Non-Lawyers Making Major Impact DAWN of the NON? PAUL WARD JUDGE ANNA HUBERMAN Big Challenge, Big RewardWell, we are certainly facing a changing world. And with it the legal industry is shifting as well, so you should not be surprised to see a change in our cover story. This month, we asked Paul Ward a long-time supporter of our magazine to speak to the future of “non-lawyers” in the legal industry. This is a truly insightful look into the future of the practice of law, and I hope to hear your thoughts. We also had the pleasure of speaking to Judge Anna Huberman about her career and the lifepath that shaped her perspective. Be sure to read her interview on page 18. I hope that you all enjoyed our last issue featuring the Ath- letes in Law. This fall, we will be bringing back our annual Vet- erans in Law issue. If you or anyone you know would like to participate, please reach out to me. I hope that you are all well and that you continue to enjoy our magazine. As always, we welcome your suggestions, sub- missions and thoughts. Happy reading, Ken Minniti EXECUTIVE PUBLISHER 480-219-9716 KMINNITI@TMMPUBLICATIONS.COM FROM THE Publisher Attorney at Law Magazine is published by: Target Market Media Publications Inc. Copyright ©2020, Target Market Media all rights reserved. Reproduction in whole or part is strictly prohibited. Advertising rates on request. Bulk third class (standard) mail. Although every precaution is taken to ensure accuracy of published materials, Attorney at Law Magazine & Target Market Media cannot be held responsible for opinions expressed or facts supplied by authors. Corporate Office : 5828 North 7th Street, Suite 200 Phoenix, AZ 85014 Phone (480) 219-9716 www.tmmpublications.com • info@tmmpublications.com Ken Minniti PRESIDENT & CEO Howard LaGraffe VICE PRESIDENT Caitlin Keniston EDITOR Jaqueline Dávila GRAPHIC DESIGN Susan Cushing Veronica Jauregui ASSISTANT EDITOR Dragana Kartalija ADMINISTRATION Bill Gallagher, DC, CMVI Stephanie Kinsey Emily LaRusch Billie Tarascio CONTRIBUTING EDITORS Nicole Anderson Daniel A. Kadin Ashley Stephenson Erica J. Van Loon CONTRIBUTING WRITERS Andrew Paul PHOTOGRAPHY Northern Alabama | Atlanta | Chicago | Dallas | Ft. Lauderdale Jacksonville | Los Angeles | Miami | Minnesota North Carolina Triangle | Ohio | Philadelphia | Phoenix | San Antonio Salt Lake City | Middle Tennessee | Washington D.C. STEPHANIE KINSEY CONTRIBUTING Editors EMILY LARUSCHBILL GALLAGHER , DC, CMVI BILLIE TARASCIO 4 ATTORNEY AT LAW MAGAZINE · PHOENIX· VOL. 12 NO. 4PROCESS SERVERS WE HAVE TWO SPEEDS FAST AND FASTER!! SERVING ALL OF ARIZONA ASAPSERVE.COM 480.821.1552 Court Filing Record Retrieval Private Investigations Skip Trace/Locates TABLE OF Contents 12 6 SCOTUS Opens the Door for ‘.com’ Trademark Protection in USPTO v. Booking.com By Erica J. Van Loon and Daniel A. Kadin 8 Why Nobody Should Know Your Password By Stephanie Kinsey 9 ASU Law Professor Outlines Critical Role of Water in World’s Biggest Issues By Nicole Anderson 10 The Most Important (and Overlooked) Person in Your Firm By Emily LaRusch 11 Advanced Zoom Techniques By Billie Tarascio 12 Dawn of the Non? Non- Lawyers Making Major Impact Cover Story 16 The Eight ‘Hamilton’ Quotes That Inspired My Legal Career By Ashley Stephenson 18 Judge Anna Huberman: Big Challenge, Big Reward By Susan Cushing 20 Mythology of Personal Injury: Failure to Diagnose By Bill Gallagher, DC, CMVI 5In a thoughtful decision recognizing the impacts of the online economy, the Supreme Court of the United States rejected a rule that would find “generic.com” trademarks as per se generic and therefore in- eligible for trademark protection. The 8-1 de- cision written by Justice Ruth Bader Ginsburg on June 30, 2020, opens the door for busi- nesses using “.com” or other top-level Inter- net domains to secure trademark protection. The decision reflects the evolving intellectual property landscape in response to technology and overall shifts to online commerce, which is accelerating due to the COVID-19 pan- demic. CASE BACKGROUND Booking.com, a digital travel company of- fering hotel reservations and other services under the brand and website domain name “Booking.com,” filed four trademark appli- cations for travel-related services that each included “Booking.com.” The United States Patent and Trademark Office (“USPTO”) and Trademark Trial and Appeal Board (“TTAB”) both found “Booking.com” was a generic term because “Booking” simply means mak- ing travel reservations, while “.com” is merely a commercial website. According to the USP- TO and TTAB, the “Booking.com” term was generic and therefore ineligible for trademark protection. After seeking review in the U.S. District Court for the Eastern District of Virginia, Booking.com introduced new survey evi- dence that prompted the district court to find that the consuming public believes that Book- ing.com “does not refer to a genus, rather it is descriptive of services involving ‘booking’ available at that domain name.” The district court found “Booking.com” is descriptive, not generic, and had acquired secondary meaning in relation to hotel reservation services. Thus, the mark was protectable. After the USPTO appealed, the Court of Appeals for the Fourth Circuit affirmed and rejected the USPTO’s proposed rule that com- bining a generic term with “.com” is generic. That decision was appealed to the Supreme Court. DECISION The Court first set forth “several guiding principles” that served as a backdrop for its opinion. First, generic names, which merely describe the name of a class of goods or ser- vices, do not distinguish between different producers’ goods or services and are ineligible for federal trademark registration. Second, for compound terms, “the distinctiveness inquiry SCOTUS Opens the Door for ‘.com’ Trademark Protection in USPTO v. Booking.com BY ERICA J. VAN LOON AND DANIEL A. KADIN 6 ATTORNEY AT LAW MAGAZINE · PHOENIX· VOL. 12 NO. 4trains on the term’s meaning as a whole, not its parts in isolation.” Third, the “relevant meaning of a term is its meaning to consumers.” The Court also emphasized “the Lanham Act’s focus on consumer perception” as a funda- mental rationale behind what is protectable under trade- mark law. Beginning its thoughtful analysis, the Court noted that consumers do not believe that the “Booking.com” term merely signifies the class of online hotel reservation ser- vices. For example, consumers do not consider Traveloc- ity, another online reservation service, a “Booking.com,” nor would consumers search for a “Booking.com” when looking for any online reservation service. Thus, the Court concluded that “[b]ecause ‘Booking.com’ is not a generic name to consumers, it is not generic.” The Court next addressed the USPTO’s proposed rule that a generic term combined with a generic top-level do- main (e.g., “.com”) is essentially always generic and ineli- gible for trademark protection. Citing “ART.COM” and “DATING.COM,” which are both federally registered marks, the Court observed that the USPTO’s “own past practice appears to reflect no such comprehensive rule,” and that imposing such a rule now could threaten to cancel exist- ing marks. The Court also found “no support for the PTO’s current view in trademark law or policy.” The USPTO attempted to invoke pre-Lanham Act SCOTUS precedent in Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598 (1888), which held that a generic corporate designation added to a generic term does not protect an otherwise unprotectable, generic term. Describing this argument as “faulty”, the Court noted that “gener- ic.com” terms “might also convey to consumers a source- identifying characteristic: an association with a particular website.” Notably, only one entity can occupy a specific domain name at any given time, supporting the funda- mental trademark policy of identifying sources of goods or services. The Court found further reason to reject the per se rule after reiterating that the “bedrock principle of the Lanham Act is incompatible with an unyielding legal rule that entirely disregards consumer perception.” True to the fundamental policies underlying trademark law, the Court held that bright-line rules either prohibiting or automatically allowing “generic.com” terms are inap- propriate and that the inquiry is “whether consumers in fact perceive that term as the name of a class, or instead, as a term capable of distinguishing among members of the class.” While survey data, similar to what Booking. com presented to the district court, may help answer that question, Justice Sotomayor’s concurring opinion noted that surveys are only one possible source, in addition to “dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a terms’ meaning.” The USPTO and Justice Breyer’s dissent expressed concerns that affording “generic.com” trademark protec- tion would hinder competitors and support monopolis- tic behaviors. However, the Court stated that these con- cerns, which are implicated in any descriptive mark, are adequately addressed by other trademark policies such as infringement, likelihood of confusion, and “crowded field” analyses, as well as the classic fair use doctrine. The strength or viability of a “generic.com” mark is separate from whether such a term may be entitled to federal trade- mark registration at all. The Court also noted that other doctrines such as unfair competition are not substitutes for the greater protection afforded to federally registered trademarks. Thus, the Court found “no cause to deny Booking.com the same benefits Congress accorded other marks qualifying as non-generic,” and affirmed the Fourth Circuit. IMPLICATIONS The Court’s well-reasoned opinion adheres to fundamental trademark principles while recognizing how the internet and online marketplaces have changed commercial landscapes. Rejecting the USPTO’s proposed per se rule affords businesses (largely on- line ones) using “generic.com” terms the same opportunities for securing trademark protection for their marks. The Court’s rejection of a bright-line rule automatically prohibiting or al- lowing such marks highlights the im- portance of consumer perception in ascertaining whether or not a term is protectable. Further, this decision provides a measure of clarity for potential ap- plicants who can gather anticipatory evidence through surveys, term usage, or other sources to demonstrate the terms are non-generic, allowing them to better position their trademark applications as well as the strength of their marks in the online economy. Finally, while this decision would be significant in any time due to the internet economy’s continuing growth, it may be especially timely given increases in online com- merce due to the COVID-19 pandemic. This decision provides greater clarity for businesses seeking to establish or increase their online presence, while also providing a framework for parsing what may likely become increas- ingly crowded fields online. ERICA VAN LOON IS A PARTNER AT LATHROP GPM, WHERE SHE LEADS THE INTELLECTUAL PROPERTY LITIGATION PRACTICE. DANIEL KADIN IS AN ASSOCIATE AT LATHROP GPM, WHERE HE FOCUSES ON INTELLECTUAL PROPERTY LITIGATION PRIMARILY RELATED TO PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET, AND COMMERCIAL MATTERS FOR A WIDE RANGE OF INDUS- TRIES. BOTH ARE BASED IN THE FIRM’S LOS ANGELES OFFICE. The USPTO and Justice Breyer’s dissent expressed concerns that affording “generic. com” trademark protection would hinder competitors and support monopolistic behaviors.” 7Your password is between you and your computer. There is never a good reason to share your password with anyone. This in- cludes your IT provider, your boss, your colleagues, or your office man- ager. Your password is your personal authentication, and once someone else knows your password, you can no longer prove your identity. Giving out passwords increases chances of com- promises that can lead to big costs to remedy. Here are some suggestions on ways to control and manage passwords at your business: 1. Use a self-service password reset and account unlock solution. This not only saves time but eliminates a security risk. Using a simple mobile app, employees can reset their work passwords themselves without call- ing IT for assistance. If you are relying on your IT to reset passwords, your IT should verify your identity before they can assist you. Resetting your password yourself saves time and re- duces security risk. 2. Use a password manager. This is a platform for safely and securely stor- ing passwords. Business-grade pass- word managers provide an environ- ment where your administrator can control employee permissions and the ability to revoke access upon ter- mination. Choose a platform that al- lows a manager to “share” a password, without the em- ployee seeing the actual password STEPHANIE KINSEY | Technology Why Nobody Should Know Your Password Stephanie is the co-owner, CEO and CFO of Total Networks. The Total Networks team provides outsourced IT and strategic technology consulting to professional businesses. Their team is the first and only Arizona IT company to earn the CompTIA Security Trustmark, certifying that Total Networks meets or exceeds security best practices. For more information, email Stephanie at skinsey@totalnetworks.com. Give Me A Hint! 65% of business managers admit to recording their passwords on a physical document like a post-it note or sharing it with others. If the device is lost or stolen, these physical clues make accessing sensitive data a breeze (they only see ************). Pass- word managers can provide robust reporting and auditing tools to en- force internal controls and maintain compliance standards. 3. Use a different password for ev- ery login. If you are using a password manager, the tool will include a ran- dom password generator. Or you can type a bunch of random characters on your keyboard and let your password manager remember it for you. 4. Use a long phrase for passwords you need to remember, such as your master password. Strong passwords are long; the more characters you have, the stronger the password. Total Networks recommends a minimum of 14 characters in your password. In addition, the use of passphrases (pass- words made up of multiple words) is strongly encouraged. Examples in- clude “footer rumbling renewal free- bee” or “block-curious-sunny-leaves.” Passphrases are both easy to remem- ber and type yet meet the strength requirements. Avoid using birthdates, addresses, phone numbers, or names of family members, pets, friends, and fantasy characters. 5. Do not use the “Remember Pass- word” feature of applications (for example, web browsers). The reason for this is if a criminal ever got access to your computer and browser, they would have the keys to the kingdom. Password managers require that you enter your master password first. 6. Always use Two-Factor Authen- tication for Business Accounts. Multi-factor authentication (MFA) requires one factor, such as a pass- word, to be com bined with another factor such as a code texted to your mobile phone, or biometrics, such as your fingerprint or voiceprint iden- tification or retina scan to gain ac- cess to your account. Multiple fac- tors are generally: (a) something you know (password), (b) something you have (phone), or (c) something you are(biometrics). You want your systems to be sure that it is really you and not a hacker pretending to be you. Following these tips will go a long way to reducing your risk of a breach. 8 ATTORNEY AT LAW MAGAZINE · PHOENIX· VOL. 12 NO. 4There is no magic wand that can solve all the world’s problems. But water might be the closest thing. In his new book, Rhett Larson, the Richard Morrison Professor of Water Law at the Sandra Day O’Connor Col- lege of Law at Arizona State Universi- ty, explains how water is the common element in so many of humankind’s most pressing challenges. Released in April, the book titled “Just Add Water: Solving the World’s Problems Using Its Most Precious Re- source” was written in part to correct widespread misconceptions about the scope of water law, something Larson has been dedicated to his entire pro- fessional life. “People will ask me what sort of law I teach, and I’ll say water law,” he said. “And they’ll often say, ‘Oh, well that’s very narrow.’ And I’ll just think, ‘Narrow? How can water law be nar- row?’ Most of the world — and most of us — is water. What area of law could have broader importance and a broader impact than water law? So in some ways the book is about showing people just how central water is to vir- tually every problem on Earth.” To illustrate the point, Larson ad- dresses social challenges chapter by chapter in his book, underscoring wa- ter’s impact on a wide range of issues. For some, such as climate change, the connection to water is readily appar- ent. But perhaps less so for issues such as racism, gender inequality, terror- ism, war, mass migrations and space travel. “Water is at the center of all of those problems,” Larson said. “So if we were to pick any problem on Earth to in- vest our time and energy into fixing, looking for the most impact in as many areas of our lives as possible, if we would just focus on water security — helping every person have enough clean water at acceptable costs and risks — that would go further in solv- ing more problems than any other in- tervention we could have.” Larson finished writing the book in September, several months before the first whispers of coronavirus be- gan. But the book includes a prescient chapter on the pivotal connection be- tween water and outbreaks of infec- tious disease. The issues involving water and public health are complex and require due diligence and a delicate balanc- ing act. Larson suggests allowing for emergency permitting procedures, which could result in greater water pollution, at least in the short term, in order to expedite actions intended to combat disease. He also recommends a public health analysis for any water infrastructure projects. Just as any large public works project is preceded by an environmental impact assess- ment, the ultimate impact on public health should be studied in advance of constructing canals or dams. Larson also stresses the importance of integrating local stakeholders into decision-making processes on water policy. As example, he points to the devel- opment of a drinking-water treatment system in a developing, small village. “If there’s a lot of organic pollu- tion in that river and you treat it with chlorine, there’s going to be disinfec- tant byproducts. But the reality is that in that community, they don’t have the luxury of worrying about getting cancer in 60 years — they’re worried about getting cholera tomorrow. So when we develop systems, we need to think about what the water quality standards should be in order to meet the concerns of that particular sys- tem. And if we have to trade off con- cerns … sometimes that’s a trade-off you have to make. And the only way to make it is by integrating local feed- back and local stakeholder participa- tion.” Closer to home, Larson points to the current plight of the Navajo Na- tion – which spans portions of Ari- zona, New Mexico and Utah. Despite a largely rural landscape with low population density, the Navajo Nation has the highest per capita COVID-19 infection rate in the country, surpass- ing even New York City. It seems an anomaly for such a sparsely populated region to be so hard-hit by a disease spread by close human contact. But once again, Larson says, water is a critically important factor. “They have small communities that are spread out very far, and it’s diffi- cult to provide a sustainable, afford- able, adequate water supply,” he said. “So it’s hard for people to be able to get enough water for the kind of hygiene that’s needed to fight this disease. And hygiene, washing our hands, is the most important thing that we can do.” Larson points out the luxury that many Americans may take for grant- ed, having nearly unlimited access to clean water from multiple points in our homes and businesses. “One of the best ways we can help our neighbors and our family in the Navajo Nation, and to make sure that this never happens again, is to find a way to get more resources to them, to be able to improve their water infra- structure and improve water security,” he said. ASU LAW PROFESSOR Outlines Critical Role of Water in World’s Biggest Issues BY NICOLE ANDERSON 9Next >