I have an established retail store that has been open in NC for several years. In the past year, 2 other stores have opened up & are selling extremely similar merchandise as my store does with the exact same name as my company. The only difference...
In the case of the store were you already had an established customer base, you have common law trademark rights that they are infringing upon, and you can stop them from using the name. In the case of the store in Tennessee, you will likely not be able to stop them from using the name.
Trademark rights arise from actual use of the mark in connection with your goods or services. Common-law rights exist in the specific geographic areas where the mark is used, and a reputation is established. Registration provides the presumption of the right to use the trademark throughout the entire country, but is inferior to any pre-existing common-law rights.
Because you already had an established customer base where the one store opened, as long as the name of your store is not generic (describing a class of goods or services) or sufficiently highly descriptive so that secondary meaning (becoming known as a source of goods or services rather than a description of the goods or services) would be difficult or impossible to obtain, your trademark rights are being violated.
Unfortunately, even if you apply for and receive a registration, you are unlikely to be able to stop the store in Tennessee from using the name in the absence of common-law rights in Tennessee that predate the opening of the store.
A typical first step would be for your attorney to send a cease and desist letter to the offending store. If they refuse to change their name, see you can be filed against them.See question
I plan to start a biopreservation nonprofit. It would specialize in the preservation of Dinosaur soft tissue DNA . Would it be copyright infringement to call it the 'Jurassic Park Project'?
As others indicated, this would be a problem. Since the services would be different than the goods or services for which the movie has trademark rights, and since the movie is famous, the specific issue would be trademark dilution. So, you will need to come up with a different name.
Since you will need a new name, some guidance regarding name selection may be helpful. Try to choose something that suggests, rather than describes, a quality of the goods or services, or which has no apparent connection to the goods or services. A descriptive mark is not entitled to trademark protection until it becomes associated in the minds of consumers with a source of goods or services, which is called acquired distinctiveness or secondary meaning. Typically, this requires five years of continuous, substantially exclusive use, but more may be required in the case of a highly descriptive mark. A generic mark, which describes a class of goods or services, is never entitled to trademark protection. A suggestive or arbitrary mark, which is inherently distinctive, is entitled to immediate trademark protection.
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
A photo I took of a girl for a company was posted on social media by us. That girl was recently on Fox news and the TV station used the image I took. Is that allowed or is there a copyright violation involved here?
As others pointed out, ownership of the copyright must first be established. If you took the photo as an employee of the company, then it is a work made for hire owned by the company. If you are an independent contractor, then absent an assignment, you own the copyright.
If I take textbooks, scan them in, and create a digital library, would I receive a copyright claim from the textbook publishers.
Yes, this would be copyright infringement. Presumably the copyrights are registered, so you would be liable for statutory damages (which, unlike actual damages, do not need to be proven) and attorney fees, in addition to the possibility of an injunction.
the Google Books cases provide an interesting road map on a possible way to do this. Only 80% of the book is available, so getting the other 20% still requires purchasing the book. The text is searchable, which one court found to be "transformative," and this contributing to one of the fair use factors. The opportunithy to opt out was provided. I would still absolutely not advice such a course of action without a huge risk tolerance and huge litigation budget.
The best approach - and only approach I would recommend - would be to approach the publishers in an attempt to negotiate license agreements, and to proceed only for those books for which license agreements are obtained.See question
I'm wondering if any attorneys would be willing to draft/compose a cease & desist letter and give us authorization to distribute as needed. We've spent years building our Amazon division and the associated brands and we find ourselves in a consta...
I share the opinions of those who would be concerned about letters going out under their name without thier review of the facts behind the letter and authorization to send the letter. I would certainly want a reputation for only sending out cease and desist letters that I believe have a basis in fact and law. Most attorneys would also correctly be concerned about their own liability if letters were sent out under their name and turned out to be baseless.
However, if the cease and desist letters are typically based on similar infringement for similar products, much of the content of a previous letter could be used as a template for the next letter in order to keep fees for subsequent letters reduced. Attorney time would still be needed to review the facts of the situation and customize the letter.
Sending out a cease and desist letter that turns out to be baseless can result in liability, particularly if notification is sent to third parties like Amazon in addition to the offending parties. Also, some state Attorney General's offices have been investigating cease and desist letters as a result of the "patent troll" problem of the past few years. Not only is a letter from your attorney more persuasive, but having your attorney involved also ensures that there is a good faith basis for the letter and protects you from liability.See question
The pictures allegedly were on a download a link from my website- They alleged;y saw it December 30th, 2016- My website has been redone in November 2016 and I am sure that this was never that The pictures were on a slide on a presentation that I ...
I agree with the others who advised seeking the assistance of an attorney immediately.
Infringement of a registered copyright carries liability for statutory damages (which do not need to be proven) plus attorney fees. However, if the image was not registered with an effective date (backdated to the date the last item of the application was received once the registration is issued) prior to the date of alleged infringement (date the image was allegedly placed on your website or otherwise copied wrongfully), then they are limited to actual damages (which must be proven) and possibly an injunction.
If there was no copyright notice, then the possibility exists of proving that you were an innocent infringer, which would reduce liability for statutory damages and attorney fees.
They would need to prove ownership of the copyright, registration of the copyright, and that you wrongfully copied the image. To really benefit, they would have to prove that the copying took place after the effective date of registration. However, if suit was filed, the discovery requests would certainly include copies of your website, presentation, etc.. Do not destroy any of this material, because doing so could result in sanctions more significant than any damage these materials could do to your case.
Your attorney can review the facts, let you know whether they have a case, and depending on the results, either convincingly tell them to go pound salt, or reach an appropriate settlement. Your attorney can also be sure that any communications are inadmissible settlement negotiations and not admissions against interest which are admissible as evidence.
Unfortunately this type of thing is becoming more common. I suspect that some sources of some of these images may specifically be set up as traps for the unwary so that settlements can be extracted through demand letters.See question
i want to make protection for copyright internationall,do ihave to make copyright in every country separately or i can make it at once?
international copyright protection is governed by multiple treaties, including but not limited to the Berne Convention. Under the Berne Convention, countries that have signed the treaty agree to protect the copyrights of residents of other signing countries without the need for any formalities. However, it is still wise to review the laws of any specific country in which you are particularly interested in protection to see whether registration is available. If registration is available, then registering the copyright would be advisable.
In the United States, copyright protection is automatically owned by the author of the work. However, in order for that protection to have any real teeth, registration is required. A copyright owner must receive either a registration or a refusal to register from the Copyright Office before filing suit to enforce a copyright. As a practical matter, I would be very hesitant to file suit after receiving a refusal to register without a very good reason to believe that the decision was erroneous. although it is possible to obtain a decision quickly by requesting special handling, registration conveys another important benefit.
Infringement of a registered copyright carries liability for statutory damages plus attorney fees. However, if a given defendant begins infringing a given work prior to the date on which the last item of the application is received by the Copyright Office, then statutory damages and attorney fees are not available against that defendant for infringing that work, even for infringement that occurs after a registration is issued.actual damages (which, unlike statutory damages, must be proven) and possibly an injunction could still be obtained. However, unless the amount of provable actual damages is very substantial,filing suit is unlikely to be worthwhile.
You should also place a copyright notice on your work. Although notice is not required in order to enforce a copyright, the lack of notice can open the door to the possibility of a defendant reducing their liability for statutory damages by proving that the defendant is an innocent infringer.
I recommend a private consultation with your intellectual property attorney in order to determine the best protection for that which you seek to protect, as well as which treaties may apply to the countries of interest, and whether any additional steps should be taken in those countries of interest.See question
At a for-profit tutoring company, we write notes for our students, which include graphs of mathematical functions. A particular website creates graphs (based on user input, of course, e.g. the equation to be graphed). Is the fact that I have a h...
Copyright protects original creative expression. Since it is expression that is protected, factual information itself is not protected, but the manner in which the information is expressed is protected. In the case of a graph of an equation, the scope of copyright protection would be minimal at best, limited to any original creative choices that were made in creating that graph. It is likely that no copyright protection whatsoever is available for an individual graph.
if these functions and graphs are arranged into a larger work, that arrangement is much more likely to be capable fo protection through copyright.
For instance, if I wanted to build a website that worked very similarly to Facebook, what kind of gotchas in particular should I look out for? Obviously my user interface would have to be different, but how much different? If I offered the same or...
In general, offering a competing service is fine. However:
1) The appearance and/or elements of the display could be protected by some combination of copyright, design patent, and trade dress.
2) Some software functioning could be protected by a utility patent, and the specific coding is likely protected by copyright.
3) Whatever trademark you use should be completely different than Facebook or anyone else's trademark to avoid a likelihood of confusion.
4) If elements of Facebook are protected by trade secret, you cannot misappropriate those secrets (luring away key employees, etc.), but you can reverse engineer them without liability.
I would encourage reviewing your plans with an intellectual property attorney not only to ensure no infringement of anyone else's rights occurs, but also to protect any of your own unique developments and your own trademark.See question
Hi, I would like to sell a specific paint from a specific manufacturer who I know produces quality paint. The problem is they are only selling in large quantities. People would gladly buy 0.5 liters, but the smallest package they sell is 5 liters...
Beginning with some general guidelines, in general, when you purchase something, under the first sale doctrine, you are free to do what you like with it, with some exceptions. Unfortunately your question falls squarely within those exceptions.
1) if you re-sell the product with no modification, you must leave the original trademark intact. Changing the packaging is a modification.
2) If you sell the product onmodified, or with trivial modifications, then you are potentially liable for false designation of origin or reverse passing off. In the case of paint, colors are often mixed at paint stores for sale to individual consumers (but not repackaged for resale), so there is a risk that mixing the paint would be only a trivial change. The end product would need to be reviewed.
3) If you sell a modified product with the original trademark, that is trademark infringement.
4) If you sell a product with nontrivial modification with your own trademark, that is okay. Again, I would review your specific facts to determine whether your mixing results in a nontrivial modification.
In the case of a sauce in the linked question, mixing different sauces clearly creates a different product. In the case of paints, due to the way paints are sold, I am not so sure.
I would encourage a discussion with the manufacturer of the paints, which might result in support for your plan and resolve your issues sim;ly and cleanly. Your own trademark attorney can help with negotiation of any agreement, or with providing guidelines and clearance of your plans in the event that the manufacturer is not helpful.See question