Editor’s Note: Jehan’Ad G. Martinez is a principal of the law firm Blair, Sterling, Johnson & Martinez. He provides
legal advice and representation to local and multinational enterprises in civil transaction and litigation matters, including intellectual property registration and enforcement and admiralty and shipping issues.
Martinez practices in the local and federal courts of Guam and the Northern Mariana Islands, as well as in the Ninth Circuit Court of Appeals. He, along with firm principal William Blair, co-authored a chapter relating to Guam Intellectual Property law in the “Intellectual Property World Desk Reference,” published by Kluwer Law International in 2004. He frequently lectures on issues relating to nonprofit governance and the duties and liabilities of corporate directors.
He has been the elected president of the Guam Bar Association since February 2015 and serves on a number of Bar Association and Judiciary of Guam committees as well as on the Standing Committee for Attorney Discipline for the U.S. District Court for the district of Guam. He also serves as the Guam correspondent for two of the world’s leading mutual protection and insurance clubs.
Martinez holds a bachelor’s in international business and finance from the American University in Washington, D.C., and a juris doctorate from Southwestern University School of Law in Los Angeles.
Q: Why did you choose to go into law?
A: I went to law school with the hope that getting a juris doctorate would accelerate my career advancement in the investment company I worked for after college. It was never my intention to practice law, but when I graduated from law school, the economy was weak and there were no job openings at my old company. I was left with student loans and no quick solution to my situation. I, therefore, had to become a lawyer to pay off my student loans and survive. In hindsight, I was fortunate to pick a degree that had reasonable growth potential.
Q: What are the plusses and minuses of the profession?
A: The advantages of being an attorney have been having access to decision makers and information, particularly high-level business information; the intellectual challenge that comes with clients’ opportunities and sometimes struggles; travel, which comes with my law firm’s multijurisdictional practice; meeting new, interesting and often times brilliant people, both attorneys and non-attorneys; and the earnings potential that comes with working hard and having a law practice. I would not suggest becoming a lawyer because of the earnings potential, but it is one of the reasons I am able to tolerate the negative aspects of the profession.
Some of the disadvantages are the high stress associated with strict deadlines, uncertain outcomes and client concerns. Long hours, both in and out of the office are required. There is also a lack of trust among certain lawyers. Lastly, there is the poor public image that lawyers have endured since ancient Greece.
Q: Has people’s interest in protecting their intellectual property grown in recent years, and if so, what do you think has contributed to that?
A: The short answer is yes. That is not to say that companies and individuals were not previously interested in protecting their intellectual property rights; they have always been. However, the interest is now deeper and broader than in the past. In my experience, it is not just large, sophisticated corporations trying to protect their valuable assets, but also entrepreneurs and garage startups.
I attribute this to three market developments. 1) People are becoming more educated about intellectual property rights and how valuable they are. They want to protect their hard work and investment in creating their intellectual property. 2) There are a great number of sources capable of making very good renditions of intellectually protected property, often at prices lower than the owner. Consequently, owners are seeing their sales go to competitors, stealing what they have worked hard to create and promote. 3) The attitude of many people under the age of 40 about intellectual property seems to be that if it is on the internet, it is free for anybody to use. This is particularly true in peer-to-peer sharing services, warez sites that illegally distribute copyrighted materials and internet forums, such as YouTube. These, and the advent of various inexpensive technologies that permit individuals to replicate and distribute products that are subject to copyright and trademark rights owned by others, make it very easy for individuals to usurp the rights of intellectual property owners.
Q: What types of intellectual property are most commonly contested in Guam and the NMI?
A: By far, intellectual property disputes on Guam arise from trademark infringement. Lately, this has been in casual wear — mostly T-shirts and baseball hats — auto decals, and other goods in which a local business uses a well-known trademark as the basis for their artwork or promotional materials. In the past we saw a great deal of activity in knockoff luxury leather and silk products, which we still see a bit of, and the illegal transfer of movies and music through peer-to-peer networks.
Q: What is one common misconception about trademarks and copyrights?
A: The misconception that “if it is on the internet, it is fair to use it any way I please.” This statement, which is quite common with younger people, whether explicitly stated or implicit in their actions, is absolutely untrue. Employing the phrase “fair use” does not fix the problem since that is a very narrow exception to copyright owners’ intellectual property rights. Original literary, artistic and architectural works that are affixed to a tangible medium, including an internet webpage, blog or social media are protected by federal law. Registering those works with the U.S. Copyright Office is helpful to protecting those works but is not absolutely necessary. Additionally, if the publication includes a symbol, word, phrase or packaging that is distinctly characteristic of, or identifies, a business or product, it may also be protected under federal, local and common law as a trademark. In either the case of copyrights or trademarks, the penalties that can be imposed on the infringer can be significant, or, as it has been described in case law, “draconian.”
Q: What are some major differences in Guam intellectual property law as opposed to elsewhere?
A: There are no significant differences between Guam intellectual property law and those in the rest of the United States. This is primarily because federal intellectual property laws are applicable in Guam with equal force as they are in the 50 states. Like many of the states and territories, Guam has an additional layer of laws that supplement federal protections. These include the Guam Trademark and Intellectual Property Rights Act, which enables local artists and inventors to register their intellectual property with the government of Guam. There is also the Guam Product Seal Law.
Additionally, Guam’s Consumer Protection Act incorporates regulations of the Federal Trade Commission, which further protect intellectual property, trade secrets, data privacy and other property rights not commonly associated with intellectual property by the general public. The only unique law amongst those that I have mentioned is the Guam Product Seal Law, which is designed to encourage local investment in product development, design and marketing on Guam.
Q: The types of law you practice are not common in this region. Why is that?
A: I do practice in areas that are not common because my firm’s clients need the assistance and because I have built a reputation amongst my clients over the years as being able to provide that to them. Our law firm is a general business law firm that provides legal counsel and advice to startups, individuals and well-established corporations, including Fortune 100 companies. Over the 40 years that the firm has existed, we have been asked to perform legal tasks that are a bit uncommon for the jurisdictions in which we practice. I am very fortunate that both my admiralty and intellectual property work has been consistent over time and continues to be interesting and rewarding.
Q: Have you noticed any trends in lawsuits in recent years — in the types or numbers of lawsuits filed, outcomes or otherwise?
A: I can’t say that there have been any trends in recent years, but there have been certain types of civil cases that have made cameos recently that may be more routine in the future. These include fiduciary duty cases, in which a director of a company is accused of improperly discharging his duties to the company, or doing something not authorized. We have also seen a number of procurement protests, which I would expect to continue until the government of Guam professionalizes their product and service procurement. Although it really doesn’t respond to your question, I have been a bit surprised that we have not seen more taxpayer lawsuits against the government for perceived misuse of public monies. The tax refund case and earned income tax credit suits are the most prominent recent cases in this general category.
Q: What are your primary goals as president of the Guam Bar Association in the coming year?
A: Because the administration of the Guam Bar Association was returned to the Board of Governors on Oct. 1, 2015, we no longer have full-time employees to provide services to the bar’s membership or to the public. To bridge that gap, the bar is going to roll out a new website that will provide more interactivity with its membership and offer the public more information to assist in locating an attorney appropriate for their needs. It should also help the public file complaints against licensed lawyers or persons who are practicing law without a license, as well as provide periodic news about the legal community. We hope that a more robust website will help our constituents and the public interact with the Bar Association in a productive way. In addition to the new website, we are working on bringing more, and more varied, continuing legal education opportunities to our members.
Q: What are our islands doing right to encourage and foster the next generation of lawyers, and where are we falling short in this area?
A: I cannot say that there is a concerted effort to encourage the next generation of lawyers. However, the Guam Bar Association, in conjunction with the Judiciary of Guam and the U.S. District Court of Guam invests a great deal of effort in Law Week activities, which includes the mock trial performances of Pre-K, elementary and middle school students. The bar’s members, along with the Judiciary, are active in coaching and judging high school mock trial competitions. We also periodically participate in public roundtables relating to legal issues and the practice of law. I believe that these activities, not necessarily designed to convince our residents to become lawyers, have that effect nevertheless. mbj