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Rhett V. Barney

Rhett Barney’s Answers

57 total


  • Can a former employee use my pictures to promote his new company?

    I have a former employee who has decided to start his own fishing charter business. In his advertising, and on his website, he is using pictures of himself with my clients to showcase his fishing prowess. The photos were all taken on my boats, wit...

    Rhett’s Answer

    Hello from Spokane.

    You likely do have legal recourse for this. Assuming that you own the photos, and I am assuming that you do based upon the facts provided, the ex-employee is committing copyright infringement by republishing your photos.

    If you would like more information about this, or would like some assistance, you should contact an attorney with experience in copyright matters. There are a few in Montana, but not many, and there are a lot in Washington that can help.

    Let me know if I can be of any assistance as well.

    Rhett Barney
    509.368.7279
    www.barneyip.com

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  • How can I stop mugshots from publishing my name but not my criminal history. I am a licensed professional & this hurts business.

    I am a licensed professional using my name as a PA. I do not see my potential clients before they are retained. I have had clients tell me about my name on mugshots. There is someone with my name on mugshots and because my clients don't know who ...

    Rhett’s Answer

    I hate to break this to you, but this isn't really a trademark question. That being said, criminal records, mugshots, and the like are generally public record, and are thus available for the public to see. As a result, you would be hard pressed to get that information removed from the internet, as far as I know of anyways. This is especially true since you are not the person in the mugshot.

    My recommendation to you is a practical one, and that is to create an online presence and identity. Make yourself visible online, and make sure that you clients have the option of finding you online. If you are not sure how to do this, there are multiple companies that specialize on creating online 'brands' of people like yourself.

    Good luck
    www.barneyip.com

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  • Can I authorize US real estate brokerages to use our trademarked name at 1 time small tech fee & under $100 p/mo admin?

    We want to establish a national brand identity for independent brokerages to allow them to compete with the established brands. We will provide a templated website, branded marketing & recruiting ads and our comp plan although they can change ...

    Rhett’s Answer

    Honestly, I think that the reason that this question has gone unanswered for over a day is because it is not clear, at least to me, what exactly you are looking for here.

    If you are asking if you can arrange a fee for use of your trademark, and then require a $100/month admin fee (for what is unclear), then yes, you can do that. You can basically do whatever you want in a contract as long as it is legal. It would be considered a license agreement to use the mark. The best way to go about doing this would depend on whether you have a registered trademark, or if the trademark is a common law mark. If it is a common law mark, I would recommend that you register it before licensing it to anyone.

    I am not going to recommend anything more specific than that though. If you really want more info than what I have provided, my suggestion is to see an intellectual property attorney who is also experienced in business matters (franchise law). Or at the very least, rewrite the question with more details.

    Good luck
    www.barneyip.com

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  • Can i use the bame of a deceased person in a literary work without permission?

    for example in a short story a cave is found with graffiti identified as "albert einstein" do i need permission for this?

    Rhett’s Answer

    Yes, in general you can use the names of deceased persons in a literary work without issue. However, you should be careful as to how you use the name. For example, you cannot use the name in such a way that leads readers to believe that the deceased person, or the deceased person's estate, sponsors or approves of your book. In other words, you cannot make it look like the deceased person is sponsoring your writings.

    Some states also have right of publicity laws that deal with the rights of deceased famous persons.

    If you are really concerned about improper use, I recommend that you speak with a copyright attorney in greater detail about what you are hoping to accomplish.

    Good luck
    www.barneyip.com

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  • If i name my phone app with the same name as another world known app. I'll change one vowel letter and also add one word

    I want to name my phone app with the same name as another world known app. I'll change just one vowel letter and also add one word beforehand. Will it be a problem with copyright?

    Rhett’s Answer

    It will probably not be an issue with copyright, but it may be an issue with trademark law.

    Trademark law protects the names, logos, designs, etc. that businesses use for their products, and even for their company names. Trademark infringement occurs when there is confusion as to the source of a particular good or service.

    So, if the name that you give to your App is confusingly similar to the name of another App, insomuch that consumers think that they are the same App, or at leas that they come from the same place, then you have likely committed trademark infringement.

    Trademark law is very fact specific , and as a result I highly recommend that you speak with a trademark attorney who can look at the name of your App as it compares to the name of the App that you are referring to.

    Good luck
    www.barneyip.com

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  • Can I use towels with sports teams and celebrities on them, with a modification to the towel, and sell them legally.

    Ive made a product using any common towel you may have, but in order to have a hook to sell more, I would like to use beach sized towels that have logos and names on them.

    Rhett’s Answer

    This is not a question that can be answered fully here on Avvo. The reason for this is because trademark disputes, particularly ones like this one, are very fact specific. That being said, here are some possible outcomes to your scenario:

    The exhaustion doctrine, also called the first sale doctrine, basically says that once a product is purchased legally, then the right's holder has no real control over what happens to the product if it is sold later on. That being said, there are exception to this rule, which include the following:

    * You can't resell the item in such a way that consumers might think that you are somehow sponsored, affiliated with, or otherwise have a relationship with the rights holder

    * You can't modify the product in such a way that creates a potential health or safety risk for the consuming public

    The above rules are not black and white, and they can be interpreted to mean different things in different Circuits, but in general they apply.

    Remember this though, just because there are potential defenses to a trademark infringement claim does not mean that a trademark owner will not sue you anyways. This is a good example of that, as you admit that you want to sell the towels for the purpose of making more money, and you know that you can make more money because the products have the trademarks of another company. Many companies view this as unfair competition, or passing off of their goodwill.

    I would highly recommend that you speak with an intellectual property (trademark) attorney who can look at what you are doing and provide you with some specific instructions on how to go forward. You best bet may actually be to apply to become a licensee.

    Good luck
    www.barneyip.com

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  • How does one trademark or copyright a recipe

    I created a number of original recipes for a soon to open restaurant. Every food item on the menu is unique and created by me specifically for the restaurant. I would like to retain ownership of the intellectual properties (Recipes). It seems...

    Rhett’s Answer

    In general, there is no copyright protection in your recipe as a list of ingredients. The copyright office has a great informative tid-bit on this here: http://www.copyright.gov/fls/fl122.html.

    On the other-hand, you can acquire copyright protection on a compilation of recipes, such as a book of recipes. You could also acquire copyright in the descriptive manner in which you write how the dishes are prepared.

    Trademarks are for logos/names/slogans, etc and serve as indicators of source. I guess it is theoretically possible for a recipe to be a source indicator, but I am pretty sure that this is not what you are considering. Basically, a trademark will not protect your recipe, but it can protect what you call your dish, i.e. 'McChicken'

    Patents, now here is an interesting one. I'm not going to go into great detail on the patentability of a recipe, but here is a link that discusses it in great detail. Further, the article is very nicely written: http://www.ipwatchdog.com/2012/02/10/the-law-of-recipes-are-recipes-patentable/id=22223/

    Once you feel like you are familiar with the areas of law that you want protection for, I recommend that you seek the advice of an experienced intellectual property attorney. The attorney will be able to walk you through your options and possibilities based upon the specific facts of your situation.

    Good luck
    www.barneyip.com

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  • Is it legal if I take a picture of a patented/copyrighted product and post it my website (commercially because I have ads)?

    I bought some products from a large grocery store here in Republic of Ireland. I'd like to take a picture of each product and post it through my (I own it) website. I do not own the trademark/copyright elements such as logos, names, etc. in the pr...

    Rhett’s Answer

    • Selected as best answer

    For starters, I think that it is important that you speak with an attorney versed in intellectual property law in Ireland if you really want to know what your rights and potential liabilities may be. That being said, here are a few of my thoughts on your scenario:

    In the US, you would not be in any kind of patent trouble doing what you are doing. However, there may be some trademark and copyright implications.

    On the trademark side, if the products that you are taking pictures of and posting on your website have logos, slogans, or any other indicia of source, it is possible (though not likely) that the companies could claim trademark infringement. In the US, trademark infringement is based upon consumer confusion. So, if your use of the trademarks, or images of the products lead consumers to believe that you are somehow affiliated with, sponsored by, etc that company, then there could be a claim for trademark infringement. This is especially the case, since you are making commercial use of the marks on your website by selling ad space on the website. To avoid this potential infringement in the US, the solution would be to use the least amount of the trademark/slogan/logo as possible to demonstrate to your readers what the product is. This would be considered a fair use.

    As for copyright, there may be issues with reposting a picture of a product in the event that you do not take it for a certain product or something of that nature. However, in the US I cannot see there being much of an issue. I'd like to hear from my colleagues on this as well though, since I am not well versed in international copyright matters.

    Again, look for an intellectual property attorney in Ireland to give you the exact information that you are needed to make an informed decision.

    Good Luck
    www.barneyip.com

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  • I receive a letter from this place Internet Copyright Law Enforcement Agency and the letter stated that I need to pay $495

    by March 1,2013 or I will be arrest. I sent the letter back on February 25, 2013 and it was returned to me on March 13, 2013. what should i do about this. It was sign by David Walsh Badge Number 37185.

    Rhett’s Answer

    The other attorneys are correct, this is a scam. In fact, a prolific intellectual property law blogger even wrote about them in February. It seems that they are up to no good again. Take a look: http://www.techdirt.com/blog/?company=internet+copyright+law+enforcement+agency

    Good luck
    www.barneyip.com

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  • Is it illegal To sell phones that are from China they aren't braking any patten laws..I am getting the legally.

    Under an LLC and selling them under an untrademark name.. But they thought it was a diffrent phone...but I gave the all the Specifications of mine.

    Rhett’s Answer

    Hi,

    Unfortunately, I have no idea what you are asking. Try retyping the question, add a little more detail, and avoid the typos. This will really help us understand what you need help with.

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