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Daniel Nathan Ballard

Daniel Ballard’s Answers

7,904 total

  • Can I copyright inherited (unpublished, personal) photos authored by late Aunt who bequeathed all of her personal photos to me?

    My brother has threatened to take legal action against my daughter for posting photos of our late parents and late brother. The "original" photos are hard copies and I gave my daughter permission to digitize these photos. She has all the original ...

    Daniel’s Answer

    If we assume that your aunt took the photographs [or, if authorship is unknown, that she likely took the photographs] then HER surviving spouse or, if deceased, her surviving children own the photographs' copyrights. Any ONE one of them can lawfully license when and where the photographs are displayed -- even if any other copyright co-owner disagrees.

    If she had no such heirs then you [and your brother and all other similarly-situated relatives] are all co-owners of those copyrights. And so any ONE of you can also license [e.g., to your daughter] the right to display those photographs wherever you want -- again, even over the objection of any o-owner and without any financial compensation to any other co-owner if the display generates no revenue.

    These are just general rules. Speak with your own Pennsylvania-licensed intellectual property attorney. And perhaps a family law attorney as well. Good luck.

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  • Can I commercial produce food from a (modified) recipe & say "adapted from" and give the name of the chef who wrote the recipe?

    Given that food recipes are cannot be copyrighted per se (“The identification of ingredients necessary for the preparation of each dish is a statement of facts.” and “[The] recipes’ directions for preparing the assorted dishes fall squarely within...

    Daniel’s Answer

    Your motivation to give credit to the original creator of the recipe is honorable but, ironically, legally unwise. As my colleague notes, that would very likely be an unlawful misappropriation of his "right of publicity." While you think you're simply giving him credit, from his perspective you're trading off his good name. That's unlawful -- even when only truthfully asserting [in the marketplace] that he's the chef who originally created the recipe for the product you're selling.

    Speak with your own California-licensed intellectual property attorney before you put your plan into actio. Good luck.

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  • Trademark infringement of product description

    One of my competitors has trademarked this phrase, eg. "Flavored Water". This is NOT used to describe their commercially available product, but in the suggested use, eg. "Add 1 oz of our powder to create Flavored Water(TM)" We want to use "Flavore...

    Daniel’s Answer

    I'm going to assume that when you used "e.g." to preface the phrase "Flavored Water" you really meant "for example" [exempli gratia]. Our answers to your questions, therefore, do not depend on that particular phrase.

    I take your question to mean that Company A sells a branded product that's then used by the consumer to make a different product -- which the company also wants to brand [e.g., "Flavored Water"]. That's a fine plan. And it'll work so long as the name of the consumer-created product is not "generic" [simply the common name of the product] or "merely descriptive" [words that simply describe the product or a key characteristic].

    The phrase "Flavored Water" if used to brand flavored water is generic and can never serve as a trademark. But that was just your example.

    Perhaps the real name of the consumer-created product is not generic. Ask your own California-licensed intellectual property attorney. And discuss whether that name can serve as a trademark to brand your product and, if so, whether your company can lawfully use it in light of all the other already-in-use trademarks in the marketplace [NOT just the one you located]. Good luck.

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  • New Corp or a DBA for a Tech startup.

    Hi, I have a S Corp registered in Texas for a IT consulting business. I am also in the process of starting a web based (App) services which will be offered in Texas first and then expanding in other states. IL,OK,MO etc My question is do I n...

    Daniel’s Answer

    One corporation may lawfully engage in more than one line of business. Your corporation, therefore, may engage in both "IT consulting" and the new "app based business."

    Properly branding each division of the corporation -- and each of the services each offers -- will be important for marketing purposes [which is why this is an intellectual property question]. Yes, you may file one or more assumed name certificates for your existing corporation. Perhaps one for each of your two lines of business. Your own Texas-licensed intellectual property attorney will have to assist you to select and then "clear the rights" to all those names and all other branding.

    Sometimes it makes sense for a corporation to create a new company to engage in a new line of business. Especially when there's a potential -- or a business goal -- to sell the new business once it's up and running. Having the new business under its own corporate umbrella can make that company a more attractive take-over target and make the purchase transaction more efficient. Good luck.

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  • What recourse is there for a trademark filing that was marked as “Abandoned”?

    The previous owner neglected to complete the paperwork necessary to file and is now part of newly formed corporation that would like like file under the same IC and (G&S) codes.

    Daniel’s Answer

    I think you mean Company A filed a trademark registration application but because it chose not to complete the process the application went abandoned. Company A is "now part of" Company B which wants to register the same trademark.

    Two potential choices: file a petition to “revive” the abandoned application or file a new application.

    Reviving an abandoned application is beneficial because, if successful, the application can be asserted against subsequent applicants who try to register the same or a confusingly similar mark to brand the same or related products or services. Whether Company B can “revive” the abandoned application depends on a number of facts, some of which are: (1) the filing status of the application [use based or intent to use], (2) the stage of the proceeding when it was abandoned, (3) how long ago it went abandoned, (4) whether it was intentional or unintentional, (5) whether it and/or mark itself was actually assigned to Company B in a signed writing and (6) whatever else your own trademark attorney thinks relevant. Only your own attorney can determine whether Company B can revive the application and, if so, whether that makes the most sense or whether a new application is the better route.

    If Company B cannot revive the application then it can file a new one – but only after your own attorney commissions a trademark clearance search and reviews its results to determine whether the mark, or one confusingly similar, is already being used to brand the same or related products that you want to brand with the mark. This process of “clearing the rights” to the mark is a necessary first step before using the mark in commerce and before applying to register the mark with the Trademark Office.

    Good luck.

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  • Out of statue immigrant has a image copy right usage

    Hello, I’m web designer, just got married with us citizen 1 year ago, i got my social and work permit 10 days ago, and waiting for my Green Card.Because i didn't have any money to live I created a website for a client and used images from google, ...

    Daniel’s Answer

    Getty Images will try to enforce its copyright in the infringed photographs against your client [the owner of the website] -- very likely not you. Getty could, however, try to enforce against you as well because you admit you were the one who copied the photographs without permission. In short, both you and your client are legally at fault: you for copying the photographs and him for displaying them on his website.

    What to do? Only your own Texas-licensed intellectual property attorney can help you with that. One option is to agree to pay half of the amount Getty wants from your client. There will be other options as well. Good luck.

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  • Can i create a site to let people see the comparison price rate with one same product kind?

    example: xxx laptop can be found at 16 different online stores with 16 different rates, and my website is one of the good place for users to come over and compare prices, and finally to decide where to buy. i will provide a link for them to click ...

    Daniel’s Answer

    There's already a crowded field of well-known and well-funded price comparison search engines. Some can be visited via the links below. So, yes, there is a lawful way to put your business plan into action -- but in light of the existing competition that's very likely a bad idea [and it's highly unlikely anyone will fund another start-up in this space]. Speak with your own New York-licensed intellectual property attorney. Good luck.

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  • Intellectual property question. I developed a way to that is more effective than others for fertility. Patent?

    Intellectual property question. Ok so basically, I have develop a way to monitor dates that a woman will most likely be fertile by tweaking a method that is currently used. My method does not require any device just simple math and a calendar. I ...

    Daniel’s Answer

    I have little hesitation concluding that a method of estimating the "dates that a woman will most likely be fertile" is not patentable subject matter. A method having an abstraction [a future date] as its end point falls outside what our patent laws protect.

    Even if such a method is patentable subject matter, it would almost certainly not be patentable in light of the last 100 years of publicly-disclosed, focused research on the matter and the many existing methods -- at least one of which is very accurate -- that have already been publicly disclosed. Especially when the method's creator readily admits he came up with the method by "tweaking a method that is currently used."

    What could be patentable, however, is a device, and the use of that device, to track a woman's menstrual cycle. Many have already been patented. A few of them can be read via the links below.

    Yes, you should still discuss this matter with your own patent attorney. Your method may have some wrinkle that's not obvious. Your attorney will also have to determine if there's provable science behind your method. A method of determining when a woman is "most fertile" can ONLY be an estimate and the method end point date[s] will vary woman by woman and cycle by cycle. In short, you can't claim an invention that gets ahead of the science behind it [by, for example, claiming the method end point date is THE day the woman is most fertile]. Good luck.

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  • Freelancer quit, should I trust him?

    I hired a student from a local college to develop a website for me. He signed an NDA and started working on preliminary sketches. Then, he quit. Now, he won't acknowledge any of my emails or texts. I just want him to acknowledge the NDA and that h...

    Daniel’s Answer

    Well, what does the attorney who wrote the non-disclosure agreement for you say about the matter? Didn't use one? Hmm.

    Let's assume that the non-disclosure agreement is enforceable and its scope sufficient to preclude the other person from lawfully disclosing your website "idea." Frankly, I think that assumption is very likely WRONG, but let's press ahead anyway.

    There's actually an interesting interplay here between state non-disclosure law and federal copyright law. The general rule is that federal law preempts state laws that are equivalent to the subject matter of the federal law. And federal copyright law says that the person who creates artistic works, such as a website design, owns the copyright in those works absent a written agreement transferring that copyright. You did not mention any such "assignment" agreement so I'm going to assume none exists. The non-disclosure agreement you do have -- the limitations of which must be commercially "reasonable -- may prevent the other person from disclosing the "idea" you shared but it may not prevent the website designer from displaying and distributing the sketches he created to embody that idea. His rights under federal copyright law cannot be [unreasonably] constrained by state non-competition law. The two bodies of law collide and any agreement under the latter that attempts to limit the disclosure of a mere "idea" must yield to the federal law promoting the creation and disclosure of artistic works.

    In short, I think you very likely have much, much less protection than you think you have. Speak with your own New Jersey-licensed intellectual property attorney.

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  • About copyright limitations in use of national and country flags in a design.

    I'm a graphic designer, among other things (programmer, webmaster, it manager etc.). I've designed a brand that has an abstract of the Puerto Rican flag. Could be seen also as the Cuban flag since their contours are exactly the same. Anyways, can ...

    Daniel’s Answer

    So far as including a flag in your logo is concerned, copyright law is irrelevant. A logo, even one including a flag, is copyrightable and that copyright can be registered so long as it's sufficiently creative.

    The law you need to be concerned about is the Lanham Act -- that is, our federal trademark law. Visit the link below for Trademark Office guidance on why registration will be refused for any logo trademark that "includes a true representation of the flag of the United States, any state, municipality, or foreign nation, or is a simulation thereof" [see Section 1204].

    Moreover, there are other laws in place that prohibit the use of any designs, including state flags and other state emblems, in logo trademarks when such use is likely to cause consumers to falsely believe the state is somehow associated with the branded product or service or whoever is selling that product or service.

    So ... not only is likely unlawful to include the Puerto Rico flag in a logo trademark, you cannot register that logo with the federal Trademark Office either. You need to speak with your own Puerto Rico-registered intellectual property attorney. Good luck.

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