Category: Intellectual Property

Copyrights 101: What You Need to Know (Part 2)
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Copyrights 101: What You Need to Know (Part 2)

Last time we talked about how to get a copyright and when it takes effect. There are many things we use in our daily lives and you may wonder who owns the copyright.

Copyrights Owned by Individuals & Corporations

Any copyrights that are owned by individuals are always part of their estate. For work that was created after we became participants in the Berne Convention, the copyright lasts seventy years after the death of the last author. So, if you and your grandkids decide to write a song together, that copyright is going to last until you or your grandchild passes away. If you have a young grandchild, that could be pretty long.

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Copyrights 101: What You Need to Know
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Copyrights 101: What You Need to Know | Pat Werschulz

Copyright is an area of intellectual property that is just as important as patents and trademarks. There are a lot of questions and misconceptions about copyright:

  • How do you get a copyright?
  • Who owns the copyright?
  • When does a copyright take effect?
Step 1 – Date of Creation  In 1989, the United States became a signer of the Berne Convention. Under this international treaty,  copyrights take effect as soon as an idea is embodied in fixed media. What does that mean? It means if you write your idea down on a piece of paper, store on your hard drive, paint it on a canvas, carve it in marble, or capture an image — these are all ways of fixing in media.

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Spotify Subject to New Copyright Infringement Claim
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Spotify Subject to New Copyright Infringement Claim by Mark Kaufman

The 19-billion dollar music streaming service Spotify found itself on the wrong end of a major lawsuit at the end of 2017. Wixen Publishing Inc. v. Spotify USA Inc. is still in the complaint phase, but the music industry press is already dissecting the merits of the case — as well as the possible implications of the verdict. Filed in the Central District of California, the case is another test of Spotify’s royalty payment practices after it settled a proposed class action worth 43 million dollars.

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Your Trademark Application Was Rejected Due to Likelihood of Confusion. What Now?
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Your Trademark Application Was Rejected Due to Likelihood of Confusion. What Now? | Pat Werschulz

As I’ve explained previously, mark applications go through the Trademark Office system without being rejected, unlike most patent applications. If you’re working with a trademark attorney, everything should go smoothly, because you’ve chosen your mark by working through the research results, making sure there is no likelihood of confusion with other marks. So if you are not working with a trademark attorney and you receive a rejection on your application, it really requires professional help.

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David’s Divorce Dictionary: Money
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David’s Divorce Dictionary: Money | David Kellem

David’s Divorce Dictionary: M is for Money

Definition: In divorce, the word money means “something of which there is not enough.” Based on my observations, the typical middle class family of four in eastern Massachusetts spends around $135,000 per year, after taxes, on a basic family budget:
  • Mortgage or Rent is about $30,000 per year;
  • Utilities and Heat are about $5,100 per year;

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How Long to Get a Trademark Registered?
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How Long to Get a Trademark Registered? | Pat Werschulz

Many times clients ask me, “How long will it take for me to get my trademark?” The real answer is you get your trademark when you start to use it, and I’ve explained that in other posts. Today I’m going to answer the real question, “How long will it take me to get my trademark federally registered, so that I can use the circle R?”

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Is Your Intellectual Property Truly YOUR Intellectual Property?
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Is Your Intellectual Property Truly YOUR Intellectual Property? | Pat Werschulz

Today I’m going to go on a little bit of a rant about some misconceptions people have about intellectual property.

There is a database directory of lawyers called AVVO that allows people to post questions of a general nature to lawyers. Then, different lawyers can choose to answer those questions. The questions are usually sorted according to the type of law that the person is asking about.

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You Can Sue, but You Can’t Hide
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You Can Sue, but You Can’t Hide | Mark S. Kaufman

The United States Court of International Trade was recently the setting for an action brought by a company that wished to remain anonymous.

The plaintiff, referred to as XYZ Corporation, had been importing DURACELL batteries into the United States for 27 years. When goods that are genuine products of a trademark owner like DURACELL–but are manufactured outside the United States before being imported–they are called gray goods.

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Whatever Happened to Cindy-Lou Who?
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Whatever Happened to Cindy-Lou Who? | Mark Kaufman

Earlier this year I wrote about a copyright dispute between playwright Matthew Lombardo and the estate of beloved children’s author Dr. Seuss. The issue was whether Lombardo had infringed on the Seuss copyright with his derivative play Who’s Holiday — or whether the play constituted fair use. As I wrote back in March: Who’s Holiday is a profane, one-woman show that documents the life of Cindy-Lou Who after the denouement of Grinch. It finds Cindy living in a trailer park, after having married the Grinch, whom Cindy had murdered (allegedly in self-defense), before the curtain lifts.

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Intent to Use—Reserving Your Trademark Rights
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Intent to Use—Reserving Your Trademark Rights | Pat Werschulz

One of the questions I am most frequently asked by clients thinking about starting their own companies and businesses: When can I apply for my trademark? In the U.S. Federal trademark system, you can file two different types of applications. One is the Actual Use Application, also known as the 1(a) application, which is where you have already been using your trademark and you have had a bona fide business transaction. This means you just have to fill out the application and go through the process, which takes about eight months. Part of the application process is to submit the specimen that has actually been used. In most of the state systems that have trademark registries, this is the only time that you can apply for a trademark registration, when you are actually using it to conduct business.

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Small Business 101: Deciding Your Trademark
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 Small Business 101: Deciding Your Trademark | Pat Werschulz

One of the most critical decisions you must make in the early stages of your business is picking a trademark that will be effective and work well to promote your brand. How do you decide what your trademark is going to be? The first step is to pick your brand name. You may have a logo, you may have a tagline, but you need to decide on the name of your product or service. You should consider that your trademark is distinctive, both from a legal point of view, and from a marketing point of view. You do not want your product or service to be confused with any others.

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Selfie-Awareness
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Selfie-Awareness | Mark Kaufman

Recently the United States Court of Appeals for the Ninth Circuit made news when it granted appellate review of what rights a monkey has to his intellectual property. The case — Naruto, a crested macaque, by and through his next friends, People For The Ethical Treatment of Animals [PETA], Inc. v. David John Slater, et al. — settled before the appeal was briefed or argued. According to the settlement, the copyright will remain in the name of the human photographer whose camera was used by the animal — but 25% of future profits will go to charity to benefit wildlife preserves that protect macaques. First, some background. In 2008, a nature photographer named David Slater began following a group of crested macaques in Indonesia. On his second day trying to infiltrate a group of the macaques, he set up his camera on a tripod and left it out in the open. One macaque approached the camera and took dozens of pictures, including three “selfies.” Slater began to enjoy some commercial success with the photos when, in 2015, PETA sued him. The group sought a copyright for the monkey and to administer the resulting proceeds of the photo.

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How Can I Protect My Trademark?
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How Can I Protect My Trademark? | Pat Werschulz

People always ask me how they can protect their trademark. You protect your trademark by using your trademark. Now, assuming you’re entitled to use your trademark or brand name, because nobody else is using it for your type of goods or services, the way you develop rights and ownership is by using your trademark by selling goods or providing services. There are three levels of protection that, once you start to use your trademark, you develop your rights in.

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Another Aspect of Design: Trade Dress
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Another Aspect of Design: Trade Dress | Joshua Graubart

{4:30 minutes to read} In my last post, I discussed the design patent, a form of protection available under the Patent Act to protect designs that are “primarily ornamental” rather than those which – like most inventions one normally thinks of in connection with the Patent Act – are “primarily functional.” Design patent protection can coexist simultaneously with copyright protection for the design as a graphic or sculptural work. In addition to patent and copyright law, non-functional designs can also be protected under the federal Trademark Act (also known as the Lanham Act), and under state trademark and unfair competition law. As discussed previously on this blog (see “What is Intellectual Property?”), trademark law serves to protect non-functional features of a product which identify to consumers the product’s source, and distinguish the product from similar products supplied by competitors. Marks are frequently words (e.g., “Nike”) or logos (e.g., the Nike “swoosh”); in certain circumstances, even colors and scents have been registered as marks by the U.S. Patent & Trademark Office.[1] (More on these sorts of outré marks in a future post.)

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Want a Trademark? Make Sure It Doesn’t Already Exist
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Want a Trademark? Make Sure It Doesn’t Already Exist | Pat Werschulz

{Read in 4:40 minutes} So often I am asked, “How do I get a trademark?” There’s a very simple answer. First, you pick what you want as your trademark, and second, use it. Wait a minute. That sounds way too simple. Well, getting rights in a trademark is actually pretty simple. The tough part is actually picking what your trademark is going to be. Whether it’s a name, or what we call a word mark, or design, picking that is very critical. You need to be sure that you can actually use it and that you will not be using somebody else’s trademark.

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Don’t Sweat the Small Stuff
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Don’t Sweat the Small Stuff | Mark Kaufman

In this post, names and circumstances have been changed to obscure the guilty. Let’s say that my client makes plain sweatshirts, and on the back of some of these blank sweatshirts, someone else had printed Alamo-related text and imagery and was selling them. They were doing this on behalf of a local community baseball team that incorporated the word “Alamo” in its design. And let’s say that a plaintiff named Pat files and owns a registration for the trademark in “Remember the Alamo.” Somewhere along the way, Pat catches sight of these sweatshirts and thinks, “Ah, I’ve got them now. They’re a great big sweatshirt company, and I’ll sue them for trademark infringement as well as copyright infringement, because I have a distinctive way that I present the word ‘Alamo’!” (Interesting note: Pat, who represented himself, only provided extremely low-quality pictures of his design in his complaint. I still don’t think anyone knows what his design looks like.)

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Disney v. VidAngel Part 2: The Revenge of the Ninth Circuit
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Disney v. VidAngel Part 2: The Revenge of the Ninth Circuit | Mark Kaufman

In late August, the 9th Circuit in California delivered a blow to a legal argument that was questionable to begin with, and was doomed by the defendant’s eagerness to share it. In Disney v. VidAngel, the culture war served as the background of a battle between content goliaths — Disney, LucasFilm, Twentieth Century Fox, and Warner Brothers — and “David,” a streaming service called VidAngel. VidAngel is no ordinary streaming service; its main selling point is that it removes “objectionable” material from Hollywood feature films in order to make them more suitable for younger viewers, as well as those adults who wish to spare their eyes and ears from certain aspects of the human experience. It should be noted that none of the edits to the movies were made with the permission of the movie studios.

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Trademarks 101: It’s All About the Brand
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Trademarks 101: It’s All About the Brand | Pat Werschulz

Trademarks are so much a part of our culture that we really don’t think about them too much. They’re ubiquitous. If I say a trademark is a brand, everybody knows immediately what I’m talking about, because it’s all about the brand, what the brand stands for, and the message that each brand is trying to convey to the consumer. Technically, a trademark identifies the source of goods or services to the consumer. A trademark can be some words. It could be some sounds. It can be:

  • Words;
  • Sounds;

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Cybersquatter Gets Swatted Down
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Cybersquatter Gets Swatted Down | Mark Kaufman

They said it couldn’t be done, but Kaufman & Kahn recently not only won summary judgment against a prolific cyber-squatter, but also won an award of statutory damages and attorney’s fees. Gregory Ricks, a renowned cyber-squatter, had registered the domain name justbulbs.com, and he’d done that because, frankly, my client named JUST BULBS had failed to renew it. So arbitration was commenced.

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Need Help with a Trademark? Consult a Law Student!
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Need Help with a Trademark? Consult a Law Student! | Pat Werschulz

In the past, we’ve talked about the patent pro Bono program. This program offers assistance to individuals who have inventions that may be patentable, but can’t afford an attorney. It’s sponsored by the United States Patent and Trademark Office (USPTO) and administered locally. Generally, you must have a low income.  You can learn more about that program on the USPTO’s website here. There are several other programs that the USPTO is involved in that are available to those looking for help with intellectual property, but I want to talk about something a little different. You may not be able to afford an attorney, but qualify for pro bono assistance. And that’s where the USPTO’s Law School Clinical Certification Program comes in.

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Pass Go & Collect: How to Patent Board Games
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Pass Go & Collect: How to Patent Board Games | Pat Werschulz

The Story of Monopoly… A patent is a limited monopoly that the government grants for an invention. The government granted inventor Charles Darrow a patent US2026082A on the board game Monopoly in 1935. There’s some controversy about the 1935 patent: Darrow learned about another game called “The Landlords’ Game” that was patented in 1904 by a woman named Elizabeth Phillips. That game was created as an educational tool about monopolies in the landlord/tenant context. Darrow first played The Landlord’s Game in 1933; he changed the game enough to earn a patent on his version, Monopoly, two years later. Monopoly was one of many board games that became popular in the post-Depression 1930s, when people couldn’t afford to go out much.

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Copyright and Patents
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{3:06 minutes to read} As discussed previously, in the United States, copyright and patent law are explicitly anticipated in Article I, section 8, clause 8 of the U.S. Constitution, which accords to Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” It is worth pointing out that the words “science” and “useful arts” were understood somewhat differently in the 18th Century than they might be today. “Science,” in the parlance of the era, had a meaning closer to “knowledge”[1]; the “useful arts” were what we might now call “technology.”[2] Accordingly, the references to “science” and “writings” underpin the present copyright law; the references to “useful arts” and “discoveries” underpin the present patent law.

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Foreign Filing License & Your Filing Receipt
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Foreign Filing License & Your Filing Receipt | Pat Werschulz

Most people who are filing for a patent in the United States don’t even realize that, at the same time, they’re applying for a foreign filing license. What’s that? Well, it turns out that if some or all of the inventive process takes place in the United States, before you can apply for a patent outside of the United States, you must be granted a foreign filing license.

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Hotel California: A Great Song, a Great Title, But a Great Hotel?
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Hotel California: A Great Song, a Great Title, But a Great Hotel? | Mark Kaufman

Here’s the case of a dark, desert highway with, perhaps, a cool wind in your hair:  The Eagles Ltd v. Hotel California of Baja. It concerns a hotel in Mexico that had been opened in the 1950s under the name Hotel California. The owners decided to stop using that name and retitled the property “The Todos Santos Hotel,” catering to American tourists. Recently it was sold again, and the new purchasers went back to using its old name — and proceeded to market it as the “legendary Hotel California.” Promotional literature contained strong allusions that the hotel was the inspiration for the song.

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Brexit’s Effect on European Patents
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Brexit’s Effect on European Patents | Pat Werschulz

It’s official: the United Kingdom is leaving the European Union. While Brexit will have no effect on your U.S. patent (which protects your rights in the United States), as an inventor, you may be curious about how Brexit affects foreign patents, since many U.S. inventors have extended their patents by filing through the European Patent Office (EPO). When you file a patent application with the European Patent Office, that entity examines it against the prior art available and determines what claims are allowed. Up to this point, the process is pretty similar to the patent application process in the United States.

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What’s So Special About Tyler, Texas, Anyway?
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What’s So Special About Tyler, Texas, Anyway? | Pat Werschulz

Most people don’t even know where Tyler, Texas, is, but for patent litigators—that is, attorneys that try patent cases—it has become their home away from home. First, I need to give a little bit of background about the federal court system that a lot of people aren’t aware of. The federal courts have exclusive jurisdiction concerning patent and copyright cases in the United States. What does that mean? If you have a patent or a copyright and somebody infringes, i.e., copies you, you need to go to federal court to get justice. If you file a complaint in state court, it will be dismissed and you’ll be told, “Hey, you knocked on the wrong door. You need to go to federal court.”

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