California Intellectual Property Legal Questions

There is no action in the US for plagiarism. The nearest useful civil claims are copyright infringement, fraud, and misappropriation, depending on the facts involved in the plagiarism. It is possible to seek profits obtained by the wrongful act and/or actual damages you suffered and can prove (not easy in these types of situations). Residency/citizenship outside the US should not impact your ability to seek damages, although there may be some countries with whom the US does not have complete legal reciprocity. You may wish to seek representation from counsel in the same state as one of your plagiarists or the HQ of the plagiarizing journal to minimize jurisdictional hassle. Good luck, Todd... Read More

Register the copyright for your work product at www.copyright.gov. You can complete the form on your own and it only costs about $40. If you register the work within 3 months of creation and/or before they steal it, you can seek statutory damages and attorney fees. That's a hammer. The alternative is getting paid before you present the work. Good luck, Todd... Read More

The standardized exams are protected under copyright law. Whether you are copying the questions verbatim or making your own based on the questions is not unlike copying the music exactly or making your own music based on someone else's, your actions can still result in copyright infringement. Whether you publish the questions online or just to a select group of students, whether you operate for free or for profits, these are choices that could impact a fair use defense. Before you get yourself in trouble, you may want to speak with a copyright attorney and have them review a sample of exactly what you intend to do so that you can calculate your risk. Good luck, Todd... Read More

First, if the other company has a lower serial number than yours, then they filed their application first. The fact that it did not appear in the USPTO online system does not mean that it was not already on file since there is a delay before newly filed applications reach the system. However, who filed first is not the key issue since the US is a first to use, not a first to file, system. Thus, if your date of first use (assuming you did not file an intent-to-use application) is earlier than the other company's date of first use, if any yet, then you would have priority over the other company. Not mentioned by you is whether or not the other company has filed for the same goods and/or services as you have. If not and the goods/services are unrelated, it is possible that mark could be registered to both of you.... Read More

First, were any of the 15 cases sold in CA? If not, the CA court lacks jurisdication to decide the case and you could probably get it dismissed. However, the cost of a court action over 14 cases makes it rediculous for either of you to go to court over this. If I were you, if you haven't already, I would send their attorney a letter telling him/her the facts of were you acquired the cases, how few you sold, and how you did not know the cases were fakes along with agreeing to purchase the plaintiff's case only through legitimate sources in the future, requesting a list of source for genuine goods, and include a check for the proceeds of your sales of the 15 cases. I am sure that they will agree to dismiss the case if you do. However, if the date for answering the Complaint is falling due soon, you should respond filing an answer stating that jurisdication and venue are improper and denying all of the assertions in the Complaint other than those which correctly identify you or your company.... Read More

If you own the registration to copyrighted music and someone is infringing, the next step is to meet with an IP litigator. You should find someone relatively close to where you live or, in the very least, in your state, to represent you. You should be able to find someone who will meet with you for a free consultation to discuss what you have and how they can help you. Good luck, Todd... Read More

Trademark infringement is about consumer confusion and, specifically, about consumers being confused about your relationship with the trademark owner. If you use the name Ford in a manner that suggests your website is owned or licensed by Ford, you will have an infringement issue. If you use the name Ford in a manner that indicates you are selling new or used Ford vehicles without any relationship to the manufacturer, you should not have any infringement issues. It is helpful to you, in this type of venture, that consumers recognize vehicles are regularly sold by individuals without relationships with the manufacturer because expectations can be part of the confusion issue. Good luck, Todd... Read More

When you say, "be protected", we're talking about trademark infringement. The government does not have distinct rules or any type of 'fair use' exception related to ornamental use. All we are discussing is trademark infringement. So the question is, if the same mark were repeated over and over around the entire shirt, would consumers be confused into believing the shirt originated with the owner of the trademark. If it is likely that they would, you have trademark infringement. Much of this is subjective. One jury could find one way with regard to using a sports team logo and another jury could find differently when a Monsanto logo is used. If the ornamental use is not complimentary to the logo (e.g., a Red Sox logo urinating on a Yankee logo), a consumer is less likely to believe the shirt originated with the logo owner. No confusion, no infringement, no protection. Any time you are considering using someone else's logo, you should also consider copyright implications. Good luck, Todd... Read More

You should not use anyone else's photos unless you have permission.  Photos will be protected by copyright and owned by the person who created them, unless they have been assigned to another person or entity.  The fact that the photos were found on the Internet is not relevant.  They are still protected under copyright law.... Read More

There are two basic ways to reply to this letter. One response is to apologize for the misunderstanding and change your mark.  If you are complying, you should not have difficulty ending the matter amicably. The other way to reply is to politely disagree and explain the basis for your difference of opinion. If you disagree and the attorney thinks you are blowing smoke, he/she may file suit. Otherwise, they may rebut and the communication may continue until you reach a common position or they file suit. There is no form to responding. Trademark infringement litigation is normally unprofitable. The cost of litigating exceeds the damages the courts are willing to award in most instances. Trademark owners (and their counsel) are often more patient and easier to work with as a result. Good luck, Todd... Read More

The "can I be sued questions" always get me because you are asking a question with too low a bar. You can be sued fairly easily without doing anything wrong. Online articles are protected by copyrights, just as articles in the morning paper are protected by copyrights. If you display the entire article on your page, you could be sued for copyright infringement. More likely, the online newspaper will send you one or more cease and desist letters. If you comply, they are unlikely to sue you. If you persist, then they may sue. Litigation is expensive and carries risk and most businesses do not dive into it spontaneously. The better way to display the articles is a headline, a fraction of the article, and a link to the article. If you are a source of a traffic for the online newspaper more than an alternative destination for readers, they are not likely to want you to desist and you may coexist amicably. Good luck, Todd... Read More

Copying someone's written work (assuming the work exceeds the low bar of creativity required for copyrighted works) is copyright infringement. Copying someone's written work and modifying it is called a 'derivative work' and can be copyright infringement. Undertaking that action puts you at risk for being sued for copyright infringement.... Read More

If the name brand product has no copyright, trademark, or patent protection, and you do not have any separate contractual relations with the name brand company, you should be fine. Otherwise, those IP assets need to be evaluated relative to the product you are copying to answer your question properly. Good luck, Todd... Read More

In a copyright application, the work you submit is the protected work. If you submit multiple songs, you are protected for the compilation.  There is tangible benefit to submit for each individual song. Similarly, you could submit lyrics/composition under TX form, as SR form will only protect that medium. Keep in mind, if I transcribe and sell the lyrics I hear in your sound recording, that would be infringement of the sound recording copyright.  The concern is, the more you pack into a filing, the easier it is for someone to copy a small percentage of the work and have the court find noninfringement or fair use because such a small percentage of the work was copied. You can go to copyright.gov and see how well known artists protect their work. There is nothing wrong with seeing what they do and copying their process.  Granted they have deep pockets, but copyright protection is sufficiently inexpensive that the fee should not be a barrier to sound protection (pun intended). Good luck, Todd... Read More

In the US, the inventor is the owner of the patent rights to the invention. Ownership may only be conveyed by a signed writing. If you have not executed any documents to assign to your employer the invention, you may be able to stop your employer and the employers' customers from using the product without your authorization (a license). The employer may have shop rights in the invention (Look up Shop Rights for patents on Wikipedia). You would still have bargaining power in that you could permit others to use the technology whereas your employer cannot transfer the shop right.... Read More

Whether or not you need approval is not defined by whether the NFL has a licensing agreement for this category of goods. If you are using NFL trademarks or copyrights, you want clear, written permission to sell your goods before you proceed.  Anything less, and you will likely be shutdown by the NFL as soon as they get wind of your business and you will suffer a net loss in the process.... Read More

I am not sure what you mean by "events that happened in a documentary". You could mean: 1) historical events that were revealed in a documentary (eg, in Lincoln, the 15 Amendment was passed in Congress); 2) story telling in the documentary (eg, most of Daniel Day Lewis's lines were not actual quotes, but the creative work of the screenwriters); or 3) making of the documentary information (eg, how Daniel Day Lewis prepared to play President Lincoln). I'll do my best to hit all 3. 1. Facts are facts and cannot be copyright protected or otherwise possessed as someone's IP in the US (famous speeches can be copyright protected). If a documentary revealed a fact, you can use that fact in your own work, but you should endeavor to avoid using any creative elements sewn about the fact by the documentary producers. 2. Even documentaries have creative, artistic elements. These elements are protected just as strongly as they would be in a fictional work. It may not be legal to copy a creative event within a documentary (I say 'may' because a definitive answer would require clearer facts). The best way to confirm something is a fact is show that you came by the information from two independent sources. 3. Now we're getting back into facts and you can use facts without permission. Depending on the facts you use, you do want to make sure your source is solid and your recounting is accurate to avoid libel. Good luck, Todd... Read More

Cookbooks are very hard to protect. Book ideas are very hard to protect, although I suspect California may be the best state in which to have this issue.  If you shared the idea with a nondisclosure agreement and the cook used it, you might have a claim for misappropriation and for breach of contract.... Read More