Sunday, September 26, 2010

Congress Considers Copyright Protection For Fashion Designs by Adam G. Garson, Esquire

Being intellectual property lawyers, our office frequently receives calls from young entrepreneurs asking us to copyright their latest fashion design. Sadly, we tell them that copyright does not offer the protection they seek and, in fact, they will have to enter the market place with the expectation that their designs, if good enough, will inspire "knock off" copies.

This state of affairs may change, however, should the Design Piracy Prohibition Act (H.R. 2196) become law. The bill, which was introduced in April by William (Bill) Delahunt, U.S. Representative, Massachusetts 10th District, offers copyright protection to fashion designs broadly defined as clothing, handbags, duffel bags, tote bags, and eyeglass frames.

The proposed legislation amends Chapter 13 of the Copyright Act, which offers design protection to a single category of useful articles, the design of boat hulls. Under current law, fashion designs are deemed "useful articles," defined by the Copyright Act as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." 17 U.S.C. § 101.

Designs of useful articles can be protected under current copyright law "only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." Limited protection may be afforded by trademark (trade dress) and patent (design patents) law; however, these have not been practical alternatives for the fashion industry.

The proposed law provides only a three-year term of protection for fashion designs because fashion trends are typically short-lived. Other features of the bill provide that applications be filed with the U.S. Copyright Office, which would be required to maintain a publicly accessible, computerized database of protected fashion designs, including images. The bill makes protection unavailable for fashion designs that have been made public by the designer more than six months before the application for registration. It also narrows the definition of "innocent infringement" to impose liability for those who had a reasonable grounds to believe that design protection was claimed; and increases damages for infringement.

Keep in mind that Congress' previous attempts at providing copyright protection for fashion designs have been largely unsuccessful. We will follow this bill with interest. Click here to review and track this legislation.

Adam G. Garson is an attorney with the Media, Pennsylvania office of Lipton, Weinberger & Husick. LWH is an intellectual property, technology, litigation, and business law firm based in the Philadelphia region since the early 1990's. LWH provides its clients with a full range of legal services related to patents, trademarks, copyrights, trade secrets, Internet law, domain name disputes, business law, and litigation.

For more than 20 years, Adam Garson has represented individuals and business of all sizes in a wide spectrum of business, commercial litigation and intellectual property matters. He now concentrates his practice on copyright, trademark and computer/Internet law with a focus on assisting entrepreneurs and early-stage businesses, particularly in the technology sector. He also represent individuals in the entertainment and publishing industry.

Adam G. Garson, Esquire
201 North Jackson Street
Media, PA 19063
Voice +1 610.565.7630
Fax +1 610.565.7631

Trademark a Slogan to Protect Your Company From Business Theft by Wendy Moyer

When most people think of business theft they think about robberies, shoplifting, or embezzlement. However there's a much more devious type of theft that can happen to business owners that most people don't think much about.

It's called intellectual property theft and way too many companies do not do enough to prevent their intellectual property from being stolen. Then when it does happen they may not do anything about. That's because they may not realize the implications of the theft and how much it could end up costing them.

Intellectual property theft is the misuse or theft of proprietary information.

Some examples are:

1. Trademarks

Trademarks protect a company's name, logo, product names, package designs, and slogans.

2. Trade secrets

Trade secrets protect things like a restaurants signature recipes.

3. Copyrights

Copyrights protect things like computer code, video and audio recordings, and written material.

4. Patents

Patents protect discoveries and inventions.

How Much Can Intellectual Property Theft Cost a Company?

Even though trademark infringement, copyright violations, and other types of intellectual property theft might not cause any immediate financial losses they can ultimately be even more costly than physical thefts.

Records from the U.S. Department of Justice from this past decade show that when intellectual property theft defendants were convicted more than half of them had stolen intellectual property valued at more than $70,000. In addition, there were awards of a minimum of half a million dollars for almost 60% of the cases.

If your company has a slogan the only way that you will be able to protect it from being stolen is by having it trademarked.

After your slogan is trademarked you will always want to mark it clearly.

There are two basic trademark symbols. If you haven't registered it (which you should), you can garner some protection if you use the basic trademark symbol every time that the slogan (or your product name, etc) is mentioned.

After you register a trademark you can then use the symbol wherever it is appropriate.

If you have found that your trademark has been infringed upon on one of your websites your company can send a "DMCA notice" to the company that hosts the offending entity's website. This notice, which is part of the Digital Millennium Copyright Act (DMCA), should also be sent to the search engines and any other related parties.

The notice should force the hosting provider to remove the content. When the search engines receive the notice they may de-index the website so that potential new visitors will not be aware that the offending website even exists.

Whether trademark infringement has happened on line or off line you should also consider sending a cease and desist letter that details the trademark infringement and requests that the offending party promptly remove it and discontinue its use.

Next, to discover how easy it is to trademark a slogan, go to

Monday, September 20, 2010

When and How to Copyright Your Book by Melinda Copp

Copyrighting your book is an important step in the process of becoming an author because it helps protect against people taking or using your work without permission. But how do you get a copyright? And when should you file for one? If you're unsure about how to protect your work, consider the following suggestions.

First, a quick disclaimer: I am not an attorney, and this article should not be taken as legal advice. Please use this only as a guide for where to find more information about how to protect your work. And, keep in mind that this is for authors in the United States. Laws in other countries may be different.

Okay, so here are the most common questions about copyrighting a book.

How do I copyright my book?
The process is actually pretty easy. After your book is published, all you have to do is go to the U.S. Copyright Office web site download and complete the paperwork, and send it in with your payment and two bound copies of your book. If you like, you can file before your book is published, but then after publication, you'll need to re-file it as a published work.

Do I need to copyright my book before I show it to an agent/editor/writing coach/colleague/teacher?
No. As soon as you write your book, it's actually copyrighted. You automatically own all the rights to everything you write, and if someone tries to take it and claim it as theirs, you can pursue legal action against them and win. Filing an official copyright just gives you added protection in case something should happen.

I can't tell you how many times I've asked a potential client to send me their manuscript and they've said, "I haven't copyrighted it yet--o how do I know you're not going to steal it?" This is a common concern, but in all the years I've worked in the book world, I've never heard of anyone having their manuscript stolen by an editor or agent. Ever. Why? Because, like I said, your work is legally protected as soon as you write it.

What about the title?
Sorry. You can't copyright a title, which means that anyone can use the exact same title you've used for your book. However, you may be able to trademark it. For more information on that, visit for the U.S. Patent and Trademark Office.

How can I copyright my book idea?
You can't. Copyrights don't protect ideas, concepts, systems, or methods. If you write a description of your idea, or draw a picture of it, then you can copyright that.

Can I put the (c) symbol on my work, even if I haven't filed the official paperwork?
Yes, and you should. Use the symbol of the lowercase "C" inside the circle, or just (c), followed by the date the work was created to show that your work is protected.

Protecting your book with a copyright is essential. When you do it is up to you, but you'll definitely want to file after publication. It will help protect your work against plagiarism and use without permission. And if you have additional questions, the U.S. Copyright Office web site or talk to an attorney.

Melinda Copp helps aspiring self-help, business, and nonfiction authors write and publish books that establish expertise, achieve their goals, and share their message in a compelling way. Visit for a free copy of her Write Your Book Quick-Start Mini E-course.

The Importance of Registering a Trademark For Your Business

One of the most important investments you can make in your business is to protect your company's unique look, or "face" of your company. Whether this is in the form of a name, phrase, logo, word or symbol, if it represents your company, it should be protected. That is why officially registering a trademark for your business is such an important step.

There are many negative consequences that could happen to your business should you neglect to register a trademark. As a business, you could lose the image of your business should another company have the same or similar name, logo or phrase. If this occurs and the other company has their trademarks registered, you would not only lose yours, but may have to pay monetary damages for infringing on their trademark(s).

Unfortunately, many businesses have to deal with these and other consequences simply by the lack of having registered a trademark. Imagine the consequences that would affect your business should another company's registered trademark be the same or similar to yours.

Your business may have to completely re-design your logo, change your business name or create a new phrase or slogan. This could confuse your current customers and clients, vendors and affiliates. Not to mention the costs of re-printing all materials and the advertising it would take to get your company's new image in the public eye.

By registering your trademark, you are protecting your business from this and other possible negative scenarios that can happen to businesses that lack a trademark. Trademark registration protects your business and unique company logo, slogan or other image that you and your customers depend on to stay consistent and represent your products or services.

By registering your trademark, you are giving your company as well as yourself as a business owner several means of protection. Federal registration protects your trademark across the country, even if you aren't a national company. Depending on state laws, state trademark registration can offer additional trademark infringement protection.

The negative affects of not registering your trademark are just too great to neglect this important step for your company. And the protection that registering your trademark provides is too beneficial for you to be without.

Unfortunately, many businesses do neglect this step because of the time and hassle that a trademark registration process can take. However, there are companies and services that can help your company through the process, saving you time and money and getting the necessary work done so you can feel confident and secure.

Wendy Moyer is a professional writer. Trademarks 411 allows you to register a trademark easily with services including trademark searching and trademark application processing.

Monday, September 13, 2010

Social Networking and TMI - Common Legal Mistakes People Make by Michael Wechsler

Over 100 million people use popular social networking and microblogging sites such as Facebook and Twitter. Every day members are having so much fun sharing their personal lives with their fans aka "followers" or with their "friends", they forget to act carefully and prudently while online. It's easy to lose yourself in the moment, such as drinking at a bar. But unlike having loose lips at the bar, your words on a social network stay there indefinitely for all to see - and that can cause significant problems. The bottom line is that Twitter, Facebook and other social networks can cause people to publicly provide "TMI" - Too Much Information.

Perhaps the most common question I have seen asked in legal advice forums is whether a person can lose their job due to a posting on Facebook or Twitter, usually one that might cast a negative light on the employer or their job. The answer to this question should be obvious - there is no First Amendment or other legal "right of free speech" to share whatever negative opinions you may have about your job and still remain employed.

A typical example of what I hear includes the following. An employee might be bored at work and wants to share this thought (like numerous other fleeting thoughts) with her "friends" on Facebook. What she might forget is that some of these "friends" might include her boss, other employees or people in common with the boss. When the employee reports for work the following day, she's told that her services are no longer needed and possibly she is told the motivation for her termination.

If the employee had a case against her employer based upon some other legally protected right, she may have made proving her case significantly more difficult. An employer typically does not need to explain to the employee the reason for termination but it becomes even more justifiable in this instance based upon the employee's own admission that she does not like her work and may not care to perform at a high level. In the United Kingdom a young woman was fired as a result of her Facebook posts. The employer's justification was that she was obviously not of the right state of mind to perform and her level of dissatisfaction and lack of enthusiasm at work caused low morale. It is difficult for any lawyer to argue against this position.

A more egregious case of misconduct occurred where a young man went out drinking one evening and called in work to take a sick day the following morning. He posted a short blurb on his Facebook page about his prior night's carousing until causing his own illness and need for a sick day. The human resources department at this man's workplace discovered his Facebook post and decided that it would terminate him since sick days were not meant to be taken in this manner. Once again, it would be difficult for any lawyer to find fault with the company's actions even if a legal right to work existed.

The bottom line - always think before you share a post on a social network. You should think twice as long before microblogging on sites like Twitter, where it's even easier to share something dangerous without thinking. There are likely no legal rights that will protect you from the consequences of your own actions of "speaking" in cyberspace without care.

Michael M. Wechsler, Esq. is an experienced lawyer and administrator of the Free Legal Advice Forums at since 1995. As a successful attorney, he has worked on cases covering Internet law, copyright and trademark, personal injury, medical malpractice, employment and discrimination and immigration law. Michael is also known as "The Law Professor" and has a popular Internet and Technology Blog.

Trademarks - Three Reasons You Should Trademark Your Business Name

If you own a business, it's a good idea to trademark your business' name. There are several reasons why this is a very important decision to make to ensure the stability of your business' future.

a. Protection - By trademarking your business' name, you receive federal protection as well as state law protection. The state protection varies from state to state, so it's important to check with your state to determine the level of protection you would receive if you had registered the trademark with your state.

b. Ownership - by trademarking your business name you own your business. No one else can use your business name for their own business reasons, and it ensures to your customers and clients that any business by that name is yours. If you don't trademark your original name, and then you change your business name, a new company can take your original name and confuse your current clients. Ownership of the name also allows you to expand upon the name and business in the future, should you want.

c. Money - By trademarking your business name, you hold all rights to the name itself. If your company uses a name that has already been trademarked, you may be required to immediately change your business' name and give up any and all profits for the use of the trademark. This may also include damages, fines and attorneys' fees.

Trademarks for your business name will definitely be beneficial to you in the long run. It will provide protection, true ownership of the business and prevent you from having to pay a great deal of money in legal fees in the end.

Tuesday, September 7, 2010

Trademark a Name and Logo - Together Or Separate? by Shannon Moore

Trademarks can be names of products or services, logos, slogans, packaging and even sounds and smells. In essence, a trademark can be almost anything that is used to identify a particular product or service. Registering a trademark grants the owner exclusive rights to the mark within the specified industry. Of course, it's necessary to research the mark comprehensively prior to filing to ensure that there is no possibility of infringing upon another party.

Let's assume you've done your due diligence, had comprehensive research conducted and your name and logo are legally available. The next step is filing for a Federal trademark.

Now when it comes to filing, a big question is should the name and logo be filed together or separately?

This decision is going to depend on a number of circumstances, as with most things in the trademark world. Let's take some time to go through a few different scenarios:

1) Your comprehensive trademark research on the logo shows that it is legally available whereas the trademark research on the name shows a similar, not the same, name within a related, not the same, industry. Your trademark attorney may then advise you to file the name and logo together to ensure registration.

2) In showing your mark (e.g. advertising, web site, tags or labels, etc.), the logo is ALWAYS shown with the name but the name is sometimes shown without the logo. In this case, you may want to file two applications - the name and logo together AND the name alone.

3) The logo you're using is the crux of your brand and the name you're using is entirely descriptive of your goods/services. You may want to trademark your logo only OR trademark your logo alone AND trademark the name & logo together.

An important thing to keep in mind regardless of your particular situation is that whatever is filed with the USPTO is exactly how you should be using the mark. The USPTO wants to see your mark as you present it to your customers.

Shannon Moore is the General Manager for TradeMark Express. Since 1992, TradeMark Express has met the needs of their clients with comprehensive research, application preparation, attorney referrals and trademark consultation. For further details, please visit us on the web at TradeMark Express or call Shannon directly at 800.340.2010.

Writing - Copyrights and Trademarks Protect You by Marilyn Schwader

When most people consider writing a book, they don't think
about Trademarks. However, I highly recommend that you
leverage your writing for multiple purposes, and that's why
registering a Trademark for your concept is a good idea. If
you use your writing as the basis for workshops and other
products, it's in your best interests to protect your
concepts with a Trademark.

To paraphrase the definition of a Trademark given at the
official web site, a Trademark is a symbol, a
word, a phrase, or a design, (or any combination), used to
identify and distinguish the unique source of goods. Note
that a Service Mark has the same definition as a Trademark,
except as related to services instead of products.

You are not required to register a Mark. Instead, you can
establish your rights to the Mark with a record of
legitimate use of it. However, there are several
advantages to owning a Mark that is federally registered.
The most notable is your premier position if anyone else
should attempt to use your Mark after your official
registration date.

Regardless of whether you've made an application to the
USPTO for a federally registered Mark, you may use the TM
and SM symbols any time you claim Mark rights. However, the
federal symbol for registration (encircled "R"), may only
be used after the USPTO has received your application,
processed it, and officially registered your Mark. One more
thing to note: the federal registration symbol can only be
used in connection with the goods or services that are
specifically listed in the federal documents.

Of course, there is a difference among the purposes of
Trademarks, copyrights, and patents. Patents protect a
inventions. Copyrights protect original literary or
artistic work.

Your work is copyright protected under common law when you
create it. And by printing the work with the copyright
notification included, you have signified your claim to the
work. However, to have it officially recorded, you will
want to register it with the Copyright Office. Keep in mind
that the government does not enforce the copyright. If
someone were to infringe, it would be up to you to protect
your rights through a civil suit.

Contact the Copyright Office to get the forms. Call 202-
707-3000 and request copyright package 109, or go to the
web site, and fill out form TX. To
register your copyright of a book, take these steps: 1)
Print the copyright notice on the copyright page (title
page). You may use the word copyright, but "C" in a circle
says the same thing and is necessary for international
protection. Also, add "All rights reserved." The notice
must appear in all copies of the book to protect you. The
copyright should be in the name of the owner. 2) Publish
the book. 3) Register your claim with the Copyright Office
within three months of the book being published.

New copyright duration is for the author's life, plus
fifty years. Since your ownership is part of your estate,
mention it in your will. Everything is protected by the
copyright, (text, graphics, etc.), except titles. Titles
can't be copyrighted. However, does the title fit the
definition of a Trademark? If so, you can claim it that
way. An example: "Chicken Soup for the Soul" is Trademarked
because it can't be copyrighted. No one actually would use
that title for their own creation, but if it weren't
Trademarked, anyone could legally profit from using the
phrase to market other products.

Cover all your bases and use the means available to
protect your creation. By registering your copyright and
your rights in a Mark, the safeguards are prepared if
someone tried to use your work as their own.

As a publisher of the "A Guide To Getting It" book series, Marilyn J. Schwader has made a study of topics related to writing. She is contributing author of articles for Acorn Writing News [] your premier resource on-line for information on writing. Find the archive of articles at: []