Intellectual Property Legal Questions

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

I'm not familar with that site and cannot find clear evidence that it is a scam. I would agree it sounds fishy. http://www.justanswer.com/intellectual-property-law/4mq3e-e-mail-isp-saying-copyrightsettlements-com.html   http://dietrolldie.com/2012/06/12/ceg-monetization-church-of-the-bootyism-2/   Sorry I can't offer more. Todd... Read More

You want to ask the question in Civil Litigation. I have never dealt with any issue remotely similar to this one and it definitely does not relate to intellectual property. My recollection from law school is that the law has a hard time making sense of gifts. That said, the law normally looks at who possesses a good and then tries to determine if that person either came by the good wrongly or owed it to someone else. If he wants the car back, his argument may be that he bought it for you to use, he did not buy it for you to have.  In that case, you will need to show that he intended for you to take ownership of the vehicle and not simply use and maintain it. The registration is strong evidence in that regard. Try someone with experience in civil litigation for a more knowledgeable response.... Read More

You ask a lot of questions Donna. I gave this answer to a friend earlier this week and to another Q&A visitor earlier today. 17 USC 201(b) states: In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. The employer can show that a work is made for hire by establishing that it was (1) created by an employee (2) acting within the scope of the employment relationship. 17 U.S.C.A. Sec. 101  In this wonderfully outdated use of language, if you are an employee, you are a servant: http://elephantcircle.net/wp-content/uploads/2011/10/restatement-second-of-agency.pdf. Look specifically at Section 228. 17 USC 201(b) and that Section 228 define are the foundation of your answers. A presentation can be copyrightable. And labor law as well as any contract between you and your employer may color how this situation is analyzed. Answers to these questions require fact specific analysis and probably means talking to an attorney if you do not feel comfortable doing the analysis on your own. Good luck, Todd... Read More

'Creating a link' doesn't sound significant/difficult. I think of a link as a URL. In the future, you may want to lead with "I created a dashboard." Assuming the dashboard required the development of some software code, you may have copyright protection over your work. Copyright protection for works related to employment require work for hire analysis. 17 USC 201(b) states: In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, [the employer] owns all of the rights comprised in the copyright. The employer can show that a work is made for hire by establishing that it was (1) created by an employee (2) acting within the scope of the employment relationship. 17 U.S.C.A. Sec. 101  In this wonderfully outdated use of language, you are a servant: http://elephantcircle.net/wp-content/uploads/2011/10/restatement-second-of-agency.pdf. Look specifically at Section 228. 228 sets out three factors in determining if the work was created within the scope of employment. The analysis requires a further understanding of your situation and cannot be done for free, but this is where I would look to understand this matter. Also, a labor law attorney may have an understanding of labor laws that would also come into play.... Read More

First of all, a law student is just a student, and what the student who is learning the law states, cannot be assumed to be correct. First, there is no trademark registration for the mark "exile grfx" and the trademarks for "grfx" have been abandoned. Also, there are a large number of trademark registrations for the word "exile", by itself or in combination with other terms. The class that goods/services are registered in is dictated by what they are, not what you choose to put them in, and merely being in another class would not necessarily mean that use of the mark would not be confusingly similar to use of of a mark by another that is registered in a different class. You really should consult with a trademark attorney, not a law student, to have your situation evaluated.... Read More

I can't speak to EU law. In the United States, titles are not easy to trademark. In order to be eligible for trademark, the title must develop secondary meaning. Few works achieve secondary meaning such that they become eligible for trademark. As an example, "Little Mermaid" is only registered for theme park services and greeting cards, not for books/movies/entertainment services. No one registers the title of a sequel where the sequel title is the parent title with a '2' at the end. "Toy Story" has 15 registrations right now, but Disney never filed for "Toy Story 2" or "Toy Story 3".  ... Read More

Trademarks operate as source identifiers. If you use a title that makes people think your podcast is originating from a different source and the owner of the product wants to come after you, you could have an issue.  Put another way, if you start a Fun with Flags podcast and people visit thinking it might be provided by the producers of Big Bang Theory, the producers of Big Bang Theory could shut you down.  The Wizard of Oz owners are a great example of this. Anyone who ever tries to adopt a trademark using a Wizard of Oz reference gets a cease and desist letter and will eventually get sued if they persist.  They guard the elements of that movie zealously.... Read More

It is legal to buy a product, repackage it, and sell it. Under patents, the legal right is defined by the Exhaustion doctrine. Under trademarks and copyrights, the legal right is defined by the First Sale doctrine. You can read about either on Wikipedia, which will give you a better sense of whether these doctrines apply to your situation. Without knowing all of the facts of your situation, I cannot tell you if there is something else you are doing that may not be legal. Similarly, I am not sure if 'fuel cleaning products' have any special regulations regarding sales, so the answer is limited to saying the manufacturer of the existing fuel cleaning product would not have any legal action against you once you bought the product from it. Good luck, Todd... Read More

Have you filed the application? Frequently, people do not determine their is a similar mark of concern until their trademark application is rejected by an examining Trademark Attorney. If that is your situation, I would encourage you to call the examining Trademark Attorney and speak with him/her. By and large, they are helpful, informative, and interested in resolving the matter expediently. If there is a straightforward way to modify the application to achieve allowance, they will make the suggestion to you. If you have not yet filed, the central issue is always likelihood of confusion. Will consumers become confused that your business and their business are related? You want to modify your mark and or what you are selling sufficiently so that it is unlikely a consumer would be confused about a relationship between your businesses.... Read More

Trademarks are based on the use of words, images, etc. to identify the source of the product. Infringement occures when someone else is using a similar enough word, image, etc. to sell their products to lead consumers to believe their products are originating with you. Likelihood of confusion (infringement) analysis requires an analysis of the similarity of the goods being sold and the distinctiveness of the mark, amongh other factors. You have not identified the product you are selling or the product they are selling. The trademark DELTA, for instance, can be used by multiple companies to sell various products without creating confusion in the marketplace. MICROSOFT cannot be used the same way. You have not provided enough information to elicit a yes or no answer, but I would suggest you have disclosed enough that it would warrant a visit to a local IP attorney that offers free consultations to get their thoughts with the facts you are hesitant to disclose here. ... Read More

Here is the tough part of these types of free Q&A's. When I give advice on these sites, I create legal liability for myself. If you rely on my advice to your detriment, you could come up with an action against me, you could complain to my state bar, etc. To answer this question effectively requires reviewing material you had on your website and considering whether your site is doing something permissable or is doing something violating a right of Tumblr.  Even if the site was still up, that takes significant, uncompensated time to create self-liability. Most attorneys gravitate to the cupcake questions. I'm more adventurous than most (IMHO), but I need to set limits. Here is an article discussing a parody of Kickstarter: http://www.theguardian.com/world/us-news-blog/2012/jun/20/kony-2012-group-lawsuit-parody  I would suggest looking up other articles that include 'fair use' 'website' 'parody' and 'lawsuit' to better understand the issues at play. You might also check with the local law schools and see if any have an IP clinic that would be able to give you advice and information on the cheap. At the end of the day, if you can't afford help, then you probably should submit to Tumblr's demands. I don't know anything about the fine, but I would ask Tumblr to identify the statute so that you can understand what they are talking about.... Read More

If a company owns a copyright in a work and you use that work without permission, you have violated their copyright. Even after the work has been taken down, the offense has been committed. They can file a complaint in court to collect damages from the offense. To collect, they will need to have a registered copyright on the work. I would ask for the registration number of the work, which you can then verify through the US Copyright Office at copyright.gov. If they have registered in advance of your offense, they will have the possibility to sue for statutory damages (which could easily be $780) plus their attorney fees.... Read More

I experienced something like this 7-8 years ago. We had an employment link on our web site, identifying that we were open to lateral hires and the qualifications needed for a lateral hire. Then we started receiving communications from folks who had found the add on a job listing aggregation site, one focused on legal jobs. I have never looked into whether copying and reposting these job listings is legal. Copyright protection requires a work with a modicum of creativity. The brevity and functionality of most job postings should not meet that criteria, although the bar has been set so low that it has been debated whether phonebook listings have a modicum of creativity. All I can offer here is that it is a debatable issue. More to the point, I think the question becomes, "what is the harm?" To get statutory damages, someone will need to have registered their copyright with the Copyright Office (only discussing US law here) within 3 months of the job posting. Someone who is aware of your site and wants to stop you, could post a creative job ad, wait for you to copy it, and register it in a timely manner to pursue an infringement action against you that could be worth 4-5 figures (my guesstimate, not the limit of the law). You may also have a fair use defense, as the posting is factually and not intended to compete with the job offeror. But why? Anyone posting an ad is trying to get it distributed to individuals looking for employment. Your site would promote their interests. Litigation is a hassle. If no one takes offense, then you'd be safe. If someone does take offense and you immediately take down their ad and promise not to post their ads in the future, they would likely be satisfied. I can't give you legal advice or legal conclusions because I haven't looked at the issue on point, but these are my thoughts on the subject.... Read More

That is the idea. The basic concept is that, if the open source software creators are making their work non-proprietary, they want your uses to be non-proprietary as well. You'd have to review the full terms of the license to determine what, if anything, the software creators did wish to control as proprietary, but the quoted language cuts a broad swath.... Read More

Not intellectual property. IP is copyrights, patents, trademarks.  You want commercial litigation. That said, the fair settlement is the cost to replace the destroyed items plus the diminished value of the damaged items. What would the cost be to buy a comparably used leather coach and grill?  They should have insurance that pays for damaged property that will happen from time to time in that line of work. Proper settlement has nothing to do with the fee you paid for them to move you.  If replacement of the destroyed goods is $800, then that can be a fair settlement. If they don't want to resolve this with you fairly, you should take this issue to small claims court with photos of the damaged goods and, if possible, photos of the goods prior to the damage.... Read More

It will probably cost you more to fight about it.  That said, there are folks in the news getting in trouble for shaking down Internet users with faulty claims of copyright infringement. http://arstechnica.com/tech-policy/2013/11/another-judge-sends-prenda-porn-trolls-to-the-us-attorney/... Read More