Intellectual Property
Although the legal principles governing the concept of intellectual property (IP) have existed for centuries, it was the wake of the 19th Century that brought about the term "intellectual property" and only in the 20th Century did it become a more common issue. Nowadays, it is difficult to find a single intangible asset, whether it be an artistic, literary or musical work; an invention or a discovery or merely a symbol, design, word, phrase or piece of software, that is not protected by IP Law. IP deals with different types of creations of the mind for which property rights are attached. Some common forms of IP include copyrights, patents, trademarks and industrial design rights; the first of which will be our focus in this article.
The overarching concept of IP is premised on the notion of "a man's right to the product of his mind" which came from Ayn Rand, the famous Russian-American novelist, philosopher, playwright, and screenwriter. This basically means that if you (whether you are male or female) come up with an idea or creation, you are entitled to some ownership rights in that idea or creation. When described as such, the concept would seem to be appealing to virtually anyone; it seems fair and just. Why, then, is there something called "anti-copyright"?
Anti-Copyright
Defining the word 'copyright' is probably a good first step. It refers to the set of exclusive rights granted to the creator or author of an original work, embracing the right to copy, distribute and adapt the work. For example, software copyright deals with the rights attached to machine-readable software, often used by companies attempting to prevent the unauthorised copying of the software it personally created. Anti-copyright is thus, the absolute or partial opposition to copyright laws. But then one might ask: why would anyone be against the protection of a person's individual creation or idea? The fundamental anti-copyright argument runs directly counter to the classic copyright argument stipulating that, awarding developers temporary monopolies over a source of income from their works promotes creativity and development. Anti-copyright advocates maintain that copyright rarely benefits the society as a whole but rather serves to enrich a few at the expense of creativity. Furthermore, they point to flaws on both economic and cultural grounds that the concept of copyright has.
Economic Arguments
The economic arguments are founded on the notion that copyright produces an intellectual monopoly. The right of the creator to sell copies of his/her products or creations is not the controversial matter. It is the right to control how other people use their copies after sale which, is contentious according to anti-copyright proponents,as it creates a monopoly enforceable by law. Furthermore, proponents suggest that copyright laws increase the cost of creation and thus consequently decrease the incentive to create.
The French group Association des audionautes, although not completely anti-copyright, believe in moving towards the legalisation of peer to peer file-sharing where the artists can be compensated through a surcharge on internet service provider fees. Other groups such as Hipatia and Hacktivismo base their anti-copyright arguments on the concept of "freedom of knowledge", the idea that knowledge should be "shared in solidarity" and the contention that copyright law is hindering human progress.
Cultural Arguments
Do any of these arguments have any merit? To an extent, they clearly do, however the more important question we should be asking is: do they have any merit when balanced against an individual's right to benefit from an idea he/she independently created? Why should the hard work of one simply be distributed to and benefited from by others with no cost to them at all? Shouldn't an individual's hard work, effort and time be recognised and consequently awarded? The simple answer is yes; a creator is entitled to have his/her work protected and recognised and a creator is entitled to control what is done with his/her creation. But clearly this view is not shared by the leagues of anti-copyright advocates.
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Sunday, October 31, 2010
Copyright Law: An Overview by J M Dawson
Copyright law is a property protection law that protects any type of literary property, such as literary work, music, films, sound recordings, artistic work, and dramatic work of the original writer or creator. The law comes into action the moment the work is created. This law helps in protecting the rights of the writers and creators.
Works Protected By Copyright Law
Literary works includes poems, shorts stories, business letters, books, novels, and any other type of original writing. Dramatic work includes dance, sound, and mimes. Musical works includes the rhymes, the musical notes, and the materials that affect the human ear, like harmonies or orchestras. Artistic works include photographs, sculptures, architecture, and graphics. Film and sound recording or broadcasts include sound tracks and the dramatic work that goes into making films.
Infringement Of Copyright Law
Any kind of recreation of these works is considered copyright infringement, and copyright law kicks in. The copyright law does not protect ideas or patents. Patents are protected by patent law.
Copyright law comes into effect as soon as a literary work is created. However, it is a good idea to protect the copyright of the material by indicating the copyrights after the work is completed, so any accidental reuse can be avoided. Further, one can register the work at a copyright office for safety purposes. This is especially applicable to some huge literary works, or innovative work, or any other high-value work, such as novels, new research, a good story, and many more. If a work is registered at the copyright office, any claim of ownership or any claim against misuse of copyrighted material can be dealt with successfully.
There are several copyright registration options available, online registration and in paper registration to name a few, and these cost less than $100 in registration fees.
Legal Recourse
If one finds that a particular work has been stolen and reproduced elsewhere, one can file a copyright infringement claim. However, the onus is on the claimant to prove that the material was originally created by him or her and prove that it had copyrights before the other party reproduced the work. If the material is registered at the copyrights office, it is easier to win the claim; however, if it is not registered, one would need an expert attorney to represent one's case.
If one is beginning any important literary or artistic work, which is high value, and if one believes that losing the work can cost a lot financially, one can hire a copyright attorney, who will ensure that the material is protected from the beginning and adequate safeguard measures are taken to prevent any accidental or intentional infringement.
Any printed material immediately comes under the purview of copyright law. However, the value of the printed matter differs from something nominal to high value. Thus, the impact of copyright infringement also varies based on the value and type of material. It is always a good practice to immediately register any printed material with a copyright office to avoid legal hassles and financial loss that may occur in the future.
Works Protected By Copyright Law
Literary works includes poems, shorts stories, business letters, books, novels, and any other type of original writing. Dramatic work includes dance, sound, and mimes. Musical works includes the rhymes, the musical notes, and the materials that affect the human ear, like harmonies or orchestras. Artistic works include photographs, sculptures, architecture, and graphics. Film and sound recording or broadcasts include sound tracks and the dramatic work that goes into making films.
Infringement Of Copyright Law
Any kind of recreation of these works is considered copyright infringement, and copyright law kicks in. The copyright law does not protect ideas or patents. Patents are protected by patent law.
Copyright law comes into effect as soon as a literary work is created. However, it is a good idea to protect the copyright of the material by indicating the copyrights after the work is completed, so any accidental reuse can be avoided. Further, one can register the work at a copyright office for safety purposes. This is especially applicable to some huge literary works, or innovative work, or any other high-value work, such as novels, new research, a good story, and many more. If a work is registered at the copyright office, any claim of ownership or any claim against misuse of copyrighted material can be dealt with successfully.
There are several copyright registration options available, online registration and in paper registration to name a few, and these cost less than $100 in registration fees.
Legal Recourse
If one finds that a particular work has been stolen and reproduced elsewhere, one can file a copyright infringement claim. However, the onus is on the claimant to prove that the material was originally created by him or her and prove that it had copyrights before the other party reproduced the work. If the material is registered at the copyrights office, it is easier to win the claim; however, if it is not registered, one would need an expert attorney to represent one's case.
If one is beginning any important literary or artistic work, which is high value, and if one believes that losing the work can cost a lot financially, one can hire a copyright attorney, who will ensure that the material is protected from the beginning and adequate safeguard measures are taken to prevent any accidental or intentional infringement.
Any printed material immediately comes under the purview of copyright law. However, the value of the printed matter differs from something nominal to high value. Thus, the impact of copyright infringement also varies based on the value and type of material. It is always a good practice to immediately register any printed material with a copyright office to avoid legal hassles and financial loss that may occur in the future.
Plagiarism sleuths tackle full-text biomedical articles
In scientific publishing, how much reuse of text is too much? Researchers at the Virginia Bioinformatics Institute at Virginia Tech and collaborators have shown that a computer-based text-searching tool is capable of unearthing questionable publication practices from thousands of full-text papers in the biomedical literature.
The first step in the process is to find out what is restated before zeroing in on who may have crossed an ethically unacceptable threshold. The findings, published in PLoS ONE, offer hope for curbing unethical scientific publication practice, a growing problem throughout the world.
"Building upon our earlier work reported in Science and Nature, which uncovered ethically questionable journal articles by comparing their abstracts, we have now re-tuned our computer program, eTBLAST, to scan thousands of full-text articles in PubMed Central, a freely available repository of full-text biomedical literature," said Harold "Skip" Garner, author on the paper and executive director of the Virginia Bioinformatics Institute. "Our goal was to measure how much and where in papers - for example, the introduction, methods or results sections - text is duplicated to establish the 'norm' in publishing. This will allow ethicists, which we are not, to begin to develop guidelines as to what is and what is not acceptable publication practice."
Although abstract search is an effective approach to detect potential plagiarism, full text analysis is needed to uncover all potential duplicate citations in the scientific literature. The researchers examined 72 011 full-text articles using the eTBLAST computer program, which is only the tip of the iceberg for the number of published biomedical articles in the archives.
"We found that most papers are novel, as expected in scientific reporting, but even in papers reporting novel results, certain sections, such as the introduction or methods section, frequently have large amounts of content that appear elsewhere," said Garner. The researchers went on to explain that the re-use of text in certain sections, such as the methods section of papers, where authors provide details on how the work was done, is not a bad thing because it is important to use the accepted and most consistent techniques. "We also expect that other sections like the results section to be very unique just like the abstract. And this is the case in the overwhelming majority of papers," said Garner.
The current study revealed that the introduction section tended to be copied the most in similar citations. Also review articles were confirmed as being particularly prone to repetition.
"We believe this type of research will help us write better, more informative scientific papers, and prepare reviewers and journal editors for interpreting the similarity results that are emerging from the computational analysis of scientific papers. This approach is becoming increasingly commonplace as part of the scientific review process," added Garner. "Before crossing the line between acceptable and unacceptable writing, it is important to know the location of the line," concluded Garner.
The first step in the process is to find out what is restated before zeroing in on who may have crossed an ethically unacceptable threshold. The findings, published in PLoS ONE, offer hope for curbing unethical scientific publication practice, a growing problem throughout the world.
"Building upon our earlier work reported in Science and Nature, which uncovered ethically questionable journal articles by comparing their abstracts, we have now re-tuned our computer program, eTBLAST, to scan thousands of full-text articles in PubMed Central, a freely available repository of full-text biomedical literature," said Harold "Skip" Garner, author on the paper and executive director of the Virginia Bioinformatics Institute. "Our goal was to measure how much and where in papers - for example, the introduction, methods or results sections - text is duplicated to establish the 'norm' in publishing. This will allow ethicists, which we are not, to begin to develop guidelines as to what is and what is not acceptable publication practice."
Although abstract search is an effective approach to detect potential plagiarism, full text analysis is needed to uncover all potential duplicate citations in the scientific literature. The researchers examined 72 011 full-text articles using the eTBLAST computer program, which is only the tip of the iceberg for the number of published biomedical articles in the archives.
"We found that most papers are novel, as expected in scientific reporting, but even in papers reporting novel results, certain sections, such as the introduction or methods section, frequently have large amounts of content that appear elsewhere," said Garner. The researchers went on to explain that the re-use of text in certain sections, such as the methods section of papers, where authors provide details on how the work was done, is not a bad thing because it is important to use the accepted and most consistent techniques. "We also expect that other sections like the results section to be very unique just like the abstract. And this is the case in the overwhelming majority of papers," said Garner.
The current study revealed that the introduction section tended to be copied the most in similar citations. Also review articles were confirmed as being particularly prone to repetition.
"We believe this type of research will help us write better, more informative scientific papers, and prepare reviewers and journal editors for interpreting the similarity results that are emerging from the computational analysis of scientific papers. This approach is becoming increasingly commonplace as part of the scientific review process," added Garner. "Before crossing the line between acceptable and unacceptable writing, it is important to know the location of the line," concluded Garner.
Sunday, October 17, 2010
Do You Own Your Intellectual Property - Copyright by Maria Anassutzi
Employees:
It is important first of all to ascertain whether the author is an employee as opposed to a consultant or freelance. In this regard, two questions must be clearly answered:
Having established that, the creator is an employee, in order to benefit from the statutory ownership provisions, the employer must show that, the work was created "in course of [the employee's] employment".
So, careful consideration must be given how this is defined in the contract of employment, including part-time, working from home etc.
Consultants:
As with all non-employees, consultants will, by default, own the copyright in the works they create during the consultancy. This applies even if they have been expressly commissioned to do the work.
So, for example, freelance photographers, portrait artists and consultant computer programmers will all be the first owners of their works, in preference to the person paying for their services. If this is not desired, then an assignment of the copyright must be put in place and, in event, the terms and scope of any licence should be clearly defined. As an assignment of future works, the best place to deal with it, is in the letter or terms of engagement.
Maria is founder and director of Anassutzi & Co limited a specialist legal and business strategy consultancy having previously held a number of senior positions including being partner and head of IP/IT in London. Maria speaks fluently Greek, Italian and has basic knowledge of the French language.
Maria is a seasoned multi-jurisdictional lawyer with vast experience in general corporate commercial law, specialising in intellectual property, information technology, e-commerce and outsourcing and having extensive in-house legal experience and having worked in City law firms and multinational companies.
- Is the author in fact an employee? And
- If so, was the work created in the course of employment?
- An employee is defined as someone employed under a contract of service. The courts will consider the contract as a whole, to see if it is strongly indicative of one form of relationship over another, taking into account factors such as:
- the degree of control being exercised,
- the provision of tools or equipment,
- entitlement to holidays,
- sick pay and
- the tax arrangements.
How to Copyright a Text, Song, Book, Screenplay, Manuscript Or Photos by Mat Grell
The intellectual property that may relate to getting your next song, book or screenplay protected:
Copyright
Each original work of authorship fixed in a tangible or electronic form, including text, graphics, and pictures can be the basis of one or more copyright applications. As a reminder, you should always include a notice on all web pages in the footer and all documents available on the website fixed on paper or in an electronic form, such as © 200_ Full Name/Company Name. ALL RIGHTS RESERVED.
Note if multiple authors or designers are contributing to the work and a single person or entity desires to own the collective work then the authors or designers must transfer their rights to the single person or entity via an assignment/work-made-for-hire agreement; otherwise, each contributor is owed a ratable share of the profits realized from use, license, or sale of the work.
Contracts
Ownership rights should be clearly defined in an Assignment /work-made-for-hire agreement or set forth as clauses in authorship service agreements requiring agreement on intellectual property ownership by all parties participating in creation of the work.
Please do not take any shortcuts or casually skip over and of these steps. Too often, a business idea or product really takes off in the marketplace and there are no contracts in place as to which parties are responsible for having controlling rights of the product. In turn, money comes in and the courts end up deciding who should get it. Do not let this happen to you!
© 2009, Mat Grell; all rights reserved, world-wide.
* This article, and/or the reading thereof, shall not be construed as offering, containing or receiving of legal advice, and shall not create any attorney-client relationship or privilege. If you are considering protecting your intellectual property, you should consult with a patent attorney.
Mat Grell, U.S. Patent Attorney
http://www.bgiplaw.com/
BG IP Law, LLC is an intellectual property law firm that serves clients nationwide including Patents, Trademarks, Copyrights, & Licensing.
Copyright
Each original work of authorship fixed in a tangible or electronic form, including text, graphics, and pictures can be the basis of one or more copyright applications. As a reminder, you should always include a notice on all web pages in the footer and all documents available on the website fixed on paper or in an electronic form, such as © 200_ Full Name/Company Name. ALL RIGHTS RESERVED.
Note if multiple authors or designers are contributing to the work and a single person or entity desires to own the collective work then the authors or designers must transfer their rights to the single person or entity via an assignment/work-made-for-hire agreement; otherwise, each contributor is owed a ratable share of the profits realized from use, license, or sale of the work.
Contracts
Ownership rights should be clearly defined in an Assignment /work-made-for-hire agreement or set forth as clauses in authorship service agreements requiring agreement on intellectual property ownership by all parties participating in creation of the work.
Please do not take any shortcuts or casually skip over and of these steps. Too often, a business idea or product really takes off in the marketplace and there are no contracts in place as to which parties are responsible for having controlling rights of the product. In turn, money comes in and the courts end up deciding who should get it. Do not let this happen to you!
© 2009, Mat Grell; all rights reserved, world-wide.
* This article, and/or the reading thereof, shall not be construed as offering, containing or receiving of legal advice, and shall not create any attorney-client relationship or privilege. If you are considering protecting your intellectual property, you should consult with a patent attorney.
Mat Grell, U.S. Patent Attorney
http://www.bgiplaw.com/
BG IP Law, LLC is an intellectual property law firm that serves clients nationwide including Patents, Trademarks, Copyrights, & Licensing.
Sunday, October 10, 2010
Beware of Copyright Infringement When Recording Sound Effects by Alan M McKinney
Copyright is a set of rights assigned to the owner/creator of a piece of original work. Those rights are assigned automatically upon creation of the work. For the sound recordist and designer, these rights are essential in order to give control over any sound recordings created and how they can be used. It's fair to say they are the lifeblood of our work.
Copyright must be respected and considered at all times when recording sound effects. It's easy to overlook possible copyright infringements when out in the busy world recording. We are bombarded with recorded sound on a daily basis and it has become an ingrained part of our lives. From advertising and television and radio programmes to toys and ringtones, copyright material is everywhere and it's very easy to accidentally capture sound under copyright in a sound effect recording. If you do, it renders that sound effect unusable with the possibility of serious legal action being taken against you.
So just how easy is it to accidentally capture copyright material in a sound effect recording? The short answer is very easy. On many occasions I have been in the studio editing down recordings I have just made and realised I captured a ringtone of a passing person's phone or music being played in a passing car. It may sound insignificant, but those ringtones or that music is under copyright and it's illegal to record or distribute copyrighted work without permission from the copyright owner.
I have compiled a list of just some of the copyrighted sounds we hear regularly and may accidentally capture when recording sound effects:
1. Music - music is everywhere: on the radio; television; stereo system; background music in shops; restaurants and bars; computer games; toys; gadgets; sporting events and more.
2. Ringtones - most modern cell phones have a range of recorded ringtones available and many are under copyright. Even that old sound of a 'Bell' telephone is probably a recording and under copyright.
3. Toys and Games - electronic toys and games often use short audio recordings. From an action figure's spoken catchphrase to the buzzer on a board game, they are probably under copyright.
4. Computer Games - It's almost a certainty that the audio in any computer game is under copyright, including amusement arcade games.
5. Software - All those interface beeps, button clicks, musical signatures etc. are all likely to be under copyright.
6. Recorded Announcements - These can be some of the easiest copyright infringements to make. Recorded announcements can be heard in: train stations; airports; bus/coach terminals; sporting events; trains; aircraft; busses; ferries; elevators; shops and many more places.
So remember to always consider what and where you are recording. Take time to listen to the surroundings of where you are going to record to establish the risk of recording copyrighted material. It won't only be a waste of your time if you do but can land you in serious legal trouble.
Alan McKinney is the founder and co-owner of http://www.soundscalpel.com/ a professional sound effect and production music library and professional sound designer with over 15 years experience.
Copyright must be respected and considered at all times when recording sound effects. It's easy to overlook possible copyright infringements when out in the busy world recording. We are bombarded with recorded sound on a daily basis and it has become an ingrained part of our lives. From advertising and television and radio programmes to toys and ringtones, copyright material is everywhere and it's very easy to accidentally capture sound under copyright in a sound effect recording. If you do, it renders that sound effect unusable with the possibility of serious legal action being taken against you.
So just how easy is it to accidentally capture copyright material in a sound effect recording? The short answer is very easy. On many occasions I have been in the studio editing down recordings I have just made and realised I captured a ringtone of a passing person's phone or music being played in a passing car. It may sound insignificant, but those ringtones or that music is under copyright and it's illegal to record or distribute copyrighted work without permission from the copyright owner.
I have compiled a list of just some of the copyrighted sounds we hear regularly and may accidentally capture when recording sound effects:
1. Music - music is everywhere: on the radio; television; stereo system; background music in shops; restaurants and bars; computer games; toys; gadgets; sporting events and more.
2. Ringtones - most modern cell phones have a range of recorded ringtones available and many are under copyright. Even that old sound of a 'Bell' telephone is probably a recording and under copyright.
3. Toys and Games - electronic toys and games often use short audio recordings. From an action figure's spoken catchphrase to the buzzer on a board game, they are probably under copyright.
4. Computer Games - It's almost a certainty that the audio in any computer game is under copyright, including amusement arcade games.
5. Software - All those interface beeps, button clicks, musical signatures etc. are all likely to be under copyright.
6. Recorded Announcements - These can be some of the easiest copyright infringements to make. Recorded announcements can be heard in: train stations; airports; bus/coach terminals; sporting events; trains; aircraft; busses; ferries; elevators; shops and many more places.
So remember to always consider what and where you are recording. Take time to listen to the surroundings of where you are going to record to establish the risk of recording copyrighted material. It won't only be a waste of your time if you do but can land you in serious legal trouble.
Alan McKinney is the founder and co-owner of http://www.soundscalpel.com/ a professional sound effect and production music library and professional sound designer with over 15 years experience.
Get Your Trademark With Search, Classes and Registration by Mukesh Singh Kumar
In every country now it seems to get some over strict rules for corporate sector. For developing countries like for India, China, Singapore and many more that involves in export and import are compulsory to follow all types of business rules and regulations. These countries comprise wide range of corporate sectors offer different types of products and services to the world market. In this all world leading companies usually hire the services of business law companies that facilitate all types paper work and other business legal solutions to these business houses at the international level. There are many business companies that offer all these types business law services to corporate sector of different level. Among the different services trademark search India, federal trademark search, company registrations, company formations, company names search, trademark monitor, paralegal trademark, copyright registration, PCT filling in India, patent trademark attorney, brand registration, logo registration, trademark infringement and many more. All these services involve huge paper work that should be submitted to particular law office scattered to the different sections of the globe and it is very easy for these business law companies to come over with these legal services that must be follow by different business houses world wide.
Among these services trademark registration is one of the most demanded and favorable legal services of the corporate sector. Trademark is a mark in the form of design, logo, attractive words or phase that represents a particular company in the world market. As per the rule one should not use / copied / misuse other's trademark previously registered by the trademark register office. There are many rules and procedures to be follow for trademark registration including describing a mark to the trademark registration application, when it was first used along with classification and describing the services or products on which the mark will be used. Apart from these trademark search plays an important role for business houses where these business law companies facilitates the complete search for trademark with its legal availability. As in many cases there are chances to get trademark which is not legally available.
Mainly during the time of trademark litigation, these business law firms played a vital role for the cheated company where they have to submit claim application and many other processes have to follow in order to get justice. Apart from these trademark watch and trademark classes are also offered by law firms under which the classification of trade mark has taken place. These classifications involve the types of services or products under which the trademark is to register. These legal firms assist you in selecting classification and deciding what type of products you have and under which classification your trademark is to be get registered. Besides these, there are many services that one should follow in order to get all types of benefits at the corporate level. It is recommended to follow as without following it is very difficult to run business smoothly across its boundaries in the long run.
"Get Your Trademark with Search, Classes and Registration" is a useful article for trademarkregistration. Get more useful information about trademark litigation, trademark watch, and trademark classes.
Among these services trademark registration is one of the most demanded and favorable legal services of the corporate sector. Trademark is a mark in the form of design, logo, attractive words or phase that represents a particular company in the world market. As per the rule one should not use / copied / misuse other's trademark previously registered by the trademark register office. There are many rules and procedures to be follow for trademark registration including describing a mark to the trademark registration application, when it was first used along with classification and describing the services or products on which the mark will be used. Apart from these trademark search plays an important role for business houses where these business law companies facilitates the complete search for trademark with its legal availability. As in many cases there are chances to get trademark which is not legally available.
Mainly during the time of trademark litigation, these business law firms played a vital role for the cheated company where they have to submit claim application and many other processes have to follow in order to get justice. Apart from these trademark watch and trademark classes are also offered by law firms under which the classification of trade mark has taken place. These classifications involve the types of services or products under which the trademark is to register. These legal firms assist you in selecting classification and deciding what type of products you have and under which classification your trademark is to be get registered. Besides these, there are many services that one should follow in order to get all types of benefits at the corporate level. It is recommended to follow as without following it is very difficult to run business smoothly across its boundaries in the long run.
"Get Your Trademark with Search, Classes and Registration" is a useful article for trademarkregistration. Get more useful information about trademark litigation, trademark watch, and trademark classes.
Sunday, October 3, 2010
How Generic-Trademark Lost Its Luggage! by Cheryl L. Hodgson, J.D.
The costly and belated attempt of Hotels.com to create a protectible trademark and brand from a generic domain name illustrates a point I have been ranting about to internet business owners for several years. A generic term will never be a trademark or brand for the product or service being sold. Before investing thousands of dollars in marketing and advertising solely under a generic or descriptive domain name, consider adopting and registering a term that can be a valuable brand. A strong trademark will distinguish your services and can be used to stake out your turf in the marketplace.
Early internet marketers and domain aggregators have spent the last 10 years creating misinformation and leaving many internet businesses with weak or no brand protection. Marketers in their quest to secure easy search rankings, as well as domain resellers seeking to drive up prices, failed to communicate this important message. Now it is not just my pet peeve, it is the law according to the U.S. Court of Appeals.
Despite spending huge amounts in legal fees to convince the court that HOTELS.COM could be a trademark, the efforts to retrieve its lost luggage failed. In re Hotels.com, L.P., 573 F.3d 1300 (Fed. Cir. 2009) affirmed that a generic word can NEVER be trademarked, at least not for the goods or services being sold under that name. The whole point of having trademarks is to identify source. By definition, a generic term cannot identify source. Do not be generic. Be unique. Get protected.
Hotels.com thought that by adding a dot-com to the generic word "hotels", they could get trademark protection. That is not the case. A word is still generic regardless if it has a dot-com or not. A dot-com merely shows internet commerce.
The only argument available to business owners who are wedded to a weak or generic term, is to throw money and legal fees into attempting to prove the term has "acquired distinctiveness" so that the public identifies the term with a particular business or source for goods and services. As was the case here, such efforts after the fact are an uphill battle not easily won. The company failed to persuade the board that its survey showing 76% of 277 consumers thought the domain name was a brand name was sufficient evidence. The board stated that "the survey design did not adequately reflect the difference between a brand name and a domain name."
So what does this mean now that it is not a trademark? It means that they cannot sue other companies who use the term "hotels.com" to trigger ads on Bing(TM), Google(TM) or other search engines. Try doing a search for "hotels.com" and see what comes up-the official website, plus Travelocity®, Priceline® and many more.
The TTAB cited other websites to demonstrate a competitive need for others to use "hotels" as part of their own domain names and trademarks.
Copyright 2008 Hodgson Law Group - Cheryl L. Hodgson, J.D.
For expert Branding advice visit: http://brandaideblog.com/. Visit us online: http://www.hodgson-law.com/.
BRANDAIDE: Driving Your Brand to Distinction
Early internet marketers and domain aggregators have spent the last 10 years creating misinformation and leaving many internet businesses with weak or no brand protection. Marketers in their quest to secure easy search rankings, as well as domain resellers seeking to drive up prices, failed to communicate this important message. Now it is not just my pet peeve, it is the law according to the U.S. Court of Appeals.
Despite spending huge amounts in legal fees to convince the court that HOTELS.COM could be a trademark, the efforts to retrieve its lost luggage failed. In re Hotels.com, L.P., 573 F.3d 1300 (Fed. Cir. 2009) affirmed that a generic word can NEVER be trademarked, at least not for the goods or services being sold under that name. The whole point of having trademarks is to identify source. By definition, a generic term cannot identify source. Do not be generic. Be unique. Get protected.
Hotels.com thought that by adding a dot-com to the generic word "hotels", they could get trademark protection. That is not the case. A word is still generic regardless if it has a dot-com or not. A dot-com merely shows internet commerce.
The only argument available to business owners who are wedded to a weak or generic term, is to throw money and legal fees into attempting to prove the term has "acquired distinctiveness" so that the public identifies the term with a particular business or source for goods and services. As was the case here, such efforts after the fact are an uphill battle not easily won. The company failed to persuade the board that its survey showing 76% of 277 consumers thought the domain name was a brand name was sufficient evidence. The board stated that "the survey design did not adequately reflect the difference between a brand name and a domain name."
So what does this mean now that it is not a trademark? It means that they cannot sue other companies who use the term "hotels.com" to trigger ads on Bing(TM), Google(TM) or other search engines. Try doing a search for "hotels.com" and see what comes up-the official website, plus Travelocity®, Priceline® and many more.
The TTAB cited other websites to demonstrate a competitive need for others to use "hotels" as part of their own domain names and trademarks.
Copyright 2008 Hodgson Law Group - Cheryl L. Hodgson, J.D.
For expert Branding advice visit: http://brandaideblog.com/. Visit us online: http://www.hodgson-law.com/.
BRANDAIDE: Driving Your Brand to Distinction
What Is the Most Important Requirement of a Trademark? by Wendy Moyer
Because a trademark has to be able to identify particular goods or services the most important requirement for a trademark is that it is distinctive. That is the only way that the trademark of one company can be distinguished from that of another company.
One of the most important reasons that trademarks need to be distinctive is that it will prevent potential customers from being tricked into purchasing a product from another company that they think was made by your company.
How Can You Make a Trademark Distinctive?
Trademarks can be made to be distinctive by having a unique or fantasy name, such as AACCCAA. Another way a trademark can become distinctive is if the trademark holder builds up recognition of the mark.
For example the word "Apple" is a very common word in the English language. However a computer and communications company was extremely successful promoting that name.
The Distinctiveness of a Trademark Can Vary Over Time
A trademark can become more or less distinctive as the years go by. If a trademark holder aggressively uses a trademark it can become more famous and subsequently may be identified more easily by the buying public.
However, if trademark holders becomes lax in their marketing and public relations efforts then the trademark may become a generic name that people use for every product in that category. You could probably think of a particular brand of tissues that this may have happened to.
Once a trademark is looked at as being a generic name by the public it can destroy all of the trademark rights that the holder of the trademark had earned. Therefore, it shouldn't be surprising to learn that the majority of trademark holders spend considerable time and money trying to stop people from using their trademarked name as a generic name.
Distinctiveness is Applicable to a Trademark as a Whole
The distinctiveness of a trademark is determined by its whole rather than its individual components. In other words, the words "heavenly" and "dreams" by themselves can be quite descriptive if they are used to describe a mattress. Alone they cannot be trademarked. But used together as "Heavenly Dreams" they may be able to be trademarked because they form an atypical juxtaposition which creates a certain amount of distinctiveness.
This does not mean that other companies could no longer use the words "heavenly" or "dreams" on their mattresses. But it would mean that if "Heavenly Dreams" is trademarked by another company they can't sell mattresses called "Heavenly Dreams."
Next, to find out more about how affordable trademarking a name can be go to => http://www.trademarks411.com/
One of the most important reasons that trademarks need to be distinctive is that it will prevent potential customers from being tricked into purchasing a product from another company that they think was made by your company.
How Can You Make a Trademark Distinctive?
Trademarks can be made to be distinctive by having a unique or fantasy name, such as AACCCAA. Another way a trademark can become distinctive is if the trademark holder builds up recognition of the mark.
For example the word "Apple" is a very common word in the English language. However a computer and communications company was extremely successful promoting that name.
The Distinctiveness of a Trademark Can Vary Over Time
A trademark can become more or less distinctive as the years go by. If a trademark holder aggressively uses a trademark it can become more famous and subsequently may be identified more easily by the buying public.
However, if trademark holders becomes lax in their marketing and public relations efforts then the trademark may become a generic name that people use for every product in that category. You could probably think of a particular brand of tissues that this may have happened to.
Once a trademark is looked at as being a generic name by the public it can destroy all of the trademark rights that the holder of the trademark had earned. Therefore, it shouldn't be surprising to learn that the majority of trademark holders spend considerable time and money trying to stop people from using their trademarked name as a generic name.
Distinctiveness is Applicable to a Trademark as a Whole
The distinctiveness of a trademark is determined by its whole rather than its individual components. In other words, the words "heavenly" and "dreams" by themselves can be quite descriptive if they are used to describe a mattress. Alone they cannot be trademarked. But used together as "Heavenly Dreams" they may be able to be trademarked because they form an atypical juxtaposition which creates a certain amount of distinctiveness.
This does not mean that other companies could no longer use the words "heavenly" or "dreams" on their mattresses. But it would mean that if "Heavenly Dreams" is trademarked by another company they can't sell mattresses called "Heavenly Dreams."
Next, to find out more about how affordable trademarking a name can be go to => http://www.trademarks411.com/
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