Intellectual Property Legal Questions

The fact the trademark is not registered simply means you would not be liable for Federal trademark infringement. You would likely be liable for 'passing off' and/or other unfair competition laws, which are primarily rooted in state laws because what you propose would make consumers of the brand think you are the same entity as the brand owner. ... Read More

You haven't defined the (termination, liability, criminal charges, etc), so I'll run out the possibilities. The employee could be demoted or fired. Most employment is at-will and does not require cause for demotion or firing. The employee could be held liable for the financial damage. If you aren't paying attention and hit me with your car, a pure accident, you could be liable to me for the injury your accident caused. If a surgeon slips during surgery, a pure accident, the surgeon could be liable to the patient for injury caused. Similarly, an employer could sue the employee for damage caused by the employee's accident. The employee is unlikely to be criminally liable (either by fine or imprisonment) absent extenuating circumstances (high security clearance position, facts calling intention into question, court order protecting the secrecy of the information, etc.). Good luck, Todd... Read More

Hi Christopher, You need to ask why they are making the comparison. There is a concept in copyrights called 'scenes a faire' (look it up in wikipedia). The idea is that there are a limited number of story details and utilizing a similar combination of generic details does not amount to copyright infringement. Captain Marvel or Hyperion do not infringe DC Comic's Superman. Moon Knight does not infringe on Batman. Cheetah/Tigra. Mr. Fantastic/Plasticman. I haven't looked at your page, but if your character is black, a youth, and has an electricity-based power set, you are going to draw a comparison to Static and that doesn't make it copyright infringement. If there is more to it, you might want to develop a few differences because, ultimately, you want your character judged by how you develop him and not through comparisons to other characters. Good luck, Todd... Read More

High school Bachelor's Degree Law Degree   Get the bachelor's degree in a subject you enjoy. Many people will steer you toward English or Political Science. Those subjects may help you get a little bit of a head start preparing for law school, but you are better off studying a subject you enjoy, in which you can get good grades, and stand out a bit with your own identity.  Unless your bachelor's degree lacks credibility, law schools only care about seeing someone who is passionate about what they do. Good luck, Todd  ... Read More

J.M. Barrie's works containing Peter Pan are no longer under copyright protection. Works created and published before 1928 had a shorter copyright life than works created today. Peter Pan works that have come from Disney are under copyright protection. To the extent that Disney contributions have modified elements of Peter Pan or the story, they own copyrights in those modifications. If you create a Peter Pan anything, you will garner the interest of Disney and I expect they will look to see what if any elements of their contributions have been taken by you, giving them grounds for an action. I would also look into any trademarks Disney may own relating to Peter Pan and, particularly, video games.... Read More

Copyright does not just protect against exact copying of a work, it also protects against copying of the work with minor modification. The latter is known in copyright law as derivative works. Turning a book into a movie is regarded as a derivative work and doing so without the permission of the owner of the copyright on the book would be copyright infringement. Similarly, if the sculpture is copyrighted (e.g., the Statute of Liberty copyright has expired), photographing the sculpture can be regarded as creating a derivative work and selling the photograph to profit from the artistic value of the sculpture could get you an infringement suit from the copyright owner. Good luck, Todd... Read More

The short answer is, change the name of your app. The standard for trademark infringement is confusing similarity. If the marks are identical (which you say is the case, both being XYZ) and if your goods are the same type as theirs and as is recited in their trademark registration, i.e., computer software, then your usage is confusingly similar and you are infringing their trademark. Put another way, someone going to an app store and seeing two apps with the same name has a reasonable basis to assume that they are being produced by the same company despite any differences in coloration, type font, etc.... Read More

It would be copyright infringement to copy someone's album to Facebook without the permission of the author or owner of the copyright. The fact someone posted the album on YouTube does not change that equation.  Even if it was legally posted on YouTube, you still cannot copy the album unless you have permission. You may be able to post a link on Facebook to a YouTube site that contains the album. At that point you are not copying the work, you are only providing an online address. If YouTube takes down the album, then the link would be useless. Someone might be able to make the case that by posting the link, you are engaging in contributory infringement, but I have not heard of that argument being made successfully. Good luck, Todd... Read More

In the US, trademark rights flow to those who use the trademark first, but with some important limitations. If you begin using a trademark in the greater Philly area in 2008 and someone files a trademark application to register the same mark for the same goods in 2012, you have superior rights to the mark for the goods with which you were using the mark and in the geographic market you were using as of the day that application was filed.  The 2012 applicant (assuming the trademark registered) has superior rights to the rest of the country. If you branch into new, related products or beyond the greater Philly area, the trademark registrant can sue you for infringement even though you were using it before they trademarked it. They cannot sue you for infringement for selling the goods you've been selling within the greater Philly area. Terms of art used in this type of dispute are "senior user" and "junior user". You would be the senior user with common law trademark rights. You should be able to find online articles using these terms. 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 is nothing wrong with providing a personal biography that includes the names of former employers, even if the names of the former employers are trademarked. There is a problem if you try to use the names of the former employers to imply a quality of the food service. The former might look like this, "Mike was a Disney chef from 2008-2013 at a Walt Disney World Resort." The latter might look like, "Here is your chance to hire your own personal Disney chef."  Good luck, Todd... Read More

It is always possible that using a service like legal zoom your application was poorly done. 'Sport' is a relatively generic term in apparel and arguing about it is unlikely to move the argument in your favor, in my opinion. If Blockbuster were still alive and you tried to register Blockbuster Video Rental, you would have no chance for the same reason. The concern the USPTO has is that casual shoppers who like Kathy F Browns may not remember that name clearly, will see your brand, and think they are just recalling the name incorrectly. Attempting to overcome a likelihood of confusion rejection in this situation is unlikely to yield success (<50% IMO). If you wish to persist, there is a helpful 7th Circuit case that suggests common surnames like Jackson, Smith [or Brown] are sufficiently common that consumers will not be confused to think that two goods bearing the same common surname come from the same source. Search Peaceable Planet Inc. v. Ty Inc. Good luck, Todd  ... Read More

Copyrights are based in works that contain a modicum of creativity. Further, copyrights are not available to protect functional products. While copyrights could be had in the device, it would have to be an ornamental object that is completely unrelated to the function of the device. Think of a lamp with an ornamental statuette joined at its base.  Finally, you would have an argument that the product configuration has been donated to the public because of the patent that issued on the product more than 20 years ago.... 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

If someone is using your copyrighted images (that you own) on Facebook without your permission, you have a copyright infringement suit. Depending on the state laws in Texas, you likely have other causes of action as well relating to identity theft. A successful copyright infringement suit will pay your reasonable attorney fees and statutory damages ranging from $750-$250,000.  You should find someone local to you that specializes in intellectual property litigation and request a consultation.... Read More

USPTO.gov is the site for the United States Patent and Trademark Office. The Trademark portion of the site has a boolean search tool for searching registered, pending, and abandoned trademarks. The tool is not the most user friendly system, but if you can ask a question on lawyers.com, you can probably make use of that search tool. That site also allows you to file a US trademark application online. If you are not comfortable doing either, you can hire a trademark attorney. We typically charge $500 for a basic search and $850 for filing the trademark application (that fee includes the government fee). You might find someone closer to you who can do the work a little cheaper, but those numbers provide a baseline for thinking about what might be reasonable to expect. 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

If you can show that this author is using your name to reach your customers and/or siphon your sales, you may have a case based on a tort with the Unfair Competition family of torts. If the person in Thailand just picked a name at random and it happened to be the name you use, you probably don't have a case (although doing more research may change my analysis). I don't think you would need explicit evidence that this person in Thailand is attempting, but you would want to look at the type of book or market in which they are selling to show that this other author is trying to pass themselves off as you.... 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