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Brett Evan Lewis

Brett Lewis’s Answers

6 total

  • What are my rights in a trademark cancellation case with regards to discovery; Calling all noble trademark attorneys.

    Yes , I am practicing pro SE . To anyone reading this , I can say it has been very difficult and draining my ability to focus on the business . I already had two oral depositions . The day discovery ended they opposing side sent a mountain of...

    Brett’s Answer

    Request a 30-day extension. These are granted as a matter of professional courtesy.

    Then spend a few days thinking about whether your trademark is important to your business, and what value you ascribe to it. What would you do if your trademark was cancelled? What if you had to rebrand and change your trademark?

    You are at an enormous disadvantage going this on your own. If the stakes are low, you can decide to continue to try to do this on your own. Just be prepared to struggle through the process. It's also impossible to say if you have the law and the facts on your side -- you could be wasting your time defending this or flushing away the opportunity to make a strong defense.

    If you cannot afford to pay a trademark attorney, there might be law school clinical programs that might help you. I hope this helps.

    Brett

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  • So I hand registered a domain name 2 years ago... someone emails me last month, asking me the purchase price of my domain name.

    So I hand registered a domain name 2 years ago . . . someone emails me last month , asking me the purchase price of my domain name . I tell him the price , and 2 days later this person emails me back and says that it's a reasonable price but...

    Brett’s Answer

    Hi, I would actually recommend speaking to a domain name attorney and not a trademark attorney. I'm not going to make many friends here by saying this, but there's a world of difference between the two.

    As to what the individual is up to, I can only speculate. I have seen situations where someone comes along and registers a trademark and then tries to use that to reverse hijack a domain name that was registered prior to the date of the trademark filing. It could also be that he was making common law use of the trademark prior to contacting you or even prior to your registration of the domain name. That would give rise to a potentially different fact pattern. It could also be that the individual is just trying to secure trademark rights in the term, regardless of whether he ultimately decides to purchase your domain name. Domain name rights and trademark rights are two different things. If you registered your domain name first -- before trademark use was made of the term by the other party -- that gives you superior rights to the domain name. If the other party made common law use of the trademark in commerce in connection with goods or services before you registered the domain name, however, the question then becomes: (1) did you register the domain name with a bad faith intent to profit off of the trademark, or (2) are you using or monetizing the domain name in a way that could infringe upon the other party's trademark rights? It becomes a matter of proving what your intent was, if it becomes a legal issue, and there are a whole bunch of factors that UDRP panelists and courts consider. Even if you registered the domain name first, if the other party makes a particular trademark use of the term first, they will acquire rights to that trademark for that particular use. Of course, this is an oversimplification, but hopefully you get the idea. If this becomes an issue, or even if you just want more information, you should contact a domain name attorney. Good luck!

    Brett

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  • If you take a screen shot of someone on a video chat who is naked , is it illegal to publish the photo on a website

    the person taking the screen shot is messaged by a person , that person is nude . . . a screen shot is taken

    Brett’s Answer

    Very likely so. It may depend on which state you're in, or which state the other person is in, which state's laws apply, and what that state's invasion of privacy laws are. Just because a person consents to be seen in a naked video chat does not mean that that person also consents to have an image of their naked person broadcast on the Internet. Is there a reason why you want to post this specific screen shot on a Web site, or did someone do this to you? Oh, and then there are child pornography laws -- if the person in the photo was under 18, you could be facing some much more serious consequences and criminality. If you are intent on publishing the screen shot, you really should consult with an attorney.

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  • Infringement of Copyright on common used words on the INTERNET

    Company A has URL of " Books USA . com " Company B has URL of Cheap book . com so both URL are completely different . Issue is when you go to Company B website it says Welcome to " Cheap Books USA " - meaning that they are selling cheap bo...

    Brett’s Answer

    There's not a lot to add to what's already been said, but I'm not going to allow that to deter me.

    My first question is is there an actual dispute, or is this purely hypothetical? If there is an actual dispute, you need to state what the two names are. I don't advise that you do that in a public forum, but in order to render any kind of legal advice on a question of this nature, the facts that you are providing cannot be hypothetical.

    On a general level, descriptive marks can and very commonly do function as trademarks. Once a descriptive mark acquires distinctiveness, it can be registered on the Principal Register and grant its owner all of the rights afforded to the owner of a federally-registered mark. The question then becomes whether adding words in front of a registered mark, like the word "cheap," would be sufficient to differentiate the two marks, such that consumers would not likely be confused as to the source, sponsorship or affiliation of the mark. This type of inquiry can never be answered in a vacuum. It's difficult enough to evaluate a potential infringement claim without discovery. A hypothetical? As they say in Brooklyn, Fugghedaboudit.

    Disclaimer: No one in my part of Brooklyn actually says that.

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  • Do I need to register my Phone Pp as a company , or trademark it ?

    hi , I would like to create an Phone application , and thought maybe you could help : - we are based in France at the moment , but the market would be more American . Do we need to register it as a company , or this is not necessary ? And ...

    Brett’s Answer

    Hi Max,

    The only thing that I would weigh in on is the trademark. It's more than just a matter of filing an application. Before you ever adopt a name, you should have a clearance search done, ideally with a full clearance search report and clearance letter. At a minimum, you would want to have a basic clearance done to make sure you're not infringing on someone else's trademark.

    Good luck!
    Brett

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  • How do I protect sub-contractor's privacy during a trademark cancellation proceeding?

    My boss's trademark is being questioned . He did an intent to use application and another party filed a cancellation based on him lacking a bona fide intent . Evidence I could provide are the conversations with developers prior to filing the app...

    Brett’s Answer

    An affidavit is ok, but it's not quite the same as an affidavit backed up by documentary evidence. Is there other documentary evidence that you could use? Are there internal company emails discussing plans to use the trademark? Is there a business plan? If all you've got are the vendor emails, I would be inclined to redact out the obscenities -- they're completely irrelevant -- and submit redacted copies. Good luck.

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