Oregon Intellectual Property Legal Questions

You can't infringe a patent application.  A patent applcation does not become an enforeceable thing unless and until it issues as a patent. You infringe a patent: if and only if the patent has issued, is valid and enforeceable; and if and only if you practice each and every element of at least one claim in the patent. Was the cease and desist letter from the inventor or from an attorney?  If the letter was from an attorney, I recommend you hire a patent attorney to review the letter and provide you with advice and guidance.  Ask for a quote first.  Sound advice and guidance needn't be terribly expensive, perhaps two billable hours.  Shop around.  Because patent practice is a nationwide practice, you are not limited to attorneys just in your jurisdiction.  Any U.S. registered patent attorney should be able to assist you. If the cease and desist letter was from the inventor or some other non-attorney, while not as urgent, it may nonetheless be prudent to obtain professional advice.... Read More

My thoughts are that it is Nike's intellectual property and they can choose their targets.  It's certainly easier to make a case against a true knock-off than against customizations of legitimately purchased products.  It's actually a completely different case, in general.  The harm from knock-offs is that the consumer is likely to mistake the knock-off for the original product.  The harm in the case of customizations is generally risk of tarnishment and dilution of the established brand.... Read More

Canadian rights are only valid for Canada and US rights are only valid for the US. Thus, you could not use your trademark in Canada and the other company cannot use its in the US. However, rights in the US are based on use, not registration and while you indicate that the other company has been in business longer, you have not indicated whether they have been shipping to the US longer than you have been using your mark. Assuming from the fact that the other company is using your packaging that you started in the US before them, then you could send them a cease and desist. In fact if the packaging is confusingly similar to yours, you might have a claim for unfair business practices and possibly counterfeiting in addition to trademark infringement. More facts are needed to provide a definitive answer and I suggest you contact a trademark attorney to fully evaluate your situation since it exceeds the scope of free service provided by this site.... Read More

If you want to push the envelope, you could register the copyright for your article, then sue the newspaper for copyright infringement and misappropriation. News stories have a fair use defense in many instances, but I don't see any other intellectual property rights that have been violated. You would want to have the copyright registered within 3 months of publication to be able to seek statutory damages and attorney fees. You should discuss the matter with a local copyright/IP attorney who can compare the two articles with you and help you prepare to bring suit if that is the appropriate direction to go. Without seeing the articles, I can't comment on whether you have any rights that have been violated, but this is where I would start thinking about the possibility. Good luck, Todd... Read More

You are correct that if a work is in the public domain, anyone can copy or create their own derivative work based on it. However, you also must steer clear of other people's derivative works to avoid infringing THEIR rights. A good example is the current situation of Disney's remake of the Wizard of Oz titled, "Oz, the Great and Powerful." The Baum book is in the public domain but Warner Bros. still has copyright protection in its 1939 screenplay and film, and recently filed to register the trademark "The Great and Powerful Oz." Warner Bros. is known to enforce its rights in the Oz characters even though the underlying work is in the public domain. You can read more about this at http://www.hollywoodreporter.com/thr-esq/wizard-of-oz-disney-warner-bros-289305. You should consult someone about the details of your proposed work before you start writing.... Read More

Use of a video taken in public without releases from EVERYONE involved is risky. People have a right from preventing their likeness from being used for commercial purposes. State law governs the exact terms of the law, so you would have to consult an attorney in Oregon about whether the individuals shown in the video would have the ability to stop you from using their images.... Read More

It is impossible to give categorical answers to "fair use" questions. The determination is always extremely fact-instensive. The Copyright Act gives the copyright owner (i.e., the owner of the composition copyright) the exclusive right to perform the work publicly. While the limited and non-profit nature of the use made by the girl are factors that tend to favor her, remember that "fair use" looks primarily at the economic injury, if any, to the copyright owner. In this case, for example, we do not know whether the copyright owner regularly licenses the work for public performances such as these and, accordingly, whether those royalties are being avoided through this use. When in doubt, ask for permission. Such permissions are often granted on surprisingly reasonable and favorable terms.... Read More

The actions you are taking may render you not only a direct infringer (since, by writing the code for the web site, you are "copying"), but also a contributory infringer (who enables, or abets, infringement by others). You should not assume that you are immune from liability merely because you are a hired hand in this process. The monetary gain or absence thereof is largely irrelevant to the issue of whether your copying is permitted.... Read More

It is impossible to know whether a particular use will be deemed sufficiently parodic in order to pass muster, and be non-infringing, under Supreme Court interpretations of the Copyright Act, without having both the original and derivative work examined carefully by an experienced copyright attorney. As a general matter, parodies are non-infringing when they meet certain criteria, including that they "summon up" the idea of the original and then make fun of it. These kinds of determinations are always extremely fact-intensive and, as noted above, involve fairly complex application of Supreme Court jurisprudence. Anyone can sue anyone for anything. If you are not prepared to pay defense costs or to obtain formal legal advice before proceeding, perhaps you should desist.... Read More

Attribution to a copyright or trademark owner does NOT exempt you from infringement. While you can use copyrighted material and trademarks to a very limited extent if your use is a "fair use," this is a judgment call and you should consult someone knowledgeable in those areas to give you an opinion based on all of the facts.  ... Read More

Copyright law often involves questions of implied licenses. For example, if I request that you write an advertisement for me (whether or not I pay you to do so), and you write it, then I have the right to use the advertisement in my business. The reason for this result is that you knew what I wanted to do with your work and you provided the work to me for that purpose on a consensual basis. Even though there has been no transfer of ownership of your copyright -- you still own the copyright solely -- I have the right to use this work. The same general principles apply to the work you did on the yearbook. You knew what your work would be used for. You voluntarily provided your work to the school. There was, in essence, an implied contract that the school would have the right to use your work. You still own the copyright. You probably do not have the right to delete the school's copies of your work or to insist that they refrain from publishing it.... Read More