If I did original research into historical documents and records and produced a family tree from that information, do I own the rights to that tree? The reason I am asking is that somehow my tree got posted on a public website despite the fact th...
Attorney Ballard provided a good explanation. Copyright protects original creative expression. It protects the expression of an idea, not the idea itself. So, the information in your family tree is not protected. The manner in which the information is organized and presented can be protected, but the general idea of a tree-like chart is not sufficiently original to be entitled to protection. However, if you include other original creative expression, then that original creative expression - and only that original creative expression - is protectable.
Additionally, the fact that you have not yet registered your copyright presents additional practical obstacles for you. Infringement of a registered copyright results in liability for statutory damages and attorney fees. However, with narrow exceptions, if infringement began before the effective date of registration (backdated to the date the last item of the application was received once the registration is issued), then statutory damages and attorney fees are not available, and you are limited to actual damages and possibly an injunction.
If this is a family issue, then hopefully it could be worked out with a discussion with the other family members before the need arises to engage an attorney. If that fails, I would encourage a consultation with the attorney of your choice before going further and potentially fracturing important relationships.See question
Both companies make similar fitness products. Want to be sure no trademark infringement would occur if the name Vive was used due to similarities with the exiting trademark Revive.
I can see arguments on both sides. The problem with an argument is that you can lose. Since you are in teh beginning stages of choosing your name, you want to choose something that is sufficiently original and distinctive so that no one has an argument that there is a likelihood of confusion with them. By choosing your name to avoid any possible issues, and having a full clearance search and opinion prepared, you can avoid serious problems later.See question
I design and paint wall murals -- of my own design. A friend has asked me to paint their favorite college team's helmet (with logo) on their basement wall. He's offering to pay me for it. I will design the artwork as close to the logo as I can,...
I agree with others who indicated that this is technically trademark infringement. If the logo has copyrightable elements, then it could also potentially be copyright infringement. Although you are unlikely to be sued for a single painting of the logo, do not go into the business of painting these logos.See question
I am trying to create an apparel line and I have created my own logo, I have since found a photo on the internet that I would like to use as part of the logo. I have taken the original photo from the internet and modified it so that it fits inside...
I would urge caution in using any photo found on the Internet. We are seeing an increase in the number of questions resulting from demand letters sent after a photo from the Internet was used. Often, these photos come from websites that appear to offer "free" photographs, but buried within the fine print are limitations on the permitted free uses, essentially baiting people to engage in copyright infringement so that a demand letter can be sent. I strongly encourage using something completely original as your logo.See question
I have a non-profit organization, 501c3, that I am starting up in the state of South Carolina regarding youth development. I am trying to partner the program with churches and schools. I presented the plan to the church leader who promised to meet...
Unfortunately a business plan is not really protectable. Although copyright protects the expression of an idea, it does not protect the idea itself. So, you can stop the copying of your expression of your business plan, but you cannot stop anyone from implementing the same plan.
It may be that the circumstances under which the business plan was presented would have implied a duty of confidentiality. However, this could be difficult to prove, and even if you could prove it, quantifying monetary damages would be difficult. Gaining an injunction would require showing irreparable harm.
I suggest a discussion with a business lawyer admitted in South Carolina.See question
I am starting a nonprofit. - I can not form it yet due to complete funds, but my name is most important to me. - I am using the name with the Trademark mark. - Have the domain name and website . o r g name[s]. - My email address is the same name. ...
Unless and until the nonprofit is up and running, and providing the service, you are not using the trademark. However, you can begin the application process based on the bona fide intention to use the trademark. You will not receive the trademark unless and until you begin using the trademark. Use of a service mark means, at the very least, that a present offer to provide the services to the general public has been made, the services are presently available, and the advertising material for the services uses the trademark and describes the services. Some caselaw could be read to indicate that a customer must have actually utilized the services.
Use of a domain name is not trademark use, but using a domain name that is confusingly similar to a registered trademark is trademark infringement. Setting up a website, without more, is also not use of the trademark, and it is exactly this type of placeholding that led to the caselaw indicating that customers must actually be using the service.
Before registration, the issue of availability of the name must be examined more carefully. Trademark rights are acquired by using the mark in a specific geographic area, for specific goods or services, to distinguish your goods or services from those of others. Trademark rights exist where the mark has become known for its connection with those goods or services. This is known as common law rights. Common law rights do not extend to other geographic areas or to other goods/services unless the mark becomes famous. Federal registration provides a presumption of the right to use the mark throughout the entire country, and is an important step in preserving your rights for this reason, but is inferior to common law rights that existed prior to the date the application for federal registration was filed. So, it is not just federal registrations, but also state registrations and unregistered "common law" trademarks that must be considered.
Before adopting a trademark, I always recommend a full trademark search and clearance opinion. The search covers not only federal registrations, but also state registrations, telephone directories, Dunn & Bradstreet, trade directories, Internet domain names, Internet searches, and other sources of information about common law trademarks. Variations, fragments, and misspellings of the mark are searched, so that any mark that might present a risk of confusion is identified. The results of the search are then analyzed, and a written opinion prepared. If the results are favorable, then you can be reasonably assured that you will not receive a cease and desist letter after having spent thousands of dollars on signage, advertising, etc., making the search very worthwhile.
If the search results are favorable, then an application for federal registration should be promptly filed. This can be done based on a bona fide intention to use the mark, but actual use of the mark is required in order to complete the registration process.
Your trademark is intimately tied to your reputation. It is worth selecting and protecting carefully.See question
I have a question on compound word trademark registrations. Without disclosing the actual name, we have a trademark application that has passed through opposition. we have submitted the specimen and are awaiting a registration. ...
There is a good chance that the Examining Attorney will find your earlier-filed application in their search. Given that the first and last words are the same, and the only difference is the addition of a word in the middle which really does not change the meaning by much, the similarity of the marks appears to be high. Although the marks are in the same class, that is not determinative of whether the goods are related. Goods are related if a consumer would believe that the originate from the same source. Often, unrelated goods or services appear in the same class, and related goods or services appear in different classes. Without knowing the specific goods for each application, it is impossible to say definitively whether they are related.
Monitor the progress of the other application. if the Examining Attorney rejects it, and if the rejection is overcome, then the problem is solved. If not, then you need to consider whether to file an opposition. Once the application is published in the Official Gazette, you have 30 days to file either a Notice of Opposition or a Request for Extension of Time to file a Notice of Opposition. An opposition is a mini-litigation conducted before the Trademark Trial and Appeal Board, and is not to be undertaken lightly. Consult a trademark attorney if the other application gets through examination.
You may also want to consult a trademark attorney sooner, because if a likelihood of confusion does exist, this fact can be pointed out to the other applicant's attorney at a time when their investment in their mark is hopefully minimized, and when it might be easiest to persuade them to pick something else.See question
We would like to present a product (which is made for blind people) at a big conference/competition in Seattle, and mention that we are in communication with 3 different American NGOs, and we have talked to them on Skype and we have sent prototype...
Although you are allowed to use a trademark in order to truthfully refer to the trademark owner or their products, I would be particularly concerned in this case about trademark infringement by implying sponsorship, affiliation, or endorsement by the trademark holder. This is particularly true because it appears that you are hoping to use your contact with these companies to bolster your presentation of your product.
If your reason for mentioning them is to say "This company tested our prototype and found these results," then in the absence of any agreement to the contrary with the company, that should be okay. You are better off using the name of the company only, rather than stylized elements of the logo. Do not use the trademark any more than necessary to make the point you are trying to make, because overuse can be seen as trying to benefit from the company's reputation. A disclaimer can also help..See question
I was about to place an order on a product overseas that I wanted to sell in the US. These products will also remain unbranded directly from the manufacturer. However, additional research finds me another identical product that is already branded ...
To the extent that you need to name or describe your product, you must avoid any name that will create a likelihood of confusion with the other brand.
It is possible t hat the items you are importing are subject to utility patent, design patent, and/or trade dress rights. It is also possible that any portion of the products that represents original creative expression, and which is separable from the item itself, is subject to copyright protection.
Do not depend on any assurances you may receive from the overseas manufacturer regarding intellectual property rights to the items You, rather than the overseas manufacturer, are the party most likely to find yourself on the hook for any intellectual property infringement that takes place in the US.
I encourage a private consultation wit an intellectual property attorney to discuss your specific product, and the specific steps that should be taken to ensure that you do not infringe anyone else's rights.See question
I see several styles of the milk snob multi use nursing cover. Isn't it illegal for those sellers since that has been patented. My fried is going to sell them as well and I told him that it has a patent on it. She said that hers isn't being market...
It is unclear whether the rights at issue are patent, trademark, or both. In either case, it is a civil violation for which the risk is a civil suit, monetary damages, and an injunction, rather than criminal liability.
A patent protects the structural features of a device, and/or a method of doing something. A patent is infringed when the accused device includes each and every element recited within one claim of the patent, regardless of whatever else the accused device may have.
If the issue is a patent, then the claims of the patent must be compared to the product. The patent, as well as its prosecution history, must be reviewed to determine whether any claim elements that are not literally present could be present under the doctrine of equivalents.
A trademark is the name or logo used to identify the product as one originating from a particular source. It is infringed by using any other trademark that is sufficiently similar, for related goods or services, that is likely to cause confusion.
To determine whether trademark infringement exists, the extent of the trademark rights of the trademark holder must be examined. Then, eight factors set forth by the Supreme Court must be analyzed to determine whether a likelihood of confusion exists.
I would encourage your friend to discuss her specific situation with an intellectual property attorney in order to determine whether any risk of infringement of patent or trademark rights exists.See question