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Michael S. Melfi

Michael Melfi’s Answers

145 total


  • I just launched a new website and hired an attorney to conduct a federal trademark search and internet search for competing name

    Michael’s Answer

    Yes it is, because you could encounter a problem that a state or common law trademark is the senior user of the mark, even though no federal registration is granted. Most attorneys forget that trademark rights, enforcement and protection arise not from registration, but use. One with state or common law trademark rights is able to bring an action pursuant to the federal trademark act (“Lanham Act”) for infringement even though they have no federal trademark registration.

    Your best bet is to consult with an intellectual property attorney that has experience similar matters. This attorney will have a good understanding of the complexities of your matter and probably provide a legal consultation and analysis of your situation. This communication does not constitute legal advice, and is for informational purposes only.

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  • Can Jared sue Chris over the website?

    Michael’s Answer

    A court could imply a contract exists even though one has not been written by the conduct of the parties. Chris for the purposes of copyright law would be the author of the work in the absence of an agreement (work for hire) and could argue that he is an independent contractor, which could make the case stronger for him under authorship rights under U.S. copyright. On the other hand, a court could imply a contract under normal contract principles and a case could be made for trade secret misappropriation under such circumstances.

    Your best bet is to consult with an intellectual property attorney that has experience similar matters. This attorney will have a good understanding of the complexities of your matter and probably provide a legal consultation and analysis of your situation. This communication does not constitute legal advice, and is for informational purposes only.

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  • Are tv series episode names copyright or trademark protected?

    Michael’s Answer

    Under U.S. copyright law, names, titles, short phrases or expressions are not protected; see U.S. Copyright Office Circular 34-0112. However phrases, slogans, etc, may be protected under federal trademark law and you must be careful of common law protection for such. Without engaging in some form of searching it is hard to say, but as stated, it all depends some courts have given protect if the name in turn interpreted as a slogan or phrase and other have courts have not.

    Your best bet is to consult with an intellectual property attorney that has experience similar matters. This attorney will have a good understanding of the complexities of your matter and probably provide a legal consultation and analysis of your situation. This communication does not constitute legal advice, and is for informational purposes only.

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  • How do i, as a Nigerian , get back my domain name that has been cybersquated by an American Company?

    Michael’s Answer

    Cyberquatting under U.S. law is potentially a cause of action, but the better bet is through the dispute resolution of ICAAN. The case would probably be assigned to an arbitrator in the African region, because they have arbitrators all over the world. However, given that your contract is with a U.S. entity and if the choice of law is the U.S., then it may be assigned in another region, while this is an option it can be costly.

    Your best bet is to consult with an intellectual property attorney that has experience similar. This attorney will have a good understanding of the complexities of your matter and probably provide a legal consultation and analysis of your situation. This communication does not constitute legal advice, and is for informational purposes only.

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  • Hi - I'm currently working on an art project that uses distorted images of past cartoons. Would I be protected under fair use?

    Michael’s Answer

    It may be deemed fair use under the circumstances and if the word project is interpreted as meaning educational, commentary, parody, etc. If on the other hand it is sold for commercial purposes then that is a different set of facts entirely.

    Your best bet is to consult with an intellectual property attorney that has experience similar. This attorney will have a good understanding of the complexities of your matter and probably provide a legal consultation and analysis of your situation. This communication does not constitute legal advice, and is for informational purposes only.

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  • Determining generic ness of trademark in federal court-is there a statute of limitations for a lawsuit?

    Michael’s Answer

    The answer is simple; pursuant to 15 U.S.C. 1064(3) a registration of mark that has become generic can be cancelled “at any time.” And Registration of a mark may be opposed or cancelled if the mark is or has become generic. Lanham Act Sections 2(e)(1), 14(3); 15 U.S.C. §§1052(e)(1), 1064(3). It is either during the prosecution stage (or within 5 years) or after five years applies to cancel a mark for being generic. And that you will probably have to show that you have standing to do so i.e. being damaged.

    Your best bet is to consult with an intellectual property attorney that has experience similar matters. This attorney will have a good understanding of the complexities of your matter and probably provide a legal consultation and analysis of your situation. This communication does not constitute legal advice, and is for informational purposes only

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  • Can old watches that have a trademark logo on them be used to make other objects without infringing on the trademark?

    Michael’s Answer

    You could potentially have a couple of issues, namely, trade dress and copyright. Trade dress protects the look and feel of the product and copyright would protect the originality of the work. There may be feature of the old watches that are protected and unless the issue of fair use is available it could potentially amount to infringement.
    On the other hand, it could also amount to a derivative work under copyright law, and therefore you would probably need to seek permission from the watchmakers, and if granted may only provide limited protection.
    Your best bet is to consult with an intellectual property attorney that has experience similar matters. This attorney will have a good understanding of the complexities of your matter and probably provide a legal consultation and analysis of your situation. This communication does not constitute legal advice, and is for informational purposes only.

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  • Can I file for a provisional patent after a recent public disclosure? And if so, how long should I wait to file one?

    Michael’s Answer

    You probably want to file it as soon as possible, given the law relating to patents recently changed, prior to the change it was the first to reduce it to practice as oppose the first to file. The longer you wait could have implications down the road seeing that you made a public disclosure.
    Your best bet is to consult with an intellectual property attorney that has experience similar matters. This attorney will have a good understanding of the complexities of your matter and probably provide a legal consultation and analysis of your situation. This communication does not constitute legal advice, and is for informational purposes only.

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  • Am I legally allowed to link to a companies support pages on my own website?

    Michael’s Answer

    • Selected as best answer

    It could be considered fair use under the circumstances and you probably want to approach them to see if it is ok to do it.

    Your best bet is to consult with an intellectual property attorney that has experience similar matters.This attorney will have a good understanding of the complexities of your matter and probably provide a legal consultation and analysis of your situation. This communication does not constitute legal advice, and is for informational purposes only.

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  • Can I use illustrations from an old scientific field guide in my art, if I intend to sell it?

    Michael’s Answer

    In this situation and give the date it may well have fallen into the public domain, but it is always better to check.

    Your best bet is to consult with an intellectual property attorney that has experience similar matters. This attorney will have a good understanding of the complexities of your matter and probably provide a legal consultation and analysis of your situation. This communication does not constitute legal advice, and is for informational purposes only.

    See question