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Christopher R Kinkade

Christopher Kinkade’s Answers

157 total


  • I think someone is infringing on my trademark and intellectual property. What type of lawyer do I need and where do I find?

    I need help with trademark and patent law.

    Christopher’s Answer

    A trademark attorney. If any of your IP is patented, you should hire a patent litigator. There is a find an attorney feature on Avvo.

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  • Can an applicant (non-attorney) interview Examining Attorney for refusal of trademark for likelihood of refusal?

    I received a final office action of my mark for likelihood of confusion. Can I call the examining attorney to ask substantive questions? What kinds of questions can be asked over the phone?

    Christopher’s Answer

    Yes, you may call the examiner and discuss the basis of the refusal. The examiner may even give you feedback on whether he or she will find your arguments persuasive. But the examiner will not give you advice about how to respond. You should consider consulting with experiences trademark counsel. Good luck.

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  • Will a Provisonal Application be rejected if the USPTO find a similar patent?

    Or will it still go through, issuing you Patent Pending Status?

    Christopher’s Answer

    The USPTO will not perform a search or otherwise examine a provisional application. It will remain pending for one year. You may claim patent pending status during that time. After that it will expire. To claim the benefit of the provisional, you need to file a non-provisional within that year.

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  • What should we do if we have already breached non compete agreement?

    I have signed non compete with employer ABC . through some vendor they place me on client XYZ, after working more than 3 years for same client I have taken full time with client XYZ without telling my previous employer ABC, now I am worried. what ...

    Christopher’s Answer

    This will turn on the particulars of your employment agreement and non-compete with ABC and whether XYZ is within the scope and whether the terms are reasonable. You should consult with an employment law attorney. If you leave XYZ and join NEWCO that does not compete with ABC, you should be okay. But you should consult with an attorney before making a drastic move. Even if it is a valid non-compete that restricts your employment with XYZ, you may be able to limit your duties in a way that that does not encroach upon the non-compete. Good luck.

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  • Do I need to get copyright permission?

    Bought a movie poster in the store w/ plans to cover up the title and use the image (which shows a person's mouth open in a scream, no eyes shown) to get attention at a festival to our dental booth. Will only use poster one day and only at this ...

    Christopher’s Answer

    Yes. That would be publication and/or creation of a derivative of someone else's presumably copyright-protected image. Consider obtaining a similar type of image from another source. There are databases of free or pay-for-license images and photographs. Even though you will not make money at this event, it is presumably a promotion for your business, which is a commercial purpose.

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  • Pending Motion for Summary Judgment at the Trademark Trial and Appeal Board Cancellation proceeding

    When the potentially dispositive motion is pending waiting to be ruled on for several months at TTAB, can a party file a new action in Federal court regarding the same Lanahm Act issues plus damages?Thanks

    Christopher’s Answer

    This is a complicated matter and I strongly encourage you to retain an attorney to help you. Generally speaking, yes there can be both a district court action and a TTAB proceeding at the same time. The Board usually will suspend the TTAB proceeding pending resolution of the district court action, since the district court's decision is binding on the Board. But if you are at the summary judgment stage this might not happen. It is a fact-specific issue. If it is your trademark that is being threatened with cancellation and you value your brand, you should retain counsel immediately.

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  • How do I get a provisional patent for my invention?

    I am at the point of signing a contract to a marketing firm who will help me promote my idea and I want to know about a provisional vs non-provisional patent to protect my invention.

    Christopher’s Answer

    There is no such thing as a provisional patent. A provisional patent application will not mature into a patent and merely provides an earlier effective filing date for a later non-provisional application filed within a year and directed to the same invention. While it is certainly preferable to file an application before you disclose your invention to anyone, you should at least have a nondisclosure agreement in place. Patent counsel can help you with this. You need to be wary of companies meeting with you then stealing your invention and later claiming they were already developing something similar. Such companies know that the average individual inventor does not have the means to litigate. If you have filed a patent application, then the company knows it may be at risk. The cost of filing a patent application and doing it right is much less than trying to reclaim your rights later.

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  • Need some details for creating a disclaimer on a digital ad using competitors trademarked names

    We're putting together a landing page for a PPC campaign and we're bidding on our competitors names (although not using their name in the ad or the landing page) To be proactive and go an extra step, I'd like to put together a disclaimer to sp...

    Christopher’s Answer

    Keyword trademark infringement laws are actively evolving and vary by jurisdiction. I happened to be on the winning side in district court in California a few years ago only to have the Ninth Circuit Court of Appeals decide to re-write the standard for such advertising. The majority view is now what you describe--so long as the trademark does not appear in the ad title or text, you are likely okay. But I do not know the prevailing rule in MA, so you should confer with an attorney who knows it or can research the issue for you.

    Adding a disclaimer could help alleviate any confusion and thus also serve as part of a defense of a claim of infringement. It is considered a nominative fair use to refer to companies by their names so you can do so in your proposed disclaimer.

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  • Is writing paid in full on the memo line of a check legally binding in the states of NY and NJ if the payee cashes it?

    for medical payment

    Christopher’s Answer

    NJ recognizes accord and satisfaction. As stated by a prior responder, there needs to be a legitimate dispute about the debt. The check also needs to be conspicuously marked as payment in full, and the creditor has a limited time (I believe either 60 or 90 days, you need to check) to return the partial payment after cashing.

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  • If i'm not selling it can I use sample music on my mixed tape without getting sued?

    I have a production company and the artists' want to use sample music on their mixed cd. can we be sued?

    Christopher’s Answer

    If you produce an album with sampled music without permission you would likely be named as one of the defendants and could have liability. You should have your clients sign agreements that they covenant they own rights to all their music and indemnify you for any claims of infringement. This will not keep your production company from being named as a defendant, but it will put the defense costs on the musician.

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