The United States government provides us with the opportunity to protect our products and creative ideas with copyrights and trademarks. When you come up with an creative idea for a symbol or mark, you should consider getting a copyright for it so that you can benefit from your creativity. However, when you apply for a trademark, you should realize that there are different prerequisites that your mark must fulfill in order to get a trademark.
First, a symbol must have a certain degree of creativity before you can apply for legal protection for it. A generic description like "car" or "cereal" is a something that we use to identify an object, not just identify a particular brand of object. For example, "Apple" would not be a satisfactory trademark for a apple fruit producing company. However, when applied to computers, "Apple" is a creative way to label a business that produces computers, not fruit. Sometimes, though, a term can lose its creativity as a term becomes more commonplace, and can possibly lose its trademark.
Next, to determine if a symbol deserves a trademark, copyright courts place it into four categories: arbitrary, suggestive, descriptive, and generic. These are in the general order of creativity, with arbitrary marks being the most distinctive. As mentioned above, generic marks hardly ever receive legal protection from trademark and copyright courts.
An arbitrary mark is often called a fanciful mark because it has absolutely no relation to the product with which it is associated. This can often be the most successful type of symbol since it can become engraved in consumer's mind that a "swoosh" mark somehow embodies Nike and all of its products. Because these marks are so distinctive, they are typically given more protection than others.
Next, a suggestive mark is not directly tied into a product or company, but it somehow associates itself with the business or item. For example, the North Face company creates backpacks and jackets and other such outdoor products, and their symbol is somewhat reminiscent of a mountain. While the North Face's products aren't just for mountain climbers, the symbol conveys an idea of ruggedness and warmth for the coats.
Descriptive marks are more linked to their companies or products. Because this can walk the line between generic and actually information, descriptive marks or slogans generally must fulfill a another characteristic, secondary meaning. This means that although a phrase might be able to describe a number of different products, this symbol or slogan has come to be specifically associated with a particular company in the minds of the consumers.
Obtaining a trademark for your company can be an important part of protecting your creativity and products. If you or someone you know needs help with the legal aspect of receiving a trademark or copyright, talk to the business lawyers at Skjold - Barthel [http://skjold-barthel.com/] today.
Sunday, August 15, 2010
Legal Issues Selling Or Using Stock Photos of Buildings Or Landmarks by Kathy Burns-Millyard
If you are trying to break into selling your photography as stock photos, or you're a small business who has recently discovered the joy of using low cost stock photography in your print or online publications, there are a variety of legal issues you need to know about. In this article we'll address a specific area of architecture: Buildings and Landmarks.
Not many people know this, but lots of new buildings are copyrighted or trademarked these days. Technically the buildings themselves may not be, but the designs of those buildings are. And if you try to sell stock photography which includes those buildings, you can be sued by the copyright or trademark holder.
The same applies to businesses who try to use those photos for their own advertising and marketing materials. Regardless of where you got the photo - or how much you paid for it - if the original stock photographer did not get a property release, then you are using the photos illegally, and this will usually get you wrapped up in a lawsuit with large amounts of money involved.
Trademarked building designs aren't the only things to worry about though. In almost any city or town across the world, you'll find a variety of statues, monuments, and other public artwork displays... and these are usually covered by copyright protection too. In some cases, statues and monuments are considered public domain because they're a government commissioned display. In other cases however, regardless of who commissioned the work, the original artist holds the copyrights.
Thankfully stock photo agencies do a great job of not allowing photos to be placed in their database if they may violate a copyright or trademark agreement. No one is perfect however, so some things slip in and get put up for licensing even when they shouldn't be. There are many websites around which have comprehensive lists of trademarked buildings and landmarks, and some of them also list those which might be problematic but no one is certain about.
Here's a few examples of common or popular architecture which could be covered by copyright and trademark laws:
- The Eiffel Tower: Only the nighttime light display is copyrighted. Daytime photos of The Eiffel Tower are still allowed to be sold and used for commercial photography purposes.
- The Sears Tower: Photos which feature this building cannot be sold for commercial purposes. In some cases a cityscape which happens to include the tower as a small part of the photo might be acceptable.
- Various Zoos, Theme Parks, and Aquariums: Entry tickets to many of these attraction explicitly state that no commercial photography is allowed.
See Kathy's excellent stock photography at http://www.electronicperceptions.com/
©2008, Kathy Burns-Millyard
Not many people know this, but lots of new buildings are copyrighted or trademarked these days. Technically the buildings themselves may not be, but the designs of those buildings are. And if you try to sell stock photography which includes those buildings, you can be sued by the copyright or trademark holder.
The same applies to businesses who try to use those photos for their own advertising and marketing materials. Regardless of where you got the photo - or how much you paid for it - if the original stock photographer did not get a property release, then you are using the photos illegally, and this will usually get you wrapped up in a lawsuit with large amounts of money involved.
Trademarked building designs aren't the only things to worry about though. In almost any city or town across the world, you'll find a variety of statues, monuments, and other public artwork displays... and these are usually covered by copyright protection too. In some cases, statues and monuments are considered public domain because they're a government commissioned display. In other cases however, regardless of who commissioned the work, the original artist holds the copyrights.
Thankfully stock photo agencies do a great job of not allowing photos to be placed in their database if they may violate a copyright or trademark agreement. No one is perfect however, so some things slip in and get put up for licensing even when they shouldn't be. There are many websites around which have comprehensive lists of trademarked buildings and landmarks, and some of them also list those which might be problematic but no one is certain about.
Here's a few examples of common or popular architecture which could be covered by copyright and trademark laws:
- The Eiffel Tower: Only the nighttime light display is copyrighted. Daytime photos of The Eiffel Tower are still allowed to be sold and used for commercial photography purposes.
- The Sears Tower: Photos which feature this building cannot be sold for commercial purposes. In some cases a cityscape which happens to include the tower as a small part of the photo might be acceptable.
- Various Zoos, Theme Parks, and Aquariums: Entry tickets to many of these attraction explicitly state that no commercial photography is allowed.
See Kathy's excellent stock photography at http://www.electronicperceptions.com/
©2008, Kathy Burns-Millyard
Sunday, August 8, 2010
Copyrights vs Trademarks by Shannon Moore
Copyrights can be obtained for things of an artistic nature. This includes, of course, poetry, films, sculptures, music, fiction, etc. But can also include things that may not necessarily seem "artistic" in the general sense of the word. Copyrights can also be obtained for advertising copy, games, software programs and blueprints, to name just a few.
There are five different types of copyright filings:
Literary Works - books, manuscripts, poetry, theses, speeches, etc.
Visual Art Works - drawings, photographs, sculptures, artwork applied to clothing, etc.
Performing Art Works - dramatic work, script, motion pictures, etc.
Sound Recordings - recordings of music, drama, lectures, etc.
Serials & Periodicals - newspapers, magazines, etc.
To protect a business name within your industry, you would apply for a trademark.
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.
This entails searching the pending & registered Federal and State trademark files as well as the US National Common-Law files. Then, if clear, you can decide if you would like to file for a Federal or a State trademark.
To register a trademark, that's done either through your Secretary of State for a State trademark or the US Patent & Trademark Office for a Federal trademark.
If you are only conducting business in one state, then a State trademark is most appropriate. If you conduct (OR are planning to conduct) business in at least 2 states OR between the US & any other country, you can file for a Federal trademark.
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.
There are five different types of copyright filings:
Literary Works - books, manuscripts, poetry, theses, speeches, etc.
Visual Art Works - drawings, photographs, sculptures, artwork applied to clothing, etc.
Performing Art Works - dramatic work, script, motion pictures, etc.
Sound Recordings - recordings of music, drama, lectures, etc.
Serials & Periodicals - newspapers, magazines, etc.
To protect a business name within your industry, you would apply for a trademark.
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.
This entails searching the pending & registered Federal and State trademark files as well as the US National Common-Law files. Then, if clear, you can decide if you would like to file for a Federal or a State trademark.
To register a trademark, that's done either through your Secretary of State for a State trademark or the US Patent & Trademark Office for a Federal trademark.
If you are only conducting business in one state, then a State trademark is most appropriate. If you conduct (OR are planning to conduct) business in at least 2 states OR between the US & any other country, you can file for a Federal trademark.
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.
Does Your Domain Name Need To Be Registered As a Trademark? by Cheryl L. Hodgson, J.D.
Once you register a domain name, others cannot use it as their web address. A domain is a lot like a street address or location on the Internet. However, this does not automatically mean you can register it as a trademark protected by the federal government for your products and services. Whether it can also function as a legally protectible brand that adds value to your business depends on what you choose, so choose wisely.
The answer often depends upon whether you have chosen to market your products or services under a generic or highly descriptive domain. Generic and descriptive terms are not normally protectible as a trademark. A great example is hotels.com which spent a fortune in 2007-2008 trying to convince the Trademark Trial and Appeal Board and Federal Circuit that it has acquired "secondary meaning" in the domain. They failed because no matter how much they promote or market the term, it will still be generic for what the consumer finds at the site.
On the other hand, valuable brands on the Internet are not generic and descriptive. A domain such as EXPEDIA.COM® is registered and protected as a strong trademark because the owner actually provides services through the website. EXPEDIA may suggest but does not describe what is being offered at the site. Google, eBay, and Amazon are all domains turned famous trademarks because their owners not only registered the term as a domain, but chose a term that could also be distinctive for trademark purposes.
If you are going to invest money into creating and promoting a website, you should adequately protect the domain name as a trademark. It is insufficient to simply secure a domain name registration and in some cases can be fatal. One of my clients was sued by Amazon over his use of amazonnetworks.com for computer services. He innocently registered the domain and put up his site with a picture of the Amazon River. At about the same time, Amazon.com established its site and was selling only books. Because he failed to "stake out his claim" to the term for computer services by securing a federal trademark, Amazon turned into a trademark bully and sued him 10 years later. He was forced to sell for a fraction of what it was worth, as he could not afford to fight the lawsuit.
Once you have a term in a domain that qualifies as a trademark, the key requirement is that you offer goods and services for sale, not merely provide an "informational" site.
An informational site describes you and what you do or sell, but does not actually deliver services or products online. For example, an attorney was refused registration of http://www.eilberg.com/ because the site merely showcased his services.
If you provide services online through your site, the Trademark Office will grant registration. For example, the ability to sign up for courses or workshops online is a service.
Other examples of registerable websites include online banking services, online chat rooms, online retail services, real estate marketing services with virtual tours, and hosting web sites of others.
It is up to you to decide. I believe if one is going to spend the money to market and promote goods and services online, it is wise to have a term that can be protected as a trademark as well as a domain. Whatever you decide, choose based upon an understanding of the difference between the two.
http://hodgson-law.com/
http://brandaideblog.com/
The answer often depends upon whether you have chosen to market your products or services under a generic or highly descriptive domain. Generic and descriptive terms are not normally protectible as a trademark. A great example is hotels.com which spent a fortune in 2007-2008 trying to convince the Trademark Trial and Appeal Board and Federal Circuit that it has acquired "secondary meaning" in the domain. They failed because no matter how much they promote or market the term, it will still be generic for what the consumer finds at the site.
On the other hand, valuable brands on the Internet are not generic and descriptive. A domain such as EXPEDIA.COM® is registered and protected as a strong trademark because the owner actually provides services through the website. EXPEDIA may suggest but does not describe what is being offered at the site. Google, eBay, and Amazon are all domains turned famous trademarks because their owners not only registered the term as a domain, but chose a term that could also be distinctive for trademark purposes.
If you are going to invest money into creating and promoting a website, you should adequately protect the domain name as a trademark. It is insufficient to simply secure a domain name registration and in some cases can be fatal. One of my clients was sued by Amazon over his use of amazonnetworks.com for computer services. He innocently registered the domain and put up his site with a picture of the Amazon River. At about the same time, Amazon.com established its site and was selling only books. Because he failed to "stake out his claim" to the term for computer services by securing a federal trademark, Amazon turned into a trademark bully and sued him 10 years later. He was forced to sell for a fraction of what it was worth, as he could not afford to fight the lawsuit.
Once you have a term in a domain that qualifies as a trademark, the key requirement is that you offer goods and services for sale, not merely provide an "informational" site.
An informational site describes you and what you do or sell, but does not actually deliver services or products online. For example, an attorney was refused registration of http://www.eilberg.com/ because the site merely showcased his services.
If you provide services online through your site, the Trademark Office will grant registration. For example, the ability to sign up for courses or workshops online is a service.
Other examples of registerable websites include online banking services, online chat rooms, online retail services, real estate marketing services with virtual tours, and hosting web sites of others.
It is up to you to decide. I believe if one is going to spend the money to market and promote goods and services online, it is wise to have a term that can be protected as a trademark as well as a domain. Whatever you decide, choose based upon an understanding of the difference between the two.
http://hodgson-law.com/
http://brandaideblog.com/
Sunday, August 1, 2010
Things to Consider Before Registering a Trademark Symbol by Lenny Parker
Symbol or logo for company is the best method to show your company identity. There is little consideration when you want to register your symbol or logo for company.
Registering a trademark or company logos requires design search which can be performed by trademark attorney or lawyer.
A trademark lawyer should review this design search to ensure that your trademark logo is original. Your design logo should not infringe upon other trademark logos. Your trademark attorney can tell you on whether it is safe to start proceed registering the company name as a trademark or not.
Do not forget to codify all licenses in writing. Your trademark attorney or lawyer will help you. This means you should put the terms and conditions of the license in writing not only for logo but also your name, copyrighted works, and other intellectual property.
This step is important when your association lets others like members chapters, affiliated entities, or endorsed vendors use your logo. You should make a valid assignment as must an exclusive license or permission to use.
You may want to limited license for a specific use. More copyright problems arise when others claim to have appropriate permission to use all intellectual property including your logo. You may learn that a separate fee and permission is required in your logo license.
Since the trademark symbol and other contact information contained in your membership directory, mailing labels, and membership list are generally are not protected by copyright, it is essential for you to use license or other form of contractual commitment to define explicit, binding limits and conditions on the use of your logo by members, vendors and others.
Free trademark symbol or logo may be available on the Internet. But almost all free trademark logos will not reflect the unique aspects of your company.
Learn more how to register trademark and free trademark symbol in trademark opposition.
Registering a trademark or company logos requires design search which can be performed by trademark attorney or lawyer.
A trademark lawyer should review this design search to ensure that your trademark logo is original. Your design logo should not infringe upon other trademark logos. Your trademark attorney can tell you on whether it is safe to start proceed registering the company name as a trademark or not.
Do not forget to codify all licenses in writing. Your trademark attorney or lawyer will help you. This means you should put the terms and conditions of the license in writing not only for logo but also your name, copyrighted works, and other intellectual property.
This step is important when your association lets others like members chapters, affiliated entities, or endorsed vendors use your logo. You should make a valid assignment as must an exclusive license or permission to use.
You may want to limited license for a specific use. More copyright problems arise when others claim to have appropriate permission to use all intellectual property including your logo. You may learn that a separate fee and permission is required in your logo license.
Since the trademark symbol and other contact information contained in your membership directory, mailing labels, and membership list are generally are not protected by copyright, it is essential for you to use license or other form of contractual commitment to define explicit, binding limits and conditions on the use of your logo by members, vendors and others.
Free trademark symbol or logo may be available on the Internet. But almost all free trademark logos will not reflect the unique aspects of your company.
Learn more how to register trademark and free trademark symbol in trademark opposition.
Tips to Protect Yourself Online
Almost all consumer products have a warning label; if only your email inbox had one too. Delivery notices from the post office, messages from friends, and headlines for local events all look innocent enough when they arrive in email form. However, these emails can contain malicious links with a virus, causing your computer to crash. But hackers aren't just using email anymore; they are tapping into websites and Social Media platforms. How can we protect ourselves online, and on our favorite social networking sites and not become a victim of cyber crime?
University of Phoenix instructor and IT expert Jim Dearman provides the following tips.
1. Be careful on what you share: Addresses, personal information, names of your spouse or children, using your full name, all make you vulnerable to identity theft. Although popular, website such as Myspace, Facebook, LinkedIn, and Twitter are all gold mines for hackers. Check your privacy settings, and use with caution.
2. Think before your click: If you get an email from one of your contacts that seems out of character or contains a link you do not recognize, don't click.
3. Choose a strong password: Do not use a word from the dictionary. Change it by adding capital letters or numbers, and choose a password at least 8 characters in length.
4. Keep your computer up-to-date: Make regular updates, have anti spyware, and keep your virus software up-to-date.
5. Check your Social Media sites: Make sure to check your privacy settings. Sharing with friends is one thing, allowing strangers access to your site and personal information is another.
6. Secure your wireless network: Do not leave your wireless network open. Secure your connection, because hackers can access your personal information, browse your files, or even worse take over your computer.
7. Don't accept random friend requests on social sites: while the goal is to network, hackers can create fake accounts in order to access your personal information.
University of Phoenix instructor and IT expert Jim Dearman provides the following tips.
1. Be careful on what you share: Addresses, personal information, names of your spouse or children, using your full name, all make you vulnerable to identity theft. Although popular, website such as Myspace, Facebook, LinkedIn, and Twitter are all gold mines for hackers. Check your privacy settings, and use with caution.
2. Think before your click: If you get an email from one of your contacts that seems out of character or contains a link you do not recognize, don't click.
3. Choose a strong password: Do not use a word from the dictionary. Change it by adding capital letters or numbers, and choose a password at least 8 characters in length.
4. Keep your computer up-to-date: Make regular updates, have anti spyware, and keep your virus software up-to-date.
5. Check your Social Media sites: Make sure to check your privacy settings. Sharing with friends is one thing, allowing strangers access to your site and personal information is another.
6. Secure your wireless network: Do not leave your wireless network open. Secure your connection, because hackers can access your personal information, browse your files, or even worse take over your computer.
7. Don't accept random friend requests on social sites: while the goal is to network, hackers can create fake accounts in order to access your personal information.
Sunday, July 25, 2010
How to Complete a Free Trademark Search by Joanne Young
Before registering a trademark, it's important to complete a trademark search. This will eliminate the risk that your trademark or brand is not already registered. When searching, it is important to consider marks that are similar to your mark as well as marks that are the same. Similar marks can have an impact on your trademark registration.
UK Trademark Search
The UK Intellectual Property Office hold online records of every trademark that they have registered. The search facility within this database which enables you to search under the following criteria:-
1. A word search
2. An image search
3. Word and Image
4. Word or Image
5. Reserved Marks
The word search can be broken down into further categories. You can search under:-
-contains word This will search all marks that contain the text that you enter (one word only)
-contains string This will search all marks that contain the text that you enter (more than one word)
-exact match This will search the exact text that you enter
-starts with This will search all marks that begin with the text that you enter
The image search is a little more complicated and contains thirty categories, then a further two option boxes of sub categories. You must first decide which category your image falls under, then categorise it further. It is also useful to use the classification part of the text if you are image searching, as this will help filter out any classes which may not be relevant to your registration.
From this search, you should be able to get a rough idea of whether your trade mark is already registered or whether or not you need to seek legal advice or support in searching or registering your mark. The UK IPO state that "this not been designed as a comprehensive trade mark search facility and should not be used to determine conclusively whether a conflicting trade mark already exists."
EU (Community) Trademark Search
The EU Trademark search facility can be completed on the OHIM registry database online. CTM-ONLINE provides ready access to information on Community trade mark (CTM) applications and registrations including online access to CTM files.
You can find the UK Trademark Database here: http://www.ipo.gov.uk/tm/t-find/t-find-text.
You can find the OHIM Trademark Database here: http://oami.europa.eu/ows/rw/pages/QPLUS/databases/searchCTM.en.do.
For more information on this article, or to get a FREE no obligation UK/EU Trademark Search by a qualified Intellectual Property Lawyer or Free Legal Advice on Trademarks, contact http://www.trademarkdesignprotection.com/.
UK Trademark Search
The UK Intellectual Property Office hold online records of every trademark that they have registered. The search facility within this database which enables you to search under the following criteria:-
1. A word search
2. An image search
3. Word and Image
4. Word or Image
5. Reserved Marks
The word search can be broken down into further categories. You can search under:-
-contains word This will search all marks that contain the text that you enter (one word only)
-contains string This will search all marks that contain the text that you enter (more than one word)
-exact match This will search the exact text that you enter
-starts with This will search all marks that begin with the text that you enter
The image search is a little more complicated and contains thirty categories, then a further two option boxes of sub categories. You must first decide which category your image falls under, then categorise it further. It is also useful to use the classification part of the text if you are image searching, as this will help filter out any classes which may not be relevant to your registration.
From this search, you should be able to get a rough idea of whether your trade mark is already registered or whether or not you need to seek legal advice or support in searching or registering your mark. The UK IPO state that "this not been designed as a comprehensive trade mark search facility and should not be used to determine conclusively whether a conflicting trade mark already exists."
EU (Community) Trademark Search
The EU Trademark search facility can be completed on the OHIM registry database online. CTM-ONLINE provides ready access to information on Community trade mark (CTM) applications and registrations including online access to CTM files.
You can find the UK Trademark Database here: http://www.ipo.gov.uk/tm/t-find/t-find-text.
You can find the OHIM Trademark Database here: http://oami.europa.eu/ows/rw/pages/QPLUS/databases/searchCTM.en.do.
For more information on this article, or to get a FREE no obligation UK/EU Trademark Search by a qualified Intellectual Property Lawyer or Free Legal Advice on Trademarks, contact http://www.trademarkdesignprotection.com/.
Subscribe to:
Posts (Atom)