Counterfeiting: Why Consumers Should Never Buy Fake Goods

Hello Everyone!

Welcome Back! Today I am not going to discuss the law as much but I want to bring to your attention the crime and economics behind Counterfeit goods. I read a very informed and interesting article in the January 09 issue of Harper's Bazaar Magazine about the Counterfeiting Industry. Harper's Bazaar spearheaded the "Fakes Are Never In Fashion" campaign in 2005 to inform the public about the atrocities of the Counterfeit Trade. Every January, the magazine publishes an article about counterfeiting. Here are some very amazing numbers provided by Harper's Bazaar:

$600 Billion
Estimated annual sales in counterfeit products worldwide

$512 Billion
Global sales lost to counterfeit goods

$250 Billion
Annual loss to American companies from intellectual property theft

$20 Billion
Estimated loss to American companies from counterfeit products

$1 Billion
Estimated annual loss in New York City tax revenues due to counterfeiting

750,000
Number of jobs lost due to intellectual property theft in the United States

10%
Estimated percentage of fakes among all goods produced worldwide every year

As you can see these are pretty staggering numbers. However, I was more appalled by the use of child labor in Thailand and China to produce counterfeit goods. As reported in the January 09 Issue of Harper's Bazaar Magazine, children as young as 6 years old work around the clock in sweat shops producing fake goods. The children are often dirty and underfed. In one raided Thailand sweat shop, the owner had broken the lower legs of elementary age children and tied them to their thighs so the children legs would not heal. When asked why he committed such a horrific act, he said "because the children wanted to go outside and play." I nearly cried.

Besides the obvious legal reason why we should not buy Counterfeit goods,(federal crime, trademark infringement, and brand dilution) we all should detest the mistreatment and cruelty to children in producing these "fake" goods. In today's culture we all want to own luxury for less. Instead of saving or waiting until we can afford these goods, we will purchase a $50 "fake" Louis Vuitton handbag on the street. Purchasing counterfeit goods is stealing from those companies who have investing considerable effort and time in building a recognized and respected brand. It is also supporting human trafficking, child abuse, and child labor.

Please visit Fakes Are Never In Fashion.com to learn more about what we can do as consumers to stop Counterfeiting.

Note: Counterfeiting Facts in this post are credited to Harper Bazaar Magazine: January 09 Issue

Trademark Registration: Why it is important to choose the appropriate Classifications

Hello!

Welcome Back! Today I will discuss determining what classification your good or services falls under when registering your trademark. This is an important topic because choosing the wrong classification or not including a classification can jeopardize your trademark rights. Here are a few tips:

1. First a classification is a description and scope of the types of goods or services that fit your trademark.

2. When choosing a classification first think about the industry you are in. Specifically, what industry does your product or service serve? For example, if you are a film company you are in the Entertainment Industry. So you would choose Classification 041 which covers Entertainment in the nature of motion pictures.

3. Next make sure you include multiple classifications if your trademark will identify different products or services within your company. For example, the trademark BBB Bar-B-Q may identify Restaurant services, which is covered under classification 043. But the trademark may also identify BBB Bar-B-Q Sauce which is a product covered under classification 030.

4. Lastly, be strategic when identifying classifications for your product and/or service by including classifications of products or services that you have yet to bring to market. For example, you own a restaurant but plan to sell T-Shirts displaying the restaurant's trademark. You can include the classification 025 which covers T-Shirts and base your trademark application on an intent to use basis. This will prevent another company from claiming a trademark right in your trademark on T-shirts. More importantly, if you do not include T-Shirts in your original application and later want to include your trademark on T-Shirts, you would have to go back and apply for a trademark for T-Shirts. It is best to include all Classifications the first time around. It will save you time and money.

When Can You Use the TM or SM sign?

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Welcome Back! Today I am going to discuss when it is appropriate to use the TM or SM sign after your trademark. First let me explain what the TM or SM sign represents.

A TM is an acronym for trademark while SM is an acronym for service mark. A trademark identifies unique goods or products, .i.e., Cheerios Cereal. A service mark identifies unique services, i.e., Anderson Consulting.

It is appropriate to use the TM or SM sign after your trademark or service mark when you claim a right in your trademark or service mark. What does this mean? It means that you are using the trademark or service mark in connection with the sale of goods or services in commerce. Click here for my explanation of "Use In Commerce." You can use the TM or SM signs regardless of whether you have filed an application with the USPTO. As I have discussed previously, an individual or entity can have common law trademark rights. If you are first to use a trademark or service mark in your region, you have common law trademark rights. This right is granted to an individual or entity without USPTO registration.

Why is it important to use the TM or SM sign? Well it puts the public on notice that you are asserting rights in your trademark. So an infringer may be deterred if they see that you are claiming a trademark right. However, it is still very crucial that you do obtain registration from the USPTO. USPTO registration protects your trademark or service mark nationwide and is important in obtaining trademark registrations in other countries. You can only use the official R symbol once the USPTO grants registration of your trademark or servicemark.

I hope this information was helpful. If you have any questions or would like to leave a comment, please do so.

How to locate an infringer on the internet

Hello!

Welcome Back! Happy Holidays! Today's topic will discuss how to find the owner of a website that is using your intellectual property without your permission. I always get calls from clients regarding a website that is unlawfully using their trademarks or copyrighted material. In the majority of these cases, the website owner's information is not readily available. Here are a couple of ways to locate the infringer.

1. Look up the owner's information on whois.net. Whois.net will allow you to type in any domain name and they will provide the registrant's (owner) information. Most times, the name of the owner or company is readily available. However, there are instances when aliases are used. In this case, use the following method:

2. Contact the Internet Service Provider and inform them of the infringing activity and they will provide the owner's contact information or they will contact the owner on your behalf.

I hope this information was helpful. If you have any questions or comments, please leave one.

Can You Trademark a Common Name?

Hello!

Thank you for visiting! Today's post will address whether you can trademark common or generic names. I briefly discussed this issue in a previous article you can find here. Basically common or generic names, or words or phrases that are merely descriptive are not sufficient for trademark registration with the USPTO. See TMEP §1213.05. However, if a combination of common or generic names create a unique name, tag line, or coined phrase, then the USPTO considers them unique enough to be a trademark. See the example below:

Go and Daddy separately are two common or generic words. Alone neither are sufficient for trademark registration. However, the combination of "Go Daddy" together is a unique name that is trademarked!

So when choosing names for trademark registration, do not be afraid to use common names together to create a unique name or phrase. As long as your name has not been previously used by another individual or entity, and you are using the name in commerce, trademark registration is feasible.

I hope this information was helpful. If you have any questions, please leave a comment.

How To Protect Your Intellectual Property Online

Hello!

Welcome Back! I hope everyone is having an awesome day! Today I am going to discuss how to protect your intellectual property on the internet. Here are a few practical tips and tools you can implement right now to ensure your intellectual property is not stolen.

1. Include a section or link on your website that clearly states the terms of use when someone wants to use your material. See the examples below:

For Copyrights

All Content on Site X are protected by U.S. Copyright. This site is licensed under a Creative Commons License. You are free to site or quote material on this site if you first obtain our permission and if you properly attribute the material back to Site X.

For Trademarks

Site X's name and logos are all registered trademarks of the X company. All Rights are Reserved. You must obtain our permission before using or displaying any of our registered trademarks.

2. Watermark your copyrighted images. A watermark can contain an image across the photo with your copyright notice or the name of your site.

3. Do keyword searches of your trademarks and be vigilaint about contacting infringers and demanding they remove your intellectual property from their sites immediately.

4. For as little as $249.00 per trademark, use a company like Mark Trend to track and monitor possible and actual trademark infringement on the internet. Using a montioring service like Mark Trend will save you money and most imporantly time. They do all the work for you.

I hope this information was helpful. If you have any questions, please leave a comment.

Google's Policy for Keyword Advertising: Beyond the U.S.

Hello!

Welcome Back! In my previous post I discussed Google's Policy for Keyword Advertising. Specifically, I discussed how Google's Policy was different in the US, Canada, UK, and Ireland than in countries outside of these territories. Why? Well it depends on how "trademark owner" friendly laws are in certain countries.  Below I will discuss some "trademark owner" friendly laws in France and Austria.

In France, one court found Google liable for trademark infringement in allowing trademarks to be used a keywords by Google Advertisers.  Viaticum & Luteciel v. Google France, Court of Nanterre, Oct. 13, 2003.  The court conluded that a "likliehood of confusion" existed when consumers searched for the rightful trademark owner's products and instead a search produced a competitor's or imitator's products.  

In Austria, the court found that use of trademarks in keyword advertising is trademark infringement.  The court concluded that infringement existed when the search resulted in the competitor's or infringer's advertisement appearing before the trademark owner's advertisement.   Also if the trademark owner's trademark appeared in the text of the advertisement, then trademark infringement existed.   AdWord-Urteil aus Osterreich OGH, Beschluss vom 20.3.2007

So what is the final conclusion? As I have previously stated, advertisers should be overly cautious in deciding to use trademark as keywords in advertising. Depending on the country or the region in the US, you may be liable for trademark infringement.

Google's Policy for Keyword Advertising

Hello!

I hope all is well! In my last post I briefly mentioned Google's Policy on their advertisers' use of trademarks as key words in key word searches that produce advertisements.  Specifically, I mentioned that Google has established a policy in which Google will require the advertiser to remove the trademark from the ad text or keyword list and will prevent the advertiser from using the trademark any further.  Google will implement this policy when Google receives a complaint from a trademark owner that a Google advertiser is using the trademark in the ad text or as a keyword trigger.  I do need to clairfy that this policy applies to countries outside of the UK, Ireland, Canada, and the US.  See Google's Policy here.

However, in the UK, Ireland, Canada and US, Google's policy is different.  Google will remove the trademark as a keyword only when the trademark is displayed in the ad title or in the ad text.  But it will not completely disable the use of the trademark as a keyword.  View this policy here. 

Below is an example:

In the U.S, if I have a company that is a competitor of John Deere, I can purchase John Deere, which is a trademark, as a keyword.  A search for John Deere will also pull up advertisements for my company.  My advertisement can be just as prominent or more prominent than John Deere's. Of course this can be frustrating for John Deere.  But as long as John Deere, which is a trademark, does not appear in my ad title or text, Google will not require I stop using John Deere as a keyword.  Google will allow this even if John Deere complains.  But outside of the UK, US, Ireland, and Canada, if John Deere complains about the use of its keyword in my advertising campaign, Google will require that I stop using the keyword and prevent me from using it further.   Even though the trademark, John Deere, does not appear in my ad text or title, Google will prevent me from using it as a keyword.  Why is Google's policy different for the US, Canada, Ireland, and the UK?  Well it mainly comes down to how strong the trademark laws are in a particular country regarding the use of trademarks as keywords.

As I mentioned in my previous post, Google has been sued many times for its policy here in the US.  However, Google has either settled each lawsuit or the lawsuit was dismissed for a variety of reasons.  The second circuit has concluded that the use of keywords in advertising is not a use in commerce and therefore not trademark infringement. Read my synopsis of this case here.  On the other hand, the 11th circuit has said the use of keywords in advertising is a use in commerce and therefore trademark infringement.  Other courts in the US, have not been clear whether using trademarks as keywords is trademark infringement. Ultimately this issue is still up in the air and will have to be decided by a higher court.  

Since the courts are pretty much split regarding this issue, Google is not motivated to do more to stop advertisers from using trademarks as keywords in an advertising campaign. Google's policy here in the U.S. is definitely more advertiser friendly. I still stand by my policy to not use trademarks as keywords if you are an advertiser.  The search engine may not be liable for allowing you to use the trademark has a keyword, but you will as an advertiser. 

In my next post, I will discuss some of the laws established in countries where Google's policy is more trademark owner friendly.

I hope this information was helpful.  As always leave a comment or contact me via email if you have any further questions.

Can Search Engines be Contributorily Liable for Trademark Infringement?

Hello!

Today's topic is contributory liability in regards to trademark infringement, i.e, contributory infringement.  Of course, we are going to discuss this trend as it applies to the Internet. First let me explain what is contributory infringement.

Contributory infringement is a legal concept that is usually applied to copyright infringement. Contributory infringement is when an individual or entity knows that copyright infringement is taking place by another and allows, causes, or assists the infringing activity.  Here is an example:  

A manufacturer unlawfully copies an artist's work and sells it to a major retail chain.  The retail chain sells the works in all of its stores.  The artist notifies the retail chain of the infringement and requests that they stop selling the infringing work.  However, the retailer continues to sell the infringing work.  The retailer would be liable for contributory infringement because they had notice the work in question was infringing and they induced or allowed the manufacturer to commit copyright infringement through selling the work.  

Recently, courts have applied the contributory infringement concept to trademark law.  The current law states that "If a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorially responsible for any harm done as a result of the deceit."  Inwood Laboratories, Inc. v. Ives Laboratories, Inc.  Strong language!  

How does this rule apply to search engines?  Specifically, can a search engine be liable for allowing trademarks to be used in keyword searches that result in the advertisement of the trademark by a trademark infringer?  This practice is called key-word linked advertising.  I briefly discussed this concept in my earlier post.  Google has come under fire for this practice.  They have been sued many times.  However the lawsuits were either settled or dismissed.  As a result, Google has established a good policy to avoid contributory trademark infringement liability.  Essentially when Google receives a complaint from a trademark owner that a Google advertiser is using the trademark in the ad text or as a keyword trigger, they will require the advertiser to remove the trademark from the ad text or keyword list and will prevent the advertiser from using the trademark any further.   Thus Google is adhering to the law established in Inwood Laborities...not knowingly contributing to trademark infringement.

What does this mean for consumers who advertise on the Internet? Don't use established trademark has key words when advertising.  If you sell designer purses, use "designer purses" as a key word  instead of "Louis Vuitton" or "Chanel."  This simple practice will save you a lot of heartache and money. 

Using Third Party Trademarks as Meta-Tags on Blogs

Hello!

I hope all is well! Like most bloggers, I use meta-tags based on the subject of my blog or posts, to make it easier for search engines to find my blog when an internet users enters the search term. However, what happens when you use a trademark as a search term.  Is it trademark infringement or a search engine linking function?  This issue was discussed at PLI's Intellectual Property Law Institute.  There are two critical cases that have recently addressed this issue. However, each ruling is different.  Here is a brief synopsis of the law as it stands today:

1. The use of trademarks in meta-tags is "use in commerce" and therefore trademark infringement. The 11th Circuit came to this inclusion this year in North American Medical Corp. v. Axiom. The court stated that the use of a trademark as a meta-tag was use in commerce. Essentially, the court concluded that the use of the meta-tag, which resulted in the trademark in question being displayed on the search engine, was an advertisement for the sale of goods. Thus it was used in commerce.

2. However, the 2nd circuit decided in 1-800 Contacts, Inc. v. WhenU.Com, Inc. that use of trademarks in meta-tags was not a "use in commerce" because the search engine merely provided the link to the trademark.  The court emphasized that linking a trademark through a search engine was not a use in commerce because the trademark in question was being displayed by a machine and the defendant was not causing the trademark to be physically placed on goods or services, or was physically causing the trademark to be displayed or reproduced.  

What does all of this mean for those of us who use meta-tags? Although the 2nd Circuit and 11th Circuit give different opinions on whether the use of trademarks in meta-tags is trademark infringement, it is better to be safe than sorry.  When using meta-tags be wary of using trademarks.  Make sure that when you purchase key words meta-tags that there are not any trademark in the list.  The last thing you want is to be sued by a huge corporate giant for trademark infringement.

Trademark Issues in Virtual Worlds

Hello!

I hope all is well.  In my previous post we discussed copyright issues when creating avatars using internet service providers, such as virtual worlds or avatar creation services.  Today I will discuss trademark issues that arise in virtual worlds.

This topic was discussed at PLI's Intellectual Property Law Institute.  Stephen Davidson of Davidson PLLC gave a brief presentation on this topic.  Here is a brief outline of his presentation:

1. Most trademarks famous and non-famous are found in Virtual Worlds such as Second Life.

2. Many end users (consumers) of Virtual Worlds use these trademarks without the express permission of the trademark owner.

3. Sometimes owners of famous trademarks will police (prevent) trademark infringers from using their trademarks in Virtual Worlds.

4. Owners of famous marks should particularly police use of their trademarks in Virtual Worlds due to trademark dilution.  A trademark infringer's use can tarnish (create a bad reputation) or blur (diminish the distinctiveness) of a famous mark.

In conclusion, the same rules apply regarding trademark infringement in real life and in cyber life.  

 

Who Owns the Copyright to An Avatar: The Service Provider of the End User?

Hello!

As many of you know, I attended PLI's Intellectual Property Law Institute in San Francisco last week.  Intellectual Property issues in Virtual Worlds was a hot topic.  Stephen J. Davidson founder and principle of Davidson PLLC,  gave a fascinating presentation on this subject.  As a social media enthusist, I was particularly interested in the discussion on who owns the copyright in an Avatar created by the end user (customer) but the tools are provided by the service provider (Second Life, Disney's Toontown).  Here is a brief outline of his presentation below:

1.  Virtual Worlds such as Second Life do not require end users to relinquish their copyright rights.  Plus they allow customers to create avatars and then license them.  Thus, when you create avatars or other objects in these worlds, you are the rightful copyright owner and can sue an infringer for unlawful copying.

2. There are some virtual worlds such as Disney's Virtual Magic Kingdom, that require customers to reliniquish their copyrights when creating avatars and actually require the customer to license the avatar to the internet service provider.

3. Other service providers that provide avatar creation services, such as Logobama o8' and Ameriland Entertainment allow the customer to retain their lawful copyright and grant the service provider a royalty-free license to copy, distribute, use or display the avatars.

I am of the view that although an internet service provider may provide the tools for a customer to create an avatar, that creation is still the original idea and work of authorship of the customer.  Thus a copyright does exist. However, just like in any other case, copyrights can be licensed, retained, and purchased by express written agreement.  So when creating avatars make sure you read the terms of agreement of the service provider.  You may create the avatar but the service provider may own it.

 

What Advertising Agencies Should Know When Creating Ad Campaigns

Hello!

When advertising agencies create advertising campaigns that include slogans, tag lines, and logos for a client, but the client subsequently does not use the campaign, who owns the trademark rights? The client or the advertising agency?

This is a hot issue in the world of advertising.  This issue was decided by the 2nd Circuit in the case, American Express Co. v. Goetz and Gardner Design Group LLC. 

Goetz and Gardner submitted an advertising proposal campaign to several credit card companies that included the slogan, "My Life. My Card."  Two months after submitting the proposal to AMEX, Goetz and Gardner registered the domain name, mylife-mycard, and filed a trademark application with the USPTO.

Subsequently, AMEX did not use Goetz and Gardner's proposal, but used another advertising agency's proposal that also included the slogan, "My Life. My Card."  AMEX immediately registered the domain name, mylifemycard, and filed a trademark application with the USPTO. 

When Goetz and Gardner discovered AMEX's use of the trademark, My Life My Card, they sent a cease and desist letter to American Express to prevent them from using the slogan. This dispute was litigated in court and the courts made two important determinations.  They are:

1. Slogans created by advertising agencies for a client or potential client's advertising campaign cannot be registered as trademarks by the agency. These slogans are created for clients to identify and distinguish the services of the client and not the advertising agency.

2. Simply displaying a trademark or servicemark in advertisement for services that are not yet available does not constitute use of the mark in commerce for trademarking puposes. Essentially, if there is not an exchange of goods or services in the marketplace, a trademark or servicemark right does not exist.  

Advertising agencies should be aware that if they create an advertising campagin for a client or potential client and the client does not use it, the agency cannot assert trademark rights. However, the advertising agency may assert a breach of contract or misappropriation claim for non-payment for creating the campagin.

I hope this information was helpful. Please contact me via email or leave a comment if you have any further questions. 

How Does One Lose Their Trademark Rights: Its all about Brand Management

Hello!

I am finally back from San Francisco! I attended PLI's Intellectual Property Law Institute Conference this past Thursday and Friday.  It was awesome! We discussed intellectual property issues in virtual worlds, social networks, and blogs.  I was in IP Nirvana! It was truly great and over the next week, I am going to share with you the latest and greatest in IP Law.  I know you will enjoy it!

Today,I am going to discuss how an individual or entity loses their trademark rights.  The top three reasons are:

1. Failure to prosecute infringers.  I can not tell you how important it is to prosecute (prevent) trademark infringers from unlawfully using your trademark.  If you do not, your trademark is considered weak.   Furthermore, if you take no action to prevent infringers and their use of your trademark is overwhelming, you can lose your trademark rights.  Essentially, your trademark will lose its uniqueness to your product or service.

2. Abandonment by non use or change in the nature of goods or services sold under the trademark.  For example, you register your trademark to uniquely identify plumbing services.  Subsequently, you stop providing plumbing services and you now provide medical testing services. However, you do not change the trademark.   The trademark originally used to identify plumbing services can not and will not identify medical testing services.  You must apply for and obtain a new trademark to identify medical testing services.  Also if you do not actively use a trademark in commerce for 3 years, it is evidence that you have abandoned the trademark. 

3. Genericization of trademark. This happens when a trademark becomes the common name for the goods or services and ceases to function as a source for the goods.  For example, ASPIRIN  is an example of a trademarks that has become descriptive of goods instead of an indication of a source for a particular good.  So we associate Aspirin with the headache medication instead of a brand like Bayer Aspirin.  Genericization of  a trademark can occur if a commercial campaign or promotion is too successful.  A company must takes steps to make sure that their trademark does not become generic.  For instance XEROX Corporation is an example of a company that has prevented its mark from becoming generic.  XEROX used an extensive advertising campaign which informed consumers to "photo-copy" documents with XEROX machines.  Also XEROX constantly used XEROX "Brand" to identify its products.  

Remember its all about brand management.  As a trademark owner, you have to manage your brand to ensure your product is identified correctly, your brand is conveying the correct message, and to prosecute trademark infringers. I hope this information was helpful.  Please leave a comment or email me if you have any further questions.

 

Likelihood of Confusion: What Is It?

Hello!

Today I am going to discuss the second requirement to prove trademark infringement: likelihood of confusion.  

Per my previous post, to prove trademark infringement one must show 1) priority of the trademark's use in commerce and (2) the use of similiar trademarks in commerce is likely to cause confusion among the relevant consuming public.

The courts have established an 8 part test to prove likelihood of confusion.  The court balances these 8 factors to determine if the use of two similar trademarks in commerce is causing confusion among the relevant consuming public. I will explain each factor below:

1. The strength of the mark.  Basically, how strong or distinctive is the trademark to the consuming public? The strongest marks are those that are arbitrary and fanciful.  This means that the mark does not merely suggest or describe the product or service. For example, Kodak is the trademark for a line of cameras and film.  Kodak does not suggest or describe the products: cameras and film.  However, we have come to associate Kodak as a producer of quality cameras and film.  

2. The similarity of the marks in sight, sound and meaning. For example, Victora's Secret is the trademark associated with premium lingerie.  However, another company comes along and its trademark is Vickey's Secret and this company also sells premimum lingerie.  These two trademarks are similar in sight, sound, and meaning

3. The similarity of the goods or services sold under the trademarks.  I will go back to my Victoria's Secret example.  The goods and servies sold under the trademarks, Victoria's Secret and Vickey's Secret, are so similar they are identical.

4. The similarity of the distribution channels and customers for the goods or services at issue.  Are the products being distributed by the same entities? Are the products sold in the same markets? Are both products being sold through the same channels, i.e., online, in-store, or catalog?

5. The sophistication of purchasers and the expense of the product or service at issue.  For example, frequent buyers of Ralph Lauren Purple Label would be less likely to confuse RLA Purple Label with Ralph Lauren.  The rationale is that sophisticated purchasers exercise more care when purchasing expensive items.

6. The similarity of means and methods of advertising and promoting the goods or services at issue.  Essentially, do both companies promote the trademarks through the same channels, i.e, both advertise on television, the web, or print campaigns.

7. Was the potentially infringing trademark adopted with good faith or with intent to imitate the established trademark? Per my Victoria's Secret example, clearly Vickey's Secret was adopted with the intent to imitate the established trademark Victoria's Secret.

8. Whether there is evidence of actual confusion of consumers or other relevant groups.  Actual evidence of confusion can be established by customer surveys; diverted internet traffic; and lost sales.

Alliance Metals, Inc. v. Hinley Indust. Inc.

It is important to note that if you discover that another trademark is infringing on your priority trademark right, it is in your best interest to action.  If you do not take action, you can suffer dilution of your brand, lost profits, and lose your trademark rights.  Yes you can lose your trademarks rights.  

In my next post, I will discuss how one loses their trademark rights.  I hope this information was helpful.  If you have any further questions, please leave a comment or contact me via email.

Trademark Infringement: Priority of Use and Likliehood of Confusion

Hello!

Today I am going to explain the requirements to prove trademark infringement.  Believe it or not, there are tons of trademarks that infringe on another trademark's rights whether intentionally or unintentionally.  As I have discussed previously, it is important to protect your trademark to avoid dilution of your brand and to protect licensing rights and royalty income.  

In order to prevail on a trademark infringement action, an individual or company must show (1) priority of its trademarks use in commerce and (2) the use of similiar trademarks in commerce is likely to cause confusion among the relevant consuming public. Cumulus Media Inc. vs. Clear Channel Communications.

In this post, I will explain what the law means when it states a mark must have "priority of use in commerce."  In my next post, I will explain the concept of "likliehood of confusion."

Priority of Use in Commerce

A trademark will have priority rights over another similar trademark if the trademark was used first in commerce.  The definition of use in commerce is the bona fide (actual) use of the trademark in the ordinary course of trade, and not made merely to reserve a right in the trademark. The Lanham Act sec. 45.  More specifically, it comprises the trading of something of economic value such as goods, services, information or money between two or more entities. 

A few examples of Use in Commerce are: 

1. selling a product or service online.

2. publishing (print and online)

3. distribution of products

Use of Commerce is not:

1. Using a trademark as a key word to trigger the display of sponsored links online is not use of the mark in a trademark sense.  (Merck vs. Mediplan)

2. Simply registering a domain name. (Brookfield Communications Inc. vs. West Coast Ent.)

3. Simply incorporating a business without customers.

Priority of Use in Commerce can be established by:

1. The trademark owner was first to use the trademark in its region.

2. The trademark owner was first to file an application with the USPTO based on use in commerce.

3. The trademark owner was the first to file an application with the USPTO based on intent to use, however, the trademark owner MUST show actual use within 6 months of an intent to file.

I hope this information was helpful.  Please leave a comment or contact me via email if you have any further questions.

 

IP LAW 101 FEATURED ON ALLTOP!!!!

Hello!

Welcome new and returning readers!  I must admit this blog is a year late.  My dear husband had been urging me to start a blawg (law blog) for a year. He felt I really had something valuable to share with the public.  See my husband thinks I am a pretty good attorney.  He may be biased though.  LOL!  I just really love what I do and I love helping people.  So you can imagine my absolute surprise and astonishment when IP LAW 101 was selected to be on Alltop in the Top Law News category!  Woot! What is Alltop? Alltop is an interent magazine of the BEST news and stories on the internet from blogs and other web sources.  Alltop displays the best of the best on various topics such as law, politics, technology, beauty, you name it!  The process for inclusion on Alltop is pretty selective, so if you are listed on Alltop, you are pretty hot stuff. LOL!  Seriously, I am so honored, thrilled, and humbled! You see I started this blog 2 months ago and the response I have received is overwhelming.  I know the information provided in this blog is helping someone.  So thanks Alltop! And thank you to my husband for making me start this blog! Woot!

Why You Should Hire A Trademark Attorney To File A Trademark Application

Hello!

Welcome Back! Now some of you may think that I am writing this article because I want you to hire me or one of my colleagues.  Now of course if you think I might be an awesome attorney, then please contact me.  LOL!  But this blog is purely to provide valuable information to people who need it.  I felt compelled to write this article because many individuals believe that the process to file a trademark application is simply filling out the application online and then Viola!, six months later you have an official trademark registration.  Is it that easy?  Well maybe about 50% off the time.  To be honest, a large portion of my client base are individuals who filed their own trademark application and it was subsequently rejected. Yes rejected. There are numerous reasons the USPTO rejects an application. The most common reasons are:

1. The proposed mark is too similar to a registered trademark.

2. The applicant submitted an insufficient specimen (trademark and/or logos).

3. The appliciant failed to prove the mark is currently being used in commerce.

4. Applicants submit items that should be sent to the US Copyright Office to the USPTO.

4. The applicant missed an all important USPTO deadline.

So what can a trademark attorney do to ensure the likliehood of success in obtaining a registered trademark that most individuals do not do?: They are the following:

1. Perform a comprehensive trademark search to ensure your mark does not infringe on a registered or unregistered mark that has priority rights.  Trademark attorneys hire trademark searh companies to do a comprehensive search of your mark.  This search will gather any information or trademarks that are similar to your trademark.   These companies search the USPTO database, all 50 states trademark databases, company names that have incorporated with the state, trade names, the Copyright Office database, and the internet. This cost for this type of search starts at $550.00.  This may sound steep, but who wants to do all of this research themselves? Remember, there may be an existing trademark that has priority rights over your trademark that is not registered with the USPTO.  A trademark that has been used in commerce first in its region has valid trademark rights even if it is not registered. I discussed this concept here.  So do not simply rely on the trademarks listed in the USPTO database.  It WILL NOT contain all valid existing trademarks that may compete with yours.

2. Analyze the contents of any comprehensive search and give a legal opinion regarding the likliehood of success of your trademark obtaining registration.  Once this information is gathered, a trademark attorney will use his or her knowledge of the trademark laws and determine whether: a) there is a competing trademark, 2) whether a competing trademark has priority (1st to use) rights over yours and vice versa, 3) whether you should pursue a trademark dispute, or 4) whether you should choose another trademark. 

3. File your application and ensure the application is worded correctly and that you have the correct specimens (evidence you are using the trademark in commerce) for submittal.  One of the top reasons trademark applications are rejected is because individuals do not submit the correct specimens.  A correct specimen for goods can be a label or a container.  A correct specimen for services can be a brochure or advertisement for services.  Often individuals simply submit the drawing (logos) or name as the specimen.  This is incorrect and your application will be rejected.

4. Make sure you do not miss any deadline for responses to a USPTO action. The USPTO reviews your application and subsequently provides several office actions before the application is offically approved and a registration issued. However, these office actions have very strict response deadlines.  If you miss a deadline, your application can be abandoned. What does this mean? You have to start over. Trademark lawyers are very careful about adhering to deadliens.  If we don't, guess what? You can sue us for malpractice. 

Lastly, many individuals use companies like Legal Zoom to file trademark applications.  These companies DO NOT perform comprehensive searches.  I repeat they DO NOT perform comprehensive searches.  They only check the USPTO database.  So you can pay this company around $550 which includes the $325 USPTO filing fee, and cross your fingers.  If the applications is rejected because the USPTO did their own research and found a competing right, you are basically out of luck.  

How Does Dilution Affect You as a Trademark Owner?

Hello:

Below is my continuation of Monday's post regarding Dilution.  

So how does Dilution affect you as a trademark owner or potential trademark owner? Well the law has recently changed. Now the law heavily favors owners of nationally knowned or recognized trademarks. Previously, an owner of a famous trademark had to show that a company that adopted their trademark but sold a totally unrelated product or service was ACTUALLY diluting their brand. Actual dilution could be shown by economic injury (loss profit or sales) via blurring (consumers began to confuse the two products) or tarnishment (the use of the famous mark by the subsequent company tarnishes the reputation of the famous mark). But actual dilution was hard to prove. Currently, the only thing an owner of a famous trademark has to prove is that there is a likliehood of confusion rather than actual economic injury. Trademark Dilution Revision Act (TDRA) This is much easier for a company to prove. One way a company can prove a likliehood of confusion is by simply doing customer surveys.

Second, a mark has to be recognized nationally by the general consuming public. TDRA. Previously, a highly distinctive or niche mark was considered famous even if it was only used in a specific geographic region. Now if your mark is famous or well knowned in the Southeast but not nationally, then you can not claim dilution by a subsequent mark.

Third, protection from Dilution is still afforded to trademarks that are satires, parodies, or criticisms of a famous mark. TDRA. This is called the fair use doctrine. So the website Perez Hilton, which is a satire or parody of the name, Paris Hilton, is protected from any dilution claim from Paris Hilton.

I want to close out this article with three key points:

1. If your mark is nationally known or recognized, be vigiliant in protecting your brand and trademark. The current law is on your side.

2. If you are a potential trademark owner, make sure you do not choose a trademark that is too similar to a nationally recognized trademark. Although you may not offer the same product or service, a company that owns a more famous mark can easily prevent you from using the mark.

3. Parodies or satires are protected. So if you have a website or an idea for a mark that parodies a famous mark, feel free to embark on that journey. Fair use is king!

Trademark Dilution: What Does It Mean?

Hello!

Note: When I initially wrote this article, it was very long. So to keep my readers engaged, I decided to split this article into two posts.  I hope you find this information helpful.

Today I am going to discuss Trademark Dilution.  I will explain what it means and in my next post I will discuss how Dilution may or may not afffect you as a trademark owner.

Dilution is when another company or individual uses your famous trademark or brand name on a totally unrelated product or service and their use of your trademark "dilutes" the distinctiveness of your product or service.  Dilution can occur even if the unrelated product or services is not competitive or may not cause a likliehood of confusion, i.e., consumers would confuse the two companies' product or services.  I will explain this concept in the example below:

Your company name is XYZ, Inc. You own a trademark for distributing tech gadgets.  You have built a brand name and reputation as a leader in distributing tech gadgets.  However, another company comes along and names their company XYZ, Inc. but they don't sell tech gadgets, they sell street clothing. Although, the products sold are totally unrelated, the consuming public can assume that company XYZ, Inc., which sells tech gadgets, has ventured into the business of selling street clothing.  XYZ, Inc., the tech company, does not want to be known for selling street clothing.  They want to be known as the leader in selling tech gadgets. And of course, XYZ, Inc., the street clothing company, wants to use the XYZ name because they can gain recognition off of the brand name and reputation of XYZ, Inc., the tech company.  Thus this is how dilution of a brand occurs and why well knowned or famous trademarks want to avoid it.

So how does Dilution affect you as a trademark owner? Stay tuned for my next post to find out.

Taglines and Coined Phrases are Trademarks Too!

Hello!

If you are new to this blog, welcome! If you are a returning visitor thank you so much for coming back.  

As a trademark lawyer, I often notice that individuals create unique tag lines and coined phrases to describe their product or service, but do not trademark them.  Taglines or coined phrases usually describe your product or service and a business becomes associated with that phrase. Thus they are trademarks.  A trademark is defined as an intellectual property right that protects words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of goods. I can better describe this definition in a couple of examples:

Example 1. Coca-Cola is the trademark associated with the soft drink Coke. However, Coca-Cola recently adopted a coined phrase: "Enjoy the Coke Side of Life." You better believe Coca-Cola trademarked that bad boy as soon as it was conceptualized.

Example 2. Atlantic Station is the trademark associated with the Live, Work, Play Community here in Atlanta. Great concept. They also have a coined phrase, "Life Happens Here." This tag line or phrase is also a trademark associated with the community Atlantic Station.

So it is very important to trademark all tag lines or phrases associated with your product or service.  Here are a few practical tips to ensure you are protecting all names, words, and phrases associated with your brand:

1. If you already have a tag line or coined phrase associated with your trademark, make sure you include it when you complete and file your trademark application.  For example, you would submit your mark, XYZ Company, (name of co.), We Work for You (tagline) as one trademark.

2. If you later create a unique phrase or tag line that your company becomes associated with after you have already applied for and received a trademark for your company name, logos, etc., simply submit another application to trademark the phrase.  It will prevent others from using the phrase and protect your brand.

I hope this information was helpful.  If you have any further questions or concerns,  please email me.

Practical Tips for Bloggers when protecting your copyrighted works.

Now for the bloggers out there.  Use these practical tips to properly protect your copyrights on the internet.

1. Do place a copyright notice on your site.  This will not stop individuals from stealing your work, but it may give them pause.

2. Use Copyscape.  Copyscape will search the web for copies of your work on the internet. Having the DO NOT COPY widget on your blog will deter some infringers.

3. Register your copyrighted post with the US Copyright Office.  I know you are thinking that registering every post will cost you a fortune especially if you have been blogging for more than a year.  Well good news!  The US Copyright Office will allow an applicant to register collections of works.  So you can register your archives from a particular year as one collection.  The cost to register a collection of works is the same $45 fee ($35 online) as it is to register one work. For example, you can register all of your posts from the year 2007 as one collection. Entitle the Collection, "My Blog Name, 2007 Collection."

4.  Moving forward and if your budget allows, register small collections of your post every 90 days.  This will ensure that you can go after a recent infringer within the 90 day time period in order to receive guaranteed federal monetary damages. Read about this 90 day rule here.

I hope this information was helpful.  As always if you have any further questions please, contact me at lgivens@phillipsgivenslaw.com.

Pros and Cons of Registering your Copyright with the US Copyright Office

Hello!

Copyright protection is currently a huge issue on the internet.  As a blogger, I hear many complaints from fellow bloggers that this site, publication, or individual used their blog material as their own without giving the original author (blogger) credit.  This is very frustrating because writing is hard work and nothing is more deplorable than when someone takes credit for something you put your time and effort into.  Below I am going to discuss some basic rules and principles of copyright law and then in my next post, I will give you some practical tips to protect your work on the internet.

A copyright owner is one who can prove that the work is an indepedent original creation.  A copyright owner has the exclusive right to: 1) make the work, 2) copy the work, 3) sell and distribute copies, 4) make a derivative (book or movie) of the work, 5) perform the work publicly, and 6) display the work publicly. Any person who excercises any of the above 5 rights of the copyright owner, without the owner's permission, is a copyright infringer.  1976 U.S. Copyright Act. 

Once an individual creates an independent original creation, that individual automatically owns a copyright.  This copyright is obtained without registering the work with the Library of Congress, U.S. Copyright Office and is valid for the life of the copyright owner plus 70 years.U.S. Copyright Act.  However, in order to file a copyright infringement action against an infringer and take advantage of certain remedies (resolutions) established by the federal government for those who are victims of copyright infringement, a copyright owner MUST register their original work with the US Copyright Office. 

Remedies available to un-registered (US Copyright Office) copyright owners are the following:

1. Go to civil court to obtain an injunction (an order from the court) demanding that the infringer stop the infringement.

2. The copyright owner's actual damages (professional harm, revenue, etc.) from the infringment and any profits made by the infringer.  However this has always been very hard to prove.  It is well known in copyright practice this is nearly impossible to prove.  So most copyright owners simply end up with an injunction and no monetary award.  Attorneys fees may also be awarded.

Remedies available for registered works with the US Copyright Office:

1. Statutory Damages.  Once you have established copyright infringement you can elect for statutory damages (monetary awards set by federal law that are automatically given to the copyright owner ) which are no less than $750 and up to $30,000.  Also the winning party is awarded attorney fees and costs. So you do not have to prove loss revenue, harm, or gain of profits by the infringer. So essentially, if you register your copyright with the US Copyright Office, and you can prove copyright infringement, you are guaranteed to receive some monetary award.  If your copyright is not registered, your likliehood of receiving any monetary award is very sketchy. 

So it is very good practice to register your copyrighted works as soon as they are created. Why? Guaranteed statutory damages are only available to those who register their original material within 90 days of publication of the work or those who register before the infringement takes place.  A copyright application only costs $45 ($35 on line) to file with the US Copyright Office.  Plus you can complete the application and file it yourself.  Click here for application information.  Just make sure you read the instructions for completing the application thoroughly and complete it as instructed. You can hire an attorney to complete it for you, but you will have to pay legal fees and the application fee.

I hope this information was helpful.  If you have any further questions or concerns, please email me.

Practical Tips in Fighting and Winning a Domain Name Dispute

Hello!

Thank you for coming back! In my previous post I gave an example of a common problem many companys and bloggers deal with on a daily basis. Here is the example:

Example: You go ahead and register your domain name, Wethepeople.com. Hey you own it! But then some company comes along and registers Wearethepeople.com. You both are in same business and when you do a google search, their name comes up first. You have built a brand name, reputation, and following with Wethepeople.com. They are diverting traffic from your blog and causing confusion. What can you do?

So what can you do? Below are several cost effective and practical tips in fighting and winning a domain name dispute:

1. Hire an attorney to write a simple letter conveying your right in the domain name and demanding that the offender transer the domain name to you, the rightful owner. You or an attorney can use the service, Whois.net to find out the name of the individual or company that registered the domain name; address and or phone number of the registrant; and the name and address of the hosting company.

From my experience, a letter from an attorney stating your lawful right to the domain name, i.e., you own a valid trademark in the domain name; and evidence that their registration of a similar domain name is diverting traffic from your site, is usually enough to scare the offender into doing what you want.

Hiring an attorney to write a 1-2 page letter will usually take about 1-2 hours.  2 hours of legal fees is peanuts to what you could be losing in lost traffic and sales.

2. If the cease and desist letter from an attorney does not work, you can file a domain name dispute with ICANN.  ICANN, the Internet Corporation for Assigned Names and Numbers, is the governing body for internet (domain) names.  ICANN has a dispute resolution procedure to resolve domain name disputes.  In order to file and be successful at a domain name dispute, you must show the following:

a. The domain name is identical or confusing similar to the trademark the domain name owner has in the domain name;

b. Demonstrate that the offender registered the domain name in bad faith, i.e., they registered the domain name to divert traffic from your site; to cybersquat (sit on the name in order to strong arm you into purchasing it); or the offender registered it to prevent you the rightful owner from doing so.

c.  Show that the offender does not have any valid rights or use for the registered domain name. For example, they do not own a business that includes the domain name or they or their company is not generally known by the domain name.

The cost to file a domain name dispute with ICANN is $2600 for a 3 member arbitration panel and $1300 for a single member arbitration panel.  

Also, remember to register your trademark which contains your domain name before filing a dispute with ICANN.  Registering a trademark with the USPTO can be costly but is so worth the cost and effort.  However, registering your trademark with your state is relatively inexpensive.  Trademark registration is good evidence that you legitimately own the trademark in question.  It definitely helps when presenting a case before ICANN.

I hope this article answered any questions you may have had about domain name disputes.  If you have any further questions, please contact me at lgivens@phillipsgivenslaw.com.

Our next topic will discuss how to properly copyright written material.  This article is especially for you bloggers!

 

What every blogger should know about trademark law before and while blogging

Hello Friends!

I felt the need to write this article because one, I am a blogger.  Also check me out at www.luxetips.com.  And two, I have had discussions with so many bloggers about whether they owned a trademark and how to protect the good name and reputation they have built through blogging.  I will give you an example of some of the pitfalls bloggers have encountered.  

Example 1:  You register a blog with blogger and your blog name is Widgets.blogspot.com.  You build up a reputation and readership and you decide you want to own your own domain name. You contact a hosting company and try to register Widgets.com, but low and behold, someone else already owns the domain name.  You contact the owner of the domain name and they will gladly let you have it.....for the low low price of $10,000.00! Yikes.

Example 2: You go ahead and register your domain name, Wethepeople.com.  Hey you own it! But then some company comes along and registers Wearethepeople.com.  You both are in same business and when you do a google search, their name comes up first.  You have built a brand name, reputation, and following with Wethepeople.com.  They are diverting traffic from your blog and causing confusion. What can you do?

So fellow blogger and potential bloggers follow these simple rules to ensure your blog, your brand and trademark, is protected and avoid becoming prey to infringers and cybersquatters.

1.  A blog name is a trademark.  One misconception many bloggers have is that they do not think they own a trademark because they are not organized as a company.  If you a blogger and publish daily, weekly, or monthly articles on your blog, you are in the business of publishing. Also if you receive advertising revenue, or in-kind gifts, products, etc to review on your blog, you are actively engage in commerce - the ability to conduct business transactions.  A trademark is defined as words, symbols, phrases or designs which the public associates with a single source of goods or services. By law you establish trademark rights by actual use of the mark in commerce or filing an intent to use the mark with the United States Patent and Trademark Office, USPTO.

2. Do a preliminary search for your blog name. Make sure the blog name you choose is not identical or too similar to a brand name, company, or other blog.  You can accomplish this by doing a Google Search.  Now Google may not capture every identicial or similar name, (only a comprehensive trademark search will do this) but those that are registered with government agencies and are on the web will be found.  The last thing you want to receive is a cease and desist letter from me,  a trademark lawyer, stating shut down your blog or else!  

3. Register your domain name.  A MUST MUST MUST! You must own your blog's name. Before starting a blog, you have to own your name.  I can't repeat it enough.  Now there are tons of services like blogger, typepad, and wordpress that will let you create a blog name through their service but this DOES NOT mean you own the domain name. You can choose a domain registrar like VL Hosting to register your name for a nominal fee. Sometimes fees are as low as $10.00 per year.  Why do this? Because there are mean lean sharks out in the blogosphere called cybersquatters.  They literally surf the net for brand names and company names that do not have registered domain names and register them so they can hold them (cybersquat them) until you come crying and begging for them to release it.  They will but for an astronomical fee.  

4. Register your blog's name, phrases, and design as a trademark.  It is just good practice and planning to register your blog as a trademark.  You never know how successful you and your blog may be.  Without registering your trademark, you do own a lawful common law trademark right (a trademark right without federal or state trademark registration). However to bring a trademark infringement action against an infringer you must register the trademark with the state where you are located or the USPTO.  Also registering your blog as a trademark is good evidence that you have a legitimate interest in your blog's domain name, if you have to file a domain name dispute against someone who purposely registers a domain name similar to yours in order to steal your traffic.  I do understand that obtaining federal trademark registration can be expensive, but it is relatively inexpensive to register with your state. Depending on the state where you are located, fees can be as low as $15.00.  But it is smart to get some legal advice.  A poorly drafted trademark application will be rejected.

If you are a blogger already engaged in publishing your blog and have not completed any of these steps, I would recommend that you complete these steps as soon as possible! Believe me accomplishing these simple tasks will save you headaches and potentially money.  

I hope this article was helpful.  If you would like further information, please contact me at lgivens@phillipsgivenslaw.com.  Please stay tuned for my next topic:  How to file and win a domain name dispute.

How to Legally Protect Your Intellectual Property

Hello again friends!

I hope your summer has been awesome! Our next topic is how to legally protect your intellectual property (IP).  There are different steps to take to protect your IP rights which is based on the type of IP you own.  Check out the necessary actions needed to ensure your IP is adequately protected below.

1. Patents. First hire a patent attorney.  A patent attorney is an attorney who has a science or engineering background and is trained to effectively evaluate the patentability of inventions. A patent attorney can determine whether your invention is unique; assist you in developing a prototype (ensuring the prototype is legally sound) for submission to the United States Patent and Trademark Office (USPTO), and prepare your patent application to the USPTO.  A patent attoreny is also trained to evaluate your invention and application to determine if the invention infringes on any other government issued patent. 

2. Trademarks. First hire a trademark attorney.  A trademark attorney is trained to determine if your trademark (identifying marks, logos, names of your company) infringes on the priority trademark of another owner or if another trademark infringes on your priority right.  A trademark attorney accomplishes this by doing a comprehensive trademark search.  This search usually includes a search of the USPTO database, all state registered trademarks, DBAs (doing business as), business names, internet, domain names, and common law trademark rights.  The trademark attorney then evaluates the results of the search and uses common law and federal trademark law to determine competing rights and priority rights.  If the trademark attorney determines your mark is unique, he or she will recommend that you move forward with federal and state trademark registration.  If the trademark attorney determines that you have a priority or competing rights with another company, your trademark attorney may recommend moving forward with a trademark infringement action against the company or reorganizing your company or business and choosing a different mark. 

3. Copyrights. Hire a copyright attorney.  A copyright attorney will assist you in registering your copyright with the Library of Congress, Copyright Office. The Copyright office will review their database to determine if there are any competing rights.  If not, the copyright will be isssued.  A copyright attorney can also initiate a copyright infringement action against an infringer (someone who is using your original work of authorship as their own).

Remember to always hire an attorney when seeking protection for your IP rights.  An IP attorney can save you a lot of money and grief! I hope you found this article helpful.  Our next topic is "What every blogger should know about trademark law before and while blogging"

Intellectual Property Rights: To Protect and Not Infringe:

Welcome Back!

Our next topic is why it is important to protect your intellectual property rights.   Check out the top 2 reasons below:

1. Most importantly, a competing business may decide to use your intellectual property (names, logos, inventions, written works, etc.) as their own due to the fact your business has built goodwill or has developed a strong brand.  This scenario can result in lost customers, sales, and business.

2. Second, if you do not protect your intellectual property rights, your business can miss out on the opportunity to earn royalty income from licensing of your intellectual property.

In addition, it is important that you or your company are not committing some of the offenses above.  So before bringing intellectual property to the market, do a search (you can use Google as a preliminary search, but you should hire an attorney to do a search) to determine if another business or individual has competing rights against your intellectual property.  If you introduce intellectual property to the market that infringes on another's rights, your company's growth may be restricted or legal action can be taken against your company.

Next topic: How to protect your particular intellectual property

Intellectual Property Law 101

Hi Readers!

Glad you are back!  This post will explain what intellectual property is and will define each type of intellectual property.  If after reading this post, you have any further questions, please contact me at lgivens@phillipsgivenslaw.com.

1.  Intellectual Property are creations of the mind:  They include: inventions; literary or artistic works; symbols, names, and images used in commerce.

2. There are three basic intellectual property rights:  patents, trademarks, and copyrights.

3.  A patent is a property right granted by the US Government to an inventor to exclude others from making, using, offering for sale, or selling the invention throughout the US or importing the invention into the US.  For example, the formula created for Coca-Cola is an invention. Also if you create a new product this is an invention.

4. A trademark is an intellectual property right that protects words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of goods.  For Example:  The logo for Coca-Cola which appears in white cursive lettering is the trademark for Coca-Cola, the company.  When we see the logo for Coca-Cola we automatically associate it with Coke, the drink we consume.

5. A copyright is an intellectual property right that protects works of authorship such as writing, music, and works of art that have been tangibly expressed.  For Example: A blogger's original writing is a copyright.  Paintings are copyrights.  Music are copyrights.

So I pose this questions?  What type of intellectual property do you own?  In my next post, we will discuss the importance of protecting your intellectual property rights and taking the necessary steps to NOT infringe on someone's legitimate intellectual property.

This blog is for everyone!

Hello!

I started this blog to be an informational tool for people who need basic information about intellectual property law.  This include individuals, bloggers, small business owners, mid-sized business owners, etc.   But first things first.....Here is my Disclaimer:  The information provided in this post and on this blog does not constitute an offer of representation or create an attorney-client relationship with my firm, Phillips Givens LLC. The information contained on this blog is designed to apply to general situations and may not reflect current legal developments. You should not act or rely on any information on this blog without seeking the advice of a licensed attorney in your state regarding your specific situation. I assume no liability or responsibility for errors or omissions in the content of this blog.  I, Latoicha Givens, is the person who is solely responsible for the contents of this blog.  If after reading this blog, you feel compelled to contact me for further information or representation, please email me at lgivens@phillipsgivenslaw.com.  Whew! Now that we got that out of the way, lets get to the fun stuff.

What are the basics of intellectual property law?  Stay tuned to find out.....