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Daniel Nathan Ballard

Daniel Ballard’s Answers

7,319 total


  • If one were to purchase assistance from an online legal company such as ABCzoom for the filing of a provisional application...

    ...what guarantee(s) does one receive that the information provided will not be usurped?

    Daniel’s Answer

    Someone taking and commercially exploiting the information you provide is the least of your worries. But, yes, it can happen -- especially because ABCzoom is merely filing the application and is not acting as your attorney. Your attorney has fiduciary, ethical and legal obligations to maintain the information you provide in confidence. The filing company you use has no such obligations. At best, it may promise by contract to keep that information in confidence.

    Your larger worry, however, is fundamental: How do you know you need or even qualify for a patent? Even assuming both are true, do you think you can properly draft provisional patent application?

    You need to speak with a Georgia-licensed intellectual property attorney about your business plans. It's quite likely you have some of the fundamentals wrong. Good luck.

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  • Copyright vs patent?

    I have this app idea and I want to protect the idea as well as the app and myself. The software developer mentioned that it may just be a copyright instead of a patent, to copyright the coding, which would be way quicker, easier and cheaper! I a...

    Daniel’s Answer

    In addition to the good suggestions already provided by Attorney David, you and your own intellectual property attorney must draft a contract between yourself and the programmer who will actually be creating the application. In addition, because you're now engaged in a business, you and your attorney need to consider the most appropriate business structure for you to form from which to do business. You should, of course, also read two or three or ten books on how to start and run a business [visit the first two links below].

    As for the potential patentability of the application -- which is simply a computer program -- your own attorney needs to review how the courts and the Patent Office have been ruling on that question lately [visit the third link below]. In short, ecommerce-related and other processes are now routinely held unpatentable. He or she -- and you -- should also read about the current state of the law regarding the patentablity of software [visit the fourth and fifth links].

    Yes, this is all information that you, as the business owner, must know. You can and should have a legal advisor but, at the end of the day, you will be paying the piper. You should know what you're paying for. My suggestion is to speak with a savvy intellectual property attorney -- who may not be a patent attorney. Your business will require far more attention than the mere question of whether you should apply for a patent. While I am a patent attorney, most of the business and intellectual property legal work a start-up needs has nothing to do with patents. Good luck.

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  • Got a letter for trademark infringement. They're asking for information. What am I obligated to provide?

    I have been sent a letter claiming that I have infringed on a trademark, but that they will attempt to pursue an amicable resolution to this matter, but if I do not comply with their demands, they will pursue further legal action. Demand one is to...

    Daniel’s Answer

    You've already recieved very good information. I write only to add that if you have been infringing someone's trademark then you have very little, if any, leverage in this situation. You are the bad guy and can be forced to defend yourself against, at least, trademark infringement claims. Perhaps in a courtroom in a far away state. You and your own attorney need to consider submitting a claim to your insurance carrier and then, very nicely, persuade the rights holder that you're not a front for a larger counterfeiting operation [if that's true]. Also, please be aware that selling counterfeiting products is a crime. Do not discuss this matter with the complaining party yourself. Speak through your attorney.

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  • Intellectual property rights abused?

    Hello Attorney, I feel that my intellectual property rights are being abused by the company that I worked for. I am a coupon uploader for a coupon or deal website. My job is to search coupons, analyze them, and upload them to their database. I am ...

    Daniel’s Answer

    "Intellectual property" is merely a label, like the word "color" -- neither mean anything unless you specify which property or which color. An "intellectual property" is either a patent, copyright, trademark, trade secret or a right of publicity.

    So which of these property rights of yours is "being abused"? None.

    As my colleague notes, you apparently have an employment contract matter that you think needs attention. You need to speak with an Illinois-licensed employment attorney.

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  • Dmca took my IMVU account away from me, saying that I abused the dmca act but I did no such thing. They said I cant appeal

    Dmca said I can not appeal what has happened and they took away my account which I make real money off how can I fight against this?

    Daniel’s Answer

    "DMCA" is not a person. The acronym stands for "Digital Rights Management Act" -- a part of the Copyright Act. A rights owner has apparently complained that you have infringed, at least once [likely more] its copyrights via your conduct on IMVU.com. You and your own copyright attorney need to read IMVU's "Counter-Notification" section of its Terms of Service and decide whether to send one [visit the link below]. Do NOT simply send one yourself because if you have infringed then sending the counter-notice adds to the unlawful conduct for which you can be sued. So speak with your own copyright attorney.

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  • First to use rule enough to overcome a federal trademark registration?

    Want to federally register a trademark with the USPTO, but have come upon the "first to use" rule in California which says that even if I file and my trademark is registered, if someone has a common law mark (unregistered), which they can establis...

    Daniel’s Answer

    What is unfair about trademark rights going to the person who first uses the trademark in commerce? Nothing. Second comers like you need to be creative and come up with your own branding. Just like the first user did.

    As for registering trademark rights, what is unfair about denying a second comer a registraton for the rights developed by and owned by the first user? Nothing. Registration is voluntary, not mandatory.

    Speak with your own trademark attorney to learn more about these fundamentals.

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  • I am purchasing material from a already licensed dealer to make purses with the team logos all over the material. I want to sell

    I want to sell my products but the fabric shop has a agreement with the dealers already do I need to get additional agreements from teams to sell my product

    Daniel’s Answer

    Assuming you're right that the company selling the logo-displaying material actually has a license to sell the material, that license does not run to you. In short, you DON'T have a license to sell products made from that logo-displaying material just because you lawfully buy it from a licensed seller.

    Think of this way: A "license" is simply a promise not to sue someone for doing what they permission to lawfully do. In your case, the company that owns the sports team whose logo you want to use has promised not to sue its licensed fabric dealer -- it hasn't promised not to sue you. Sometimes a license expressly provides that the licensee [in this case the fabric seller] can "sublicense" its license rights to others. But that is never the case when what's being licensed is logo-displaying fabric. The reason is that the brand owner loses control over its brand. Specifically, it has no control over the quality of the product you make that displays the brand owner's logo.

    So ... no, you may not lawfully make and sell products using "licensed" fabric that displays someone's logo. Speak with your own Kentucky-licensed intellectual property attorney for more information and private advice.

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  • Is this transformative enough to be considered Fair Use under copyright law?

    I've made many of these videos and naturally some of them get claimed by the original owners of the music and/or visuals. If these cases went to court, would they most likely get ruled in favor of Fair Use or not? Here's an example: https://www.yo...

    Daniel’s Answer

    • Selected as best answer

    This site is for general legal information only. No one will [or should] visit your link and then provide you with specific advice. Because a copyright infringement claim can result in substantial costs to defend, settle, or -- worse case -- monetary liability after trial, you need to speak with your own copyright attorney in private if you intend to rely on "fair use" to justify displaying others' copyrighted works.

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  • Is it okay to sell blank soccer jerseys?

    Hello, I have a question regarding selling soccer jerseys. I completely understand laws regarding trademark/copyright infringement and the rights of their owners, and I totally agree with it. Companies have spent decades and millions of dollars to...

    Daniel’s Answer

    I don't think my colleagues addressed the most relevant issue.

    The shirt is the product. The designs on the shirt are its branding. It is unlawful "reverse passing off" to remove a product's branding and then re-sell the product as new either unbranded or under another brand. This is true even if consumers no longer associate the altered product with the original manufacturer. [Perhaps you can lawfully sell the altered shirts as used.]

    As noted, there's also the added wrinkle that consumers will associate the altered product -- in this case a soccer jersey displaying a soccer team's colors -- with a particular company [the soccer team]. That's a wholly seperate legal wrong than "reverse passing off." That, as noted, is trade dress infringement.

    Speak with your own trademark attorney but my take is that your plan is very likely unlawful.

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  • Do we need IP Protection and Trademark for our new website?

    We have a new website which is similar to Avvo but targets a different kind of business than law. We've formed an LLC. Do we need IP Protection and trademark? Anything else you would recommend to protect us and our brand? Thanks.

    Daniel’s Answer

    My colleagues have already ably answered your questions. I write only to note that there are many currently-in-force utility patents that claim processes the same as, similar to, or related to online question and answer forums. You can view some of them via the link below. While many such patents would, under our new patentability rules, likely be deemed invalid they are, nonetheless, currently enforceable. In short, you need to ensure that your online question and answer forum -- or some aspect of it -- does not infringe one or more of those currently-in-force patents. Speak with your own California-licensed patent attorney in private for a "freedom to operate" analysis and opinion.. Good luck.

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