California Intellectual Property Legal Questions

This is a classic situation that underscores the need to have written agreements. Of course you never need one until a dispute arises, but once a dispute arises, there is no substitute. Here you have a situation where each party's rights are unclear. Did you get a license to use the pictures on your website? Did the photographer get the right to use your likeness for any purposes? No one knows for sure, and if you use them and the judge disagrees with you, you could be infringing his copyright in his photographs. Get a written agreement next time BEFORE the photoshoot. ... Read More

You should get authorization before you use anyone's brands in your products. You could be accused of trademark infringement, unfair competition and unfair trade practices, at a minimum. You would lose all the profits you made and could be liable for damages to them and their attorney's fees. ... Read More

"Work made for hire" is a commonly misunderstood aspect of copyright law. A creative work can be a work made for hire if it is (1) a work prepared by an employee within the scope of his or her employment or (2) a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer, or commissioning party, is considered to be the author. Further, a work made for hire must be a work specially ordered or commissioned for use as a contribution to a collective work; as a part of a motion picture or other audiovisual work; as a translation, as a supplementary work; as a compilation; as an instructional text; as a test; as answer material for a test; or as an atlas, and in those cases the parties have to expressly agree in a written instrument signed by them that the work is a work made for hire. Choreography is not listed and so it is probably not a work made for hire. The only way that you could use the work without the dance teacher's permission is if the creator assigned the rights to you, or else you had a written agreement with the dance teacher.... Read More

The law of trademark applies, among other things, to business names. As a general matter, the test of whether your name will be infringing is whether an appreciable number of ordinary consumers of the other company's goods or services will be confused into believing that your services originate or are sponsored by them. This is an intensely fact-based determination. Accordingly, it is impossible to give a categorical answer to your question from the limited facts posted. You should consult with an attorney before deciding how to name your business.... Read More

It is nearly impossible to tell based on these facts alone. People have rights from having others use their likeness/image/name etc. for commercial uses by other people. It would depend if people who read the book would believe you are referring to the celebrity. You should get an opinion from someone who looks at your book. ... Read More

Almost certainly that would be an infringement if you did that without permission of the artist or the owner of the other copyrights in the music and video. There are a number of copyrights implicated in this situation, from the written music and lyrics to the sound recording to the video performers and choreography. ... Read More

If you are selling real BATMAN products, you can use the name to describe what you are selling.  It would be unfair competition for you to capitalize on the BATMAN trademark to make money.  You cannot simply use it to capitalize on another's investment of time, energy and resources to develop the brand.  However, if you are using the mark to describe an attribute of a product you are selling, you may be entitled to use it under the fair use doctrine.  The fair use doctrine forbids a trademark owner from maintaining a descriptive term for exclusive use and preventing others from describing a characteristic of their goods.  You can use it where there is no descriptive substitute to describe what you are selling. ... Read More

Movie Posters and Album covers have Tradmarks displayed on them and Copyrighted works of expression.  As a result, it would be infringment to copy them, unless there is a fair use.  Fair use is reserved for analysis, comment, or some type of transformative work.  It doesn't appear that you are using them for an educational or analytical purpose.  It also doesn't appear that you are making a comment, or anything that would be protected by the First Amendment.  Simple copying is not transformative - so no - it does not appear to be fair use without more information.... Read More

There are 2 ways for someone to have your domain name transferred to them: the Uniform Dispute Resolution Procedure (UDRP) through ICANN or an action under the Anticybersqatting Consumer Protection Act ("ACPA") of 1999, 15 U.S.C. § 1125(d) of the Lanham Act, for cyperpiracy. In either case, they must show that you registered the domain name "in bad faith," which can be demonstrated in a number of different ways. For example, the following actions show bad faith: efforts to divert consumers from an authorized site; offers to sell the domain to third parties apart from an ongoing business; registration of multiple well-known domain names which are confusingly similar to famous marks; and use of false or misleading "contact" information in registering the domain name. Factors that show a lack of bad faith include your prior lawful use in offering goods or services, including "fair use" to identify genuine goods or for comparative advertising purposes. If you legitimately are selling their product that uses that trademark and they are profiting from the sale, then your registration of the domain name may not have been done in "bad faith."However, always keep in mind that regardless of whether you may ultimately win on that argument, that doesn't mean that a company might not still try to take the domain name from you.... Read More

Unfortunately, if your idea cannot be patented, it is difficult if not impossible to protect an idea. Copyright protects the expression of an idea and trademark protects a word, name, symbol or device that is used to distinguish the source of goods or services from those of others. You can ask the  business to sign a nondisclosure agreement (NDA) but the NDA will likely exclude from protection anything that the business already knew. Also, businesses often will not sign NDAs because they don't want to risk being sued for stealing your idea. Probably the best way to protect your idea is to register the copyright in your expression of the idea before you disclose it. That way, if the business "substantially copies" your idea, you may have a copyright claim. Other than that, your best bet is to convince the company that you have a way of carrying out your marketing idea more efficiently and profitably than they can. ... Read More

You should post this question for answer by a criminal law attorney or a tort law attorney not an intellectual property law attorney. You need to know whether a particular disclaimer would protect you against criminal liability or liability to a bike owner should your video be used to commit a theft.... Read More

With extremely limited exceptions, works of authorship created by the U.S. government are not subject to copyright. There exists the possibility that the maps were created by a private party who owns the copyright, but that seems unlikely. If you are in doubt about your right to use the maps, ask the Park Service for permission.... Read More

U.S. trademark rights are based upon use and a trademark registration is subject to cancelation based upon prior use up until it achieves incontestible status as a result of 5 years of continuous and exclusive use.  If by a few years, you mean less than 5, your registration is certainly capable of being canceled based upon prior use by another. Cancelation proceedings can be very expensive.... Read More

While there may be other legal issues such as trespass involved, you may have a claim under the relevant trade secret law. Trade secrets are protected by state law, so you would have to find out that law in the state where this occurred. A trade secret is confidential information that is not generally known or readily ascertainable; which has value because it is not known to competitors; and which is the subject of reasonable efforts to maintain its secrecy. Some ideas cannot be trade secrets if they don't meet all of these requirements. For example, a bicycle seat design could not be a trade secret if the design is readily ascertainable once someone sees it, without having to misappropriate it. The other issue that you need to check is the statute of limitations. If the statute of limitations has passed since the theft occurred, you can't bring a legal action. Statutes of limitation are up to each state. If you can still bring a legal action because the statute of limitations has not passed and the stolen product ideas are trade secrets under your state law, then you will have to prove that they were taken by improper means, or misappropriated. If you can prove misappropriation, then you can ask to be awarded damages. However, once the genie is out of the bottle, you can't put it back in even if you win in court. ... Read More

It depends on the express terms of the confidential disclosure agreement you sign. You need to read the agreement carefully. If you do not wish to be precluded from listing this work as one of your accomplishments in your resume or advertising materials, you should negotiate for that right specifically.... Read More

David, Generally, to patent an invention the invention must be novel, unobvious and useful.  This does not automatically exclude an invention that is a new and unobvious use of an existing technology.  So the answer to your question is yes, it is possible to patent a new application for a known technology.  After a sufficient disclosure of your invention to a trained patent attorney, they should be able to give you a good idea of whether your idea is patentable subject matter.  Many patent attorneys will provide this counsel without charge. This information should not be considered legal advice for your specific circumstances and are offered only as general information on the topic of your question.  This should not be relied upon as legal advice and you should note that Sills Cummis and Gross does not represent you until you have signed a retainer letter from us. Philip Braginsky Sills Cummis and Gross http://www.sillscummis.com/practice/practice_group.asp?id=28... Read More