. It creates virtual settings that mimic the real world where people can deal with, wear, and touch branded goods and services. In this setting, would the use of a trademark infringe the rights of the trademark owner for those equivalent goods or services in the real world? The question is yet to be answered by the courts, but definitely an important one for trademark owners to consider. Also, as the NFT (“Non-Fungible Token”) industry, which involves digital assets that can be used across different metaverse spaces, continues to flourish, should trademark owners start expanding their trademark filings to secure their trademark rights and presences in the metaverse?

Merriam Webster defines an NFT as a unique digital identifier that cannot be copied, substituted, or subdivided that is recorded in a blockchain and that is used to certify authenticity and ownership. In other words, an NFT is the digital version of a certificate of authenticity, embodied in the blockchain. A trademark can be “any word, phrase, symbol, design, or a combination of these things” that identifies and distinguishes the source of goods or services from competitors in the marketplace. Federal trademark law provides many protections for trademark owners, including the ability to sue for infringement where third-parties use their trademarks in ways that will likely confuse consumers about the source of the goods or services. Therefore, trademark laws protect brand owners, including brands that do businesses in the metaverse and businesses that sell NFTs, who can be protected by their registered trademarks when someone else uses the same or similar name or logo.

Although to most people the metaverse and NFT still represent mysterious new arenas of potential opportunities, there have certainly been signs of the momentum of their rising popularity. Therefore, trademark owners must be mindful of the potential for infringers, many anonymous and foreign-based, to prey on their trademark rights in the metaverse or using NFTs. 

Lately, there has been a trend of blockchain and NFT-related trademark filings by large global companies. For brand owners, particularly those well-known in consumer goods markets around the world, it seems wise to consider securing trademarks in the metaverse space to get their foot in the door, and as a powerful defensive strategy to combat infringers in the metaverse, especially in first-to-file jurisdictions where trademark squatting is prevalent and it is critical to file early. 

For example, Nike Inc. applied for a suite of new trademark applications in the US for some of its most well-known marks including NIKE, Just Do It, and the AIR JORDAN logo, covering various goods and services in classes 9 and 42, including downloadable virtual goods in class 9 and retail store services featuring virtual goods in class 42. Crocs, Inc. applied for a trademark in classes 9 for downloadable digital media, namely, digital assets, digital collectibles, digital tokens, and non-fungible tokens (NFTs); class 35 for retail store services and online retail services featuring virtual goods…provision of an online marketplace and registry for buyers and sellers of digital assets, digital collectibles, digital tokens and non-fungible tokens (NFTs); class 41for entertainment and amusement, namely, provision of online non-downloadable virtual goods for use in virtual environments; and class 42 Providing temporary use of non-downloadable digital media, namely, digital assets, digital collectibles, digital tokens and non-fungible tokens (NFTs). NBA Properties, Inc., applied for registration of NBA TOP SHOT for “Downloadable virtual goods, namely, computer programs for the creation and trade of digital collectibles using blockchain-based software technology and smart contracts, featuring players, games, records, statistics, information, photos, images, game footage, highlights, and experiences in the field of basketball.” Opensea, which calls itself “The largest NFT marketplace” filed for trademark registrations in Class 35 for services including “providing an online marketplace for buyers and sellers of crypto collectibles” and in Class 42 for services including “creation of online retail stores for others in the nature of web-based service that allows users to create hosted crypto collectible and blockchain-based non-fungible token stores.” 

As the examples above demonstrated, many businesses have existing trademark registrations for their goods and services, but trademarks specific to the metaverse and NFTs may be getting more and more important now. The United States Patent and Trademark Office (the “USPTO”, as well as other trademark offices around the world) places goods and services into different “classes” under which the trademarks are classified.  Most of these goods and services in “traditional” classes do not cover digital goods and services in the metaverse or NFTs (which the USPTO classifies in classes 9 and 41, amongst others). As a result, it is important that businesses consider filing for relevant trademark applications for their goods/services in the appropriate classes to receive the desirable scope of protection.

It can be argued that existing trademark registrations for physical goods or services may cover the digital goods or services in the metaverse, but there are currently no statutory laws or case law that can confirm such argument yet. There are some newly filed cases, like the lawsuit that Nike filed against StockX’s NFT collection “Vault” that contains Nike’s trademark, and the complaint Hermes filed against Mason Rothschild for its NFT collection “MetaBirkin,” but these cases have not yet been adjudicated by courts. Thus, if your company is thinking of expanding your business into the metaverse or NFTs, it would be worthwhile to consider filing for relevant trademarks in order to be protected against infringement in these new arenas.

Lastly, a word of caution for any trademark owner thinking about expanding their business into the metaverse and NFT industries, be cautious when using any third-party trademarks or copyrighted work in an NFT (be careful when your logo was created by an independent contractor!). If any third-party’s brand name, logo, copyrighted work, or product is used in connection with creating an NFT, written permission (proper license) from the owner must first be obtained, or else you risk putting yourself in legal hot water. 

 

I have the privilege of attending this year’s Codex conference on the future of law at Stanford Law School. Codex brings together some of the leading minds using technology to move the law into the 21st century.

As a lawyer and law firm owner, I have a front-row view of the pain points plaguing not only consumers of legal services but also lawyers. While the answers to these challenges are to be debated (and perhaps more so in an industry where “debating” is our hallmark), the problems are real and need to be addressed. Where 80% of people in our country are unable to access legal services, entrepreneurs will figure out how to meet this demand. It is up to lawyers and legal innovators to decide whether they are going to step up to meet this need, or if they are going to continue to seek cover behind our walled garden. Carbon Law Group is committed to expanding our services to serve as many people in need of business and intellectual property support as possible.

As a member of the movement to improve the practice of law by leveraging current and future technologies, we look forward to a future where working with a lawyer will fulfill a deeper need for our clients and facilitate their growth.

Let’s get to work.

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Carbon Law Group, P.C.

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Carbon Law Group, P.C.

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