Skip to main content
Timothy B Mccormack

Timothy Mccormack’s Answers

4 total

  • How to fight against Getty Images Copyright Infringement letter and notice from their attorney?

    My client received a letter from Getty Images and their copyright lawyer for three images on the website. We had used off-shore freelance company for building the website, who is no longer around. How can we fight against this or what's the bes...

    Timothy’s Answer

    These matters are fairly straight forward - images used without permission. Please pay. I always recommend, however, getting getting a knowledgeable attorney.

    See question 
  • Can I create from scratch a well-known logo with different colors and different fonts from the original to sell online?

    If I cannot, how do I legally fix this?

    Timothy’s Answer

    The Likelihood of Confusion Standard is the legal test for trademark infringement

    A determination as to whether a mark is confusingly similar to another involves a two step process. First, one must look at the marks themselves for similarities in appearance, sound, and connotation, i.e., the commercial impression of the trademark. Second, one must compare the goods or services to determine if they are related or if the activities surrounding their marketing are such that confusion as to origin is likely. Similarity in one of the referenced elements is sufficient to find a likelihood of confusion. It is generally accepted that a subsequent user is precluded from appropriating the mark of another and avoiding the likelihood of confusion by simply adding descriptive matter to the other party’s mark. The goods or services need not be identical or directly competitive to find a likelihood of confusion. They need only be related in some manner, or the conditions surrounding their marketing be such, that they could be encountered by the same purchasers under circumstances that could give rise to the mistaken belief that the goods and services come from a common source.

    To analyze whether a particular situation has developed the requisite "likelihood of confusion," courts have generally looked at the following eight factors:
    1. the similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);
    2. the similarities of the goods and services involved (including an examination of the marketing channels for the goods);
    3. the strength of the plaintiff's mark;
    4. any evidence of actual confusion by consumers;
    5. the intent of the defendant in adopting its mark;
    6. the physical proximity of the goods in the retail marketplace;
    7. the degree of care likely to be exercised by the consumer; and
    8. the likelihood of expansion of the product lines.
    The first five of these factors are examined in every trademark infringement action. The last three factors are the most common additional factors that are considered by a court.

    You can't copy someone's trademark and change only the colors and font, although in many cases two or more companies do have similar marks used in different ways. The best approach is create arbitrary or fanciful mark with strong protection. Here is a link to an article I did for the Bar Journal on the topic. I hope this helps.

    See question 
  • Is it necessary to get a Trademark filed right away or can it wait?

    I am looking to file a trademark for a name i made up. I am confident it's not been ever used and have done extensive research with a friend of mine who works at a law firm. I asked my friend and he said it's not necessary because of what we...

    Timothy’s Answer

    A “trademark” or “service mark” can be made up of any word, name, symbol, logo, color, sound, or product shape or any combination of these elements. Typically, a trademark is used to mark goods. Alternatively, a service mark is used when selling services. This article refers to trademarks and service marks synonymously.

    A trade name, which is similar to a trademark, merely represents the name of a company. Similarly, a domain name is part of a unique address that identifies a particular web site on the Internet. Typically, trademarks trump trade names and domain names and, therefore, registering one’s trade name with the state is not good enough to protect rights in the name. The same is true of domain names.

    Protecting One’s Marks

    Generally speaking, trademarks can be protected in four different ways. First, trademarks can be nationally registered through the United States Patent and Trademark Office. Second, trademarks can be registered on a state-by-state basis. Third, trademarks can be protected within specific geographic areas under the common law of particular states. Fourth, trademarks can be protected internationally. As an aside, charitable groups, non-profit corporations, professional and fraternal groups and educational and religious institutions receive the same protection against confusing use of trademarks and corporate names as for-profit business organizations.

    Here is an article I did for our local bar association on trademarks. I think you will find it helpful.

    See question 
  • Being accused of copyright infringement on facebook, can i get in trouble for sharing a flyer?

    I recently shared a flyer on facebook and another person accused me of copyright infringement stating that the painting in the flyer is someone else's painting so i asked if he was the 1 who painted it and he says "mayb what is it to you?" so i sa...

    Timothy’s Answer

    Mere unauthorized use of a picture downloaded from the Internet (even from a “free site”) is enough to create liability for a business using the copyrighted work without permission. This is true, regardless of how the infringement came about. Typical copyrighted works that get businesses into trouble include images and text “acquired” from the Internet.

    Copyright infringement can occur willfully or “accidentally,” but copyright law prohibits both. One federal court recently held, “there is no need to prove anything about a defendant’s mental state; [copyright infringement] is a strict liability tort.” A strict liability tort is a legal wrong that does not require a “mental intent.”

    In other words, a copyright owner, does not need to prove a defendant intentionally infringed the copyright in order to create liability because it is a “strict liability” tort. If you copy a picture from the Internet without permission, for example, you can be liable for damages even if you did not know the picture was copyrighted. That is the essence of “strict liability.”

    Although there might be a "fair use" defense to consider or implied license(s) but the general rule is don't use copyrighted material without permission. Here is a link to an article I did and a great legal comic book from Duke University Press that my old copyright profession worked on. It explains fair use well.

    See question