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Archive for October, 2009

Recent trademark registrations

Posted by ipelton on: October 28th, 2009

Here is another sampling of some recent registrations our clients have received from the USPTO, so readers can see real examples of brands and marks which are being protected. (These are all public records – click on trademark name or logo to view USPTO records.)

  • ISLAND EQUITY REAL ESTATEReal estate brokerage
  • PUT IT ON THE NETProviding online advertising services for others; Providing a web site that enables users to post items for sale through on-line classified advertisements
  • MY OTHER SUPERMARKET IS MY GARDENEducational services, namely, conducting informal programs in the fields of sustainable living, organic foods and gardening, homesteading, the environment, and conservation, using on-line activities and interactive exhibits; entertainment services, namely, providing a web site featuring photographs, audio, and video featuring sustainable living, organic foods and gardening, homesteading, the environment, and conservation; on-line journals, namely, blogs featuring sustainable living, organic foods and gardening, homesteading, the environment, and conservation
  • HERBAL ZONKOUT - dietary supplements; herbal supplements

So far in 2009, more than 135 registrations have been received by our clients!

Update: social media influencing trademark disputes

Posted by ipelton on: October 28th, 2009

The “VERMONSTER” beer trademark dispute with the makers of MONSTER energy drink has been settled, allowing the brewer to keep using the VERMONSTER name provided it does not use it with energy drinks.

See article in Burlington Free Press:  ‘Vermonster’ trademark dispute settled

A statement from Rock Art brewery touting the role of social media and the fans here.  As a result of the overwhelming publicity, a senator and the CEO of Monster’s parent company got involved.  And all within the span of about two weeks.

Given the success of the social media tactics in the case, look for others to mimic it in the future.

the future of trademark disputes – using social media?

Posted by ipelton on: October 23rd, 2009

From Mashable…

Social Media Users Rally Behind Vermont Brewery vs Monster Energy Drink

MONSTER energy beverage company sent a cease and desist letter to Rock Art Brewery, who make a VERMONSTER beer, and threaten to Oppose their trademark application with the USPTO. VERMONSTER launched a publicity campaign and has received favorable coverage online.  Accoring to Mashable, they are using twitter, Facebook, YouTube, and other social media to spread their message and rally against MONSTER energy drinks. The Facebook group “Vermonters and Craft Beer Brewers Against Monster” has thousands of members.

Will this publicity affect the strategy of MONSTER energy drink’s owners and lawyers?  Their brand reportedly has $1 billion in sales last year.

(Note – if MONSTER energy drinks are sold in bars and mixed with alcoholic beverages frequently, does that change your opinion of whether the two names are likely to be confused?)

Is this the future of trademark disputes – taking them online to social media to rally the public?  In some ways, the effect could be good for small business owners, helping them level the playing field.  In some ways, it is not good as it the law and the facts can easily be twisted and misconstrued and whether or not 10,000 Facebook fans support you has nothing to do with any legal analysis of whether a trademark infringement exists.

Love it or leave it: BLACKBERRY name and logo

Posted by ipelton on: October 21st, 2009

BlackBerry is of course a well know line of “smart phones” with many devoted users, including myself.  Recently, I have been noticing more and more BlackBerry ads and commercials.  And that made me think more about the name and the logo.

The logo is, I presume, two things: two letter “Bs” and the texture of  a blackberry berry.  To me, it is a bit too abstact. The two “Bs” don’t jump out at me, neither does the berry itself.  Perhaps I’m confused because the Bs are overlapping and one is horizontal while the other is on a slant.  And it is for “Bs” or two “Bs”?

As for the name, “BlackBerry” is completely arbitrary when it comes to phones; in other words its meaning has nothing to do with the product.  Perhaps it is an attempt to be like “Apple” computer.  Reportedly, the name comes because someone thought the keys on the device looked like seeds on a fruit or berry.  (See http://www.canada.com/topics/technology/story.html?id=85473082-02e8-4296-80a8-d8bdd4901496)

The name is not at all suggestive.  So in my opinion it could be better — if you were trying to explain you had a new smart phone to a non-techie, and you told them about your Blackberry, it does not tell them anything about the product (see: ‘iPhone,’ aruably ‘SideKick’ which opens sideways).

From a legal perspective, an arbitrary name such as Blackberry is the strongest kind and the easiest to protect. I credit “BlackBerry” for thinking outside the box and being creative.  I personally think a name is better when there is some connection between the name and the product (other than the keys reminding someone of seeds which is too abstract).  The BlackBerry logo is also, for me, a bit too abstract.

Copyright protection tips

Posted by ipelton on: October 19th, 2009

Copyright protects authors of original works of art. Copyright protection give the owner exclusive rights to the publication and distribution of the work.  To be protectable, a work must be original, and a tangible expression.  A work could be a writing, music, painting, drawing, sculpture, photograph, multimedia, software, film, television or radio broadcast, architecture, or mroe.  An “idea” is not protectable by copyright.  Copyright protection is mentioned in the U.S. constitution.

Copyright protection actually begins the moment and original work is complete and fixed in tangible form; this basic protection is automatic – no filing is required.

“Fair Use” allows someone to use a portion of a copyrighted work, without permission, for certain purposes.  The amount of use permitted depends on the type of use and nature of the work.  As an example, a review of a movie can show a brief clip from the movie.

Copyright tips:

  • Using proper copyright notice helps fend of copiers and enhance your protection in the event of an infringement.  Proper notice (in the U.S.) looks like this:
    • © COPYRIGHT [YEAR] [OWNER].
    • for example:
      • © Copyright 2009. Erik M. Pelton & Associates, PLLC.
  • Set up a free Google alert if you have copyrighted text. Pick a random sentence or phrase from inside our constant and set an alert for the phrase in “quotation” marks. If anyone is copying that phrase completely, which may be an infringement issue, you will be mailed an alert.
  • Register your copyright.  Copyright registration is not mandatory, but is a requirement before suing any infringers.  Given that it is relatively simple and affordable (filing fees vary, but are approximately $40) registration is a good way to help scare off any potential or new infringers – sending a registered cease and desist letter with a copy of an official Library of Congress registration certificate is generally more effective than making a claim without a registration.  Furthermore, a registration is required in order to bring a case in federal court for copyright infringement. For more about registration, see the Library of Congress copyright office website at: http://www.copyright.gov.
  • Common items on which to assert copyright protection: webpages, advertisements, brochures, workbooks, presentation slides,  white papers, newsletters, etc.

Proper copyright notice, along with copyright registration for most things, is fairly straightforward and not complicated.  Registering your copyright enhances the value of asset, and helps formalize its transition to something tangible. which has far greater value that can be transfered, sold, or licenses.  A registration for copyright is valuable because it provides inferences in the event  of any dispute.

Lesson: Copyright registration is a simple way to, in the words of consultant Alan Weiss, “convert intellectual capital (intangible) into intellectual property (tangible).” (http://www.contrarianconsulting.com/how-to-be-perceived-as-a-trusted-advisor/)  The more tangible intellectual property your company creates and owns, the more you can profit from it (licensing, sales, etc.)