Hello!
Since I have been practicing trademark law, individuals always ask me if they can trademark their legal names. This particularly becomes an issue when the individual has developed a reputation as a recognized leader in their field; earns a salary from speaking engagements; writes published material; is a recognized inventor, or is a celebrity.
The trademark laws state that common first and last names can be trademarked if they are distinctive, i.e, developed a secondary meaning; or used to identify a source of goods, services, or talent associated with the individual. Lastly, the goods, services, or talent must be sold in commerce.
I will use the name Bill Gates as an example.
How can a common name like Bill Gates become distinctive? As stated above, a common name acquires distinctiveness if it develops a secondary meaning. When someone sees or hears the name Bill Gates they automatically think the inventor of the computer operating system, Windows. Thus Bill Gates' name has developed a secondary meaning, i.e. inventor of Windows. In addition, the name Bill Gates is associated with the origination of the product Windows and Microsoft Software. Lastly, Windows and Microsoft are sold in commerce in the U.S. and around the world. As a result, Bill Gates is a name that can be trademarked and protected from use by other individuals for commercial gain.
So when wondering if you can trademark your legal name. Consider these factors?
Have you become famous in your field?
Do you gain an income from the use of your name?
When people see or here your name, do they automatically think of a product, service or talent you offer?
If so, I would recommend that you hire a trademark attorney to possibly trademark your name. In addition, I would suggest you register your name as a domain name asap!
Thursday, March 26, 2009
Tuesday, March 17, 2009
When Choosing a Business Name Also Perform a Trademark Search!
Hello!
When choosing to go into business, there are several imperative tasks you must accomplish to ensure you are legally compliant. They are:
1. legally organize your business with the Secretary of State's Office;
2. obtain a valid business license;
3. obtain a federal employee identification number and if needed a sales tax number;
4. claim and obtain a trade name (if needed);
5. claim and apply for a trademark
However, most new business owners never consider claiming and applying for a trademark until it becomes a necessity or someone else asserts claim to their trademark. For this very reason, I advise my client to:
1. do a preliminary search to ensure that a trademark right has not been claimed in the company's business name;
2. after a trademark search has been completed, and the business name appears free from trademark claims, immediately apply for state and federal trademarks.
In my legal opinion, it is imperative to perform a trademark search as soon as you choose a company name. Why? If you choose a name that already has priority trademark rights, and you have spent considerable funds establishing and growing the business, you may have to change your name. Ouch! In addition, if no trademark rights have been asserted in your company name, you would want to claim ownership of the trademark. Very often people tend to infringe on company and or trademark names if they see the potential in its success! Remember, the first to use the name in commerce is the priority trademark owner!
A preliminary search on Google will cost you $0. However, to ensure you are not infringing another trademark owner's rights, a more comprehensive search can be done for $550. In my opinion, $550 is a small price to pay for a piece of mind.
I welcome your thoughts!
When choosing to go into business, there are several imperative tasks you must accomplish to ensure you are legally compliant. They are:
1. legally organize your business with the Secretary of State's Office;
2. obtain a valid business license;
3. obtain a federal employee identification number and if needed a sales tax number;
4. claim and obtain a trade name (if needed);
5. claim and apply for a trademark
However, most new business owners never consider claiming and applying for a trademark until it becomes a necessity or someone else asserts claim to their trademark. For this very reason, I advise my client to:
1. do a preliminary search to ensure that a trademark right has not been claimed in the company's business name;
2. after a trademark search has been completed, and the business name appears free from trademark claims, immediately apply for state and federal trademarks.
In my legal opinion, it is imperative to perform a trademark search as soon as you choose a company name. Why? If you choose a name that already has priority trademark rights, and you have spent considerable funds establishing and growing the business, you may have to change your name. Ouch! In addition, if no trademark rights have been asserted in your company name, you would want to claim ownership of the trademark. Very often people tend to infringe on company and or trademark names if they see the potential in its success! Remember, the first to use the name in commerce is the priority trademark owner!
A preliminary search on Google will cost you $0. However, to ensure you are not infringing another trademark owner's rights, a more comprehensive search can be done for $550. In my opinion, $550 is a small price to pay for a piece of mind.
I welcome your thoughts!
Thursday, March 12, 2009
New Kindle Audio Feature: Is Text to Speech Reading essentially the Audio Book experience?
Hello!
I hope all has been well in your world!
As many of you may know, Kindle has added an audio feature that allows a user to click a button and the book is read aloud. Cool right? However, the Author's Guild, the organization that protects the rights of authors, has claimed that the use of the Audio function on the new Kindle is copyright infringement. Specifically, the Author's Guild argues Kindle was granted the use of copyrighted material for electronic reading only...not audio. To understand the Author's Guild argument, you must first have a working knowledge of the rights granted to a copyright holder under the U.S. Copyright laws. Those rights are as follows:
A copyright owner has the exclusive right to:
1. reproduce the copyrighted work in copies;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
US Copyright Act.
The Author's Guild argues the authors did not grant Kindle a right to create a derivative work (audio) of the electronic books. The right to create a derivative work basically means the copyright owner has a right to transform the original work into another medium. For example, transforming a painting into a sculpture; transforming a novel into a motion picture; or transforming a book into an audio reading (audio book). The Author's Guild's position is that the audio function of the new Kindle, that allows the book to be read aloud, is an audio version of the book and therefore a derivative of the original book. However, Kindle argues that the text to speech function is performed by software generated technology and is not the same as an audio book experience.
So the question is whether the text to speech function qualifies as an audio version of the books and therefore a derivative of the original work?
In my opinion, I would argue that the text to speech function is an audio version of the original work. Audio is defined as any human audible sound. Whether the sound is computer or software generated is of no consequence. Like audio books in which the original author reads the books aloud, the new Kindle Text to Speech feature accomplishes the same goal: the reader is allowed the experience of having the book read to them as opposed to reading it themselves.
Of course, the real issue here concerns revenue. If the text to speech function is determined to be an audio version of the electronic books, Kindle would have to pay the Authors an additional licensing fee for the audio function. Kindle may not want to pay this additional fee and the Authors want to make as much money as possible for their works. What does this mean for consumers? It means that we may not get the benefit and advantage of purchasing one electronic book and receiving an audio version or experience for free!
I guess we have to wait and see how this all plays out.
I hope all has been well in your world!
As many of you may know, Kindle has added an audio feature that allows a user to click a button and the book is read aloud. Cool right? However, the Author's Guild, the organization that protects the rights of authors, has claimed that the use of the Audio function on the new Kindle is copyright infringement. Specifically, the Author's Guild argues Kindle was granted the use of copyrighted material for electronic reading only...not audio. To understand the Author's Guild argument, you must first have a working knowledge of the rights granted to a copyright holder under the U.S. Copyright laws. Those rights are as follows:
A copyright owner has the exclusive right to:
1. reproduce the copyrighted work in copies;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
US Copyright Act.
The Author's Guild argues the authors did not grant Kindle a right to create a derivative work (audio) of the electronic books. The right to create a derivative work basically means the copyright owner has a right to transform the original work into another medium. For example, transforming a painting into a sculpture; transforming a novel into a motion picture; or transforming a book into an audio reading (audio book). The Author's Guild's position is that the audio function of the new Kindle, that allows the book to be read aloud, is an audio version of the book and therefore a derivative of the original book. However, Kindle argues that the text to speech function is performed by software generated technology and is not the same as an audio book experience.
So the question is whether the text to speech function qualifies as an audio version of the books and therefore a derivative of the original work?
In my opinion, I would argue that the text to speech function is an audio version of the original work. Audio is defined as any human audible sound. Whether the sound is computer or software generated is of no consequence. Like audio books in which the original author reads the books aloud, the new Kindle Text to Speech feature accomplishes the same goal: the reader is allowed the experience of having the book read to them as opposed to reading it themselves.
Of course, the real issue here concerns revenue. If the text to speech function is determined to be an audio version of the electronic books, Kindle would have to pay the Authors an additional licensing fee for the audio function. Kindle may not want to pay this additional fee and the Authors want to make as much money as possible for their works. What does this mean for consumers? It means that we may not get the benefit and advantage of purchasing one electronic book and receiving an audio version or experience for free!
I guess we have to wait and see how this all plays out.
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