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Aubergines Winter 2012

New HS&F Faces:

Erica Roman

Meet The CEO:
Jenny Lewis of Strike Brewing Co.

Intellectual Property
Copyright Laws: What Are That Good For, Anyway?

So C.Y.A. and cover your assets. And oh, did I mention that HS&F now has a former U.S. Copyright Office attorney on board who can help you identify your copyrightable materials and secure your registrations?

Real Estate:
Trump’s Trompe-L’oeil: The Denouement

The Pop-up Phenomenon: Could it Portend More Potential Than Social Media?
Letters To The Editor


erica romanErica Roman has joined HS&F as a consulting attorney, bringing with her specialized experience in copyright law and intellectual property transactions.

Erica has recently returned to the left coast from a stint in Washington, D.C. where she served in the Office of the General Counsel of the U.S. Copyright Office. During her time on The Hill, Erica was involved with all aspects of the Copyright Office from legislative to executive matters, and from contested copyright applications to Freedom of Information Act requests.

Prior to that, Erica was in private practice at Gray Cary Ware & Freidenrich LLP, the predecessor to DLA Piper LLP where many of us worked. As part of that firm’s Intellectual Property Licensing Group, Erica drafted and counseled clients regarding the various agreements that span the life cycle of an intellectual property including development, manufacturing, marketing, end-user, license and transfer agreements. She also has experience with standards-setting organizations.

Erica holds a degree in psychology from Yale University and a law degree from University of California, Hastings. Erica grew up in Los Angeles where she was dancing in the movies by age nine. Nowadays, when she’s not practicing law or busy raising two young daughters, you may find her supporting and sometimes even performing – she sings, too – in the Bay Area jazz scene.


jenny lewis strikebrewingToday our Editor interviews Jenny Lewis, a freshly-minted MBA who satisfied her master’s thesis requirement by presenting a business plan for starting up a micro-brewery. Jenny didn’t wait until finishing her thesis, though. While still attending classes, she was busy laying plans for the Bay Area’s newest micro-brewery, Strike Brewing Co., where she is the CEO and Co-founder. www.strikebrewingco.com

Editor: You grew up in Silicon Valley. And your dad is an engineer who worked for tech startups. Do you think that the highly entrepreneurial atmosphere of Silicon Valley had an influence on your choosing to create a micro-brewery startup?

Jenny: Watching and learning from my dad, plus living near legendary Sand Hill Road has definitely influenced me. But I’ve always been fussy about how traditional American beers can be so bland and uninteresting. They are really just good for beer pong… and I swear I was 21 when I learned what that game was. So, armed with that information, I decided to put my lager glass where my mouth is.

Editor: So, are Strike’s beers really all that different from all the others? And there seem to be so many out there to choose from now.

Jenny: That’s exactly the point. There are lots out there now, but everyone is looking to drink “local.” And that’s what we want to give the South Bay. I studied a good portion of the beers out there, and tasted a few along the way. I came away convinced that while there were many good brews out there, Strike’s beers have a deep-throttled taste, a prudent use of carbonation, a subtle hint of exotic spices and are not at all filling. Strike’s taste is very unique. Here, try some.

Editor: Say, that’s quite alright. I think I detect a pairing of tamarind and litchi nut, and quite possibly a hint of nutmeg and coconut. Am I close?

Jenny: No, you’re quite far off. Did you just have lunch in a Vietnamese restaurant?

Editor: Let’s talk a little bit about how the public is responding so far to Strike Beer. Are you doing well enough yet to consider taking out a half-time TV ad for the Super Bowl?

Jenny: We are off to a very good start. We’ve been producing beer since December of 2011. We are signing up retail outlets and restaurants at a rapid rate. And we are working on distributorship deals that will enable an even more rapid scaling of revenues. Despite my fancy CEO title, I’m hoofing around a lot to customers and prospects, and I do a lot of the delivering and cleaning of beer lines, which I’m not the quickest at. As for the Super Bowl ads, we’ll leave that kind of marketing to the jumbo beer companies. We prefer going to beer fests, utilizing social networks like Facebook and Twitter, and plain, old-fashioned cold-calling.

Editor: How are you positioning your beer to potential customers?

Jenny: Our positioning is unique. We stress that Strike offers a more wholesome and vigorous image of the typical craft beer drinker because Strike has been created to become THE brand synonymous with an active, adventurous lifestyle. Strike’s fine small-batch, hand-crafted beers are intended for athletes and outdoor enthusiasts to celebrate their thirst for the active lifestyle, as well as encourage others to live a more active lifestyle.

Strike was founded by three athletes with a passion for craft beer. I was a varsity swimmer for Rice University. Drew Ehrlich, a former varsity baseball pitcher for Stanford and for the Boston Red Sox AA team, is our Chief Brewing Officer. Ben Lewis, a former San Jose State and Menlo College varsity baseball pitcher, will assist with sales and marketing. I’m a veteran of two food/hospitality startups as well as internships in the fine dining and liquor distribution businesses.

I’m also one of very few women CEO’s operating a U.S. brewery. I bring the perspective of women beer drinkers, especially those that are active with running, volleyball, softball and cycling.

Editor: I gather that you are targeting the Bay Area market now. I’ve seen some of your shout-outs on Twitter and on entertainment websites.

Jenny: Yes, we are heavily targeting the active Bay Area community. Strike believes in promoting a healthy lifestyle through activity, and being at the forefront of community involvement. Our support of those who have chosen to live this active, healthy lifestyle centers on sponsorship of running and cycling clubs, triathlons, marathons, athletic events, and amateur sport teams.

Strike’s target consumers are adventurous, competitive, action-oriented and goal-driven. They seek out places to be with family and friends, events to participate in, interesting foods to taste, and great beer that represents their lifestyle choice. Strike drinkers are not seeking a low calorie option. Strike’s distinctive flavor and high level of thirst satisfaction – the hallmarks of a great craft beer – have been earned. The Bay Area is an ideal market to find great numbers of people of the type we are aiming to reach.

Editor: Isn’t this a bad time to start a new brewery? The economy is still in a recession, and recovery seems to be very slow.

Jenny: This is a great time to start a brewery. People will always drink alcohol. Plus trading up to a better beer is cheaper than trading up to a better wine. $1.00 a 6-pack goes a long ways. Despite a slumping economy, the craft beer industry has continued to grow and increase its profitability. Since 2009, microbreweries opened in the Pacific Region have demonstrated a 98.6% success rate. With beer being the most widely consumed alcoholic beverage nationwide, nearly 85% of volume, there is a fast-growing appreciation of and desire for fine craft beer.

Editor: OK, enough already. Where can I buy some Strike? I’m totally sold.

Jenny: Up in the Mid-Peninsula area, Draeger’s Markets, Willows Market, Driftwood Market, JJ&F Market, and Piazza’s Fine Foods are carrying Strike. For restaurants, First & Main in Los Altos and The Fish Market in Palo Alto are carrying it on tap. Be sure to tell them Jenny sent you.

by Erica Roman

If you have traveled around the business world long enough, you have probably stepped in it – copyrightable subject matter, that is. This valuable asset is often overlooked by non-technology companies or, worse yet, discarded like day-old sushi by tech companies frothing to increase their patent portfolios. (By the way, you really can keep sushi quite well for one extra day by covering it with a damp paper towel and placing it in the fridge, but I digress.)

The Copyright Act defines copyrightable subject matter as “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

When you get the lawyers out of the way, what this clunky definition means is that if you’ve created something you can see or touch, you can probably protect it and have the opportunity to profit from it.

Copyright can protect anything from writings and recordings to prints and sculptures – not to mention a bunch of other stuff like mime work, but they are probably used to the silent treatment anyhow. While to artists, a copyrightable work may mean the Great American novel, a mediocre pop tune, a sepia photograph and a psychedelic vase, to a commercial company it can mean website content, a training seminar, cool graphics and certain product designs.

The bar for getting copyright registered is set fairly low. The “work” (whatever you made) just has to be “original” (you didn’t copy it from someone else), “fixed” (it’s on paper, a disc, molded in fruit cake or woven into your dreadlocks) and “authored” (you put a modicum of creativity into making the work).

Sure, the minimalist artist trying to register a white canvas with a single black dot in its middle is going to face a serious challenge. Artistic values aside, a sizable portion of what exists on your work computer has a good chance of qualifying for copyright protection.

But isn’t a patent what I really want? Glad you asked. Sure, go for it, if your work meets the much higher bar set by statutory requirements and you have years to wait and beaucoup bucks to file the application and litigate in case of infringement (in which case we have many other services to offer you including unlicensed massage therapy and questionable car repair).

But copyright is all about Bang for the Buck. The filing fees are relatively inexpensive, registrations can issue within a couple of months, registration is only required before you ask a court to stop an infringement, and once a work is registered, your cease and desist letters actually carry weight and you could be entitled to statutory damages upwards to $150,000 for infringement. Ah, I have your attention now.

Bottom line, copyrights are a business asset like office furniture or a letter of credit. Whether you are looking to grow your company by adding potential revenue streams through licensing, to distinguish your company by stopping unauthorized use of your materials, or to make your company look more attractive to funding sources or potential buyers by increasing the length of your assets list, you use what you have, and you probably have copyrightable material right on your desk.

So C.Y.A. and cover your assets. And oh, did I mention that HS&F now has a former U.S. Copyright Office attorney on board who can help you identify your copyrightable materials and secure your registrations?


Well, our much-talked-about on-again, off-again flirtation with Donald Trump about a potentially lucrative and high profile representation finally reached its, well, climax. After speaking through more middle-men, agents, gophers, gaffers and secretaries than even Lady GaGa must require, and enduring multiple appointment cancellations and re-schedulings, we finally got a chance to meet The Trumpster.

He came to our offices, but he didn’t look happy at all. He winced right away when he saw the curdling mold on our conference room wall, and made a point to sit as far away from the contaminated area as possible. Who could blame him.

Trumpy got right down to business. First, he demanded to see our birth certificates. Some might find this request odd, but because of our extensive due diligence on The Donald, we had fully anticipated this maneuver. Thus, we happily complied, and were told that we had easily aced his first test: all of us are American-mainland-born.

Next, Mr. T demanded that we cut our already-heavily-discounted rates in half. To this we offered surprisingly little resistance. It had been a slow week, collections were pitifully low, and the risk of a global financial meltdown seemed possible, if not certain, at the time.

Then The Donald demanded to see our law degrees. Sadly, this request had not been anticipated, and it caught us a bit off guard. We sheepishly explained that one of us had graduated from a “once-prestigious” night law school that since had shuttered its doors, and that another had graduated from an unaccredited (but “up-and-coming”) on-line law school based in American Samoa.

It got worse. The rest of us couldn’t find our law degrees, and one of us has been practicing so long he couldn’t even remember where, or if, he had gone to law school.

At this point our would-be “Marquis Client” (his words, not ours) just lost it. “You’re fired!” he screamed, apparently neglecting to recall that he hadn’t yet hired us. This was followed by a stream of unprintable New York style profanities and epithets that mainly centered on our mothers, our pedestrian pedigrees and our complete lack of relevance to just about everything on the planet. And then, he stood up, and we knew it was over. Our brief fling with fame and fortune had abruptly come to an end.

On his way out, probably just to taunt us, Donny muttered something about going to see our some-time cross-town rival: Wiltin’ Sashimi Gnocchi & Ravioli LLP. He then bolted for the door, nearly running over a cute toddler with a stinky, leaking diaper who had just wandered in from Brilliant Babies, our daycare center neighbor across the hall.

In a Mitt Romney-like awkward moment, realizing that he needed to get by the kid to get out, Trump looked at the youngster, stuck out his chubby palm and said “Gimme Five!” The young lad, whose name is Newt, and whose right hand was held suspiciously behind his back, appeared not to know what to make of this gesture. “C’mon, man, you can do it!” said Trump. And do it Newt did: he brought out a poopy hand from behind his back and connected with Trump’s palm with a manly but very squishy smack.

“Yeccchhh!” screamed Trump, reaching for his hanky as he tried desperately not to inhale. There was more wincing, and even more cursing, and then he was gone. “If you need directions to WSG&R, just call 1-800-SOLYNDRA”, Brian, our prankster, yelled out. But by then The Trumpster had already entered his waiting limousine.

Our four partners then left for a pleasant lunch at The Bagel Shop. No one mentioned the loss of the big opportunity. Mostly we just talked about whether Kim Kardashian’s divorce trial might be televised.


Have you found your attraction to Facebook to be fleeting of late? Has your Twitter use begun to truncate? Does Google+ seem more like a big minus?

Investors in social media stocks may be having some of the same feelings. The Groupon and Zynga IPOs both came out at market valuations billions of dollars below their hyped-up original expectations, and then their shares almost immediately started trading below their IPO price, which is a big no-no in the world of Wall Street.

So enough of these tired and worn-out old digital clichés copycats and clones of the Web. Let’s look to where the smart money may next be heading: the world of Pop-Ups. Yes, Pop-Ups, indeed.

Pop-Ups are a type of “movable” retail commerce that is essentially Web-free, and they have been around literally as long as the first lemonade stand and sidewalk taco vendor. But today’s Pop-Ups are bolder, brassier and much more nimble. And they have penetrated into many other forms of retail goods and services.

Ponder this article which focuses primarily on the fashion industry’s entry into Pop-Up retailing: www.neontommy.com/news/2012/01/fashions-wheels-le-fashion-truck

But it’s not just the retail fashion sector that’s enjoying this zippy trend. Restaurants are going Pop-Up, too. Right here in Silicon Valley, and in San Francisco, Berkeley and Oakland, too. Check out this San Francisco Pop-Up restaurant site: www.thebolditalic.com/Summer/stories/1191-pop-stars

How do restaurants do it? Here’s how. A would-be chef makes a deal with an established restaurant to share its kitchen, and gets allocated a separate area of tables. It may last only one night. Or it might move around to different restaurants. Some even travel to different cities. Word travels via the Web, and the startup gets experience without having to commit to a building lease or buying any equipment. This may go on indefinitely, or it may eventually morph into a traditional stationary site. All options are on the table, as it were.

Many experts believe that Pop-Ups have a place in just about every facet of our society. Yoga studios, banks, hair styling salons, schools and churches could all be mobilized by 2013, experts say. Even piano tuners, chimney sweeps and dance studios are well-positioned to capitalize on this retail paradigm shift.

How do Pop-Ups fit into the practice of law? That’s what we’ve been wondering. We don’t know of a self-proclaimed Pop-Up law office yet, but no doubt there are already many out there lurking under the radar in Starbucks, flea markets and back-to-school night settings. We tend not to rush into trendy things, preferring instead to think strategically and carefully plan our moves. We have our eye on a few locations we think might be well-suited for our first move. Let’s just say that for now we are in stealth mode, and leave it at that.


Dear Aubergines Editor:

I find your newsletters to be wildly entertaining, always edgy and often deeply nuanced and enlightening. Your crisp, spare prose is like a cool, damp facecloth applied to the forehead on a hot, sticky night in the tropics.

But I must know: What is the significance of the name “Aubergines”? I often have nightmares where people keep throwing rotting eggplants at me and calling me unkind names. I sometimes awaken in a cold sweat, and then cannot go back to sleep. Alas, please tell me now.

Yours very truly,

Aung San Suu Kyi

Yangon, Republic of the Union of Myanmar

Dear Ms. Kyi:

Our deepest apologies, but the story of Aubergines is a carefully guarded secret that cannot be revealed until the coming of the Rapture. Then it will be obvious to all.

The Editor

P.S. For your sleeping disorder, you might want to try drinking smoothies made with Acai berries, lemon grass and soy milk just before bedtime, and eliminating all gluten from your diet. Maybe start a blog. More foreign travel couldn’t hurt, either.


Aubergines is a quarterly review of borderline-authentic news which publishes at least twice per year. Nothing contained in Aubergines may be construed as legal advice or a legal opinion. Don’t even think about suing us. What few assets we have are held in private, numbered bank accounts located in obscure off-shore jurisdictions which do not recognize the United States or any of its laws. All rights of readers are waived in perpetuity and thereafter. No representations or warranties whatsoever apply. Valid even in jurisdictions where invalid.