Trademark – in a stylized font Reply

A trademark or logo can include an original font.ImageAgentProxyFor example, COCA-COLA (in a stylized font) is a famous registered trademark that includes an original font. Note that the COCA-COLA Company has registered COCA-COLA as a trademark with and without the stylized font. There are legal advantages to having registrations for a word trademark with and without a stylized font.

  • An advantage to registering the COCA-COLA trademark with a stylized font is that copycat brands can be prevented from using the typeface in a trademark to sell goods and services.
  • An advantage to registering the COCA-COLA trademark without a stylized font is that the trademark owner is granted rights to protect the text element of the trademark in any font.  Another advantage to registering a trademark without a stylized font is that it grants a level of domain protection.

A key to including a font or stylized lettering in a trademark is originality of the font or stylized lettering.  In addition to originality, other factors to consider when assessing whether to apply for USPTO registration of a trademark in a specific font or stylized letter are:

  • How instrumental the font or stylized lettering is to the brand, andIMG_2903
  • How long the specific font or stylized lettering will be used.  Back to the example of COCA-COLA, the famous trademark in stylized script has been used by the company as a trademark since 1886. (U.S. Reg. No. 0022406).

By: Vanessa Kaster, Esq. LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: Blog posts on use the TM & SM symbols on unregistered trademarks at: https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/trademarks-tm-sm; USPTO (U.S. Patent & Trademark Office) resources at www.uspto.gov; @iplegalfreebies and www.kasterlegal.com

 

 

CITYSTICKS & POPSICLE tale of two trademarks Reply

CITYSTICK picCITYSTICKS & POPSICLE are two different trademarks for tasty frozen treats.  These two trademarks are owed by two different companies and are both registered with the USPTO.  USPTO trademark registration grants the owner of each trademark exclusive rights to use the registered trademark when selling, advertising and promoting their frozen treats.  This means that the words CITYSTICKS & POPSICLE are off limits to any other person or company selling frozen treats.  For example, if another person or company uses either of the trademarks to sell or advertise competitive goods without permission of the trademark owner they may be infringing the trademark and might be asked by the owner to stop using the trademark (i.e. to cease and desist from infringing the trademark).

POPSICLE is the older of these two trademarks and it’s no coincidence that the CITYSTICKS packaging pictured to the left and below does not use the trademarked term POPSICLE.  Instead the packaging reads, “ice pops with personalities.”  (As you can see, I quickly ate half the CITYSTICKS ice pop before I thought to photograph it for this post.  It was tasty).CITYSTICKS USPTO screen shot

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: more on the POPSICLE trademark and protecting exclusive trademark rights  at http://wp.me/p10nNq-3t, other posts on exclusive trademark rights at https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/trademark-exclusive/; USPTO (U.S. Patent & Trademark Office) resources at www.uspto.gov; #trademark, #branding, #valueyourbrand @iplegalfreebies and www.kasterlegal.com

Inspired by 19th Century Imperial Robes (Copyright & Design) Reply

Splendid 19th century imperial robes from China inspire modern fashion reddesigns in a new costume exhibit at the Metropolitan Museum of Art (titled: China Through the Looking Glass).  A fascinating element of this exhibit is that the imperial robes and the modern, couture gowns are displayed side-by-side.  While the styles, silhouettes and lines of the old and new fashions are drastically different, the inspiration linking the old and new is clear, including, borrowed colors, designs and artwork.

Borrowing colors, designs and artwork isn’t always free and easy.  Copyright laws in countries around the world vest the original creators and owners of designs and artwork with a bundle of exclusive rights to control the use and copying of their original designs and artwork.  However, these exclusive rights only last for a finite period of time. The duration of these exclusive rights varies country by country depending upon the national copyright laws.  The copyright laws in each country outline the length of time that the exclusive rights last (also known as the “term of copyright”).  Once the term of copyright expires, the work becomes part of the public domain and is free to use and copy.

Treat yourself to a visit of this exhibit, if you can. I give it two glamorous thumbs up.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: other blog posts on public domain at http://wp.me/p10nNq-ft and www.iplegalfreebies.wordpress.com/category/public-domain; a blog post on Traditional Knowledge of indigenous people and tribes which can be an exception to public domain works at http://wp.me/p10nNq-AC; information about the MET costume exhibit at http://www.metmuseum.org/exhibitions/listings/2015/china-through-the-looking-glass/images; @iplegalfreebies and www.kasterlegal.com.

 

Female Watson: Great for many reasons including Copyright Reply

WatsonFabulous, smart, strong, witty, problem solving female characters are always great.  Recently, Hollywood has been recasting some traditionally male characters like Watson (from Sir Arthur Conan Doyle’s famous Sherlock Holmes stories) as women.  Additionally, Hollywood has been developing new central characters from the Doyle’s classics.  For example, Watson’s wife (barely mentioned or developed in Doyle’s Sherlock Holmes stories) is becoming a featured charter in the new BBC series based on the literary classic.  Also Lucy Liu is featured as Dr. Joan Watson in Elementary, a new series set in NYC.  This is a great trend for developing new, dynamite leading ladies.

Interestingly, this tend also has potential copyright advantages for the creative folks writing these new leading ladies based on traditionally male roles.  The “copyright advantage” is that creating new original characters by definition creates new character traits, storylines and crime solving adventures which the owners of the new TV series can potentially own, control and monetize to a greater degree than if the stories, characters and adventures are taken from Sir Arthur Conan Doyle’s books.  This is because some of the original story elements and characters from Sir Arthur Conan Doyle’s books and stories, like Holmes and Dr. John Watson, have entered into the public domain and others are still under copyright protection and must be licensed from Doyle’s Estate.  (See this earlier post,  http://wp.me/p10nNq-z8 , for more information on this topic).

I love Lucy Liu as Dr. Joan Watson!  How about a lady Holmes, next?  Holmes

Happy Halloween!

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: earlier blog posts on the topic of “public domain,” https://iplegalfreebies.wordpress.com/category/public-domain/; other copyright and public domain resources, http://www.copyright.gov, http://copyright.cornell.edu/resources/publicdomain.cfm, http://creativecommons.org/publicdomain/; @iplegalfreebies and www.kasterlegal.com.

Can I copyright my website’s content? Reply

Yes – copyright is a form of intellectual property that protects original works of authorship copyrightincluding content on a website. For example, original text, videos, graphics, animation, photographs, music, sound recordings, illustrations, translations and other original content featured on a website can be copyrighted.

Two ways to use copyright to protect original content on a website are: 1) to use a copyright notice on the website, and 2) copyright registration with the U.S. Copyright Office.

A few points to keep in mind regarding copyrighting website content:

  • Using a date range in the copyright notice may be beneficial if new content is posted periodically.  For example, © 2011-2014 Ima Starr.  All rights reserved.
  • An application for copyright registration only covers the original content that is submitted with the application and will not include future updates.
  • If content on the website is updated frequently, it may be a good idea to file new applications for copyright registration periodically, as needed.
  • The author, creator, and owner of the content may or may not be the same person. This is an important component to consider and sort out before applying for copyright registration.
  • If the website features original creative content such as books, music, jewelry designs, photographs, architectural designs, fabric designs, photographs or other original works of authorship it may be a good idea to also register these works with the U.S. Copyright Office before making them available on the website.
  • Note, that copyright does not protect names, logos, titles or slogans. In some cases, these may be protectable as trademarks.

Here are links for more information on how to write a copyright notice, adding a copyright notice to a website and applying for copyright registration with the U.S. Copyright Office.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: U.S. Copyright Office Circular 66 titled, Copyright Registration for Online Works at http://copyright.gov/circs/circ66.pdf and U.S. Copyright Office on “What does copyright protect” at http://copyright.gov/help/faq/faq-protect.html#idea; @iplegalfreebies and www.kasterlegal.com.

Using my photo? Did I inadvertently give rights away by posting it online? Reply

It’s so easy and fun to share photographs online that folks often give away rights to their photographs without even realizing it.  HOW DOES THIS HAPPEN?  The terms, conditions and licenses that the photographer agrees to when posting a photograph to various social media and photo-sharing websites often grant other folks broad rights to use posted photographs.  Keep in mind that every social media and photo-sharing website has different terms, conditions and licenses that are agreed to automatically simply by USING the website and POSTING photographs and other content.  These terms, conditions and licenses are modified and updated frequently.

teen's flicker photo

Photo: Justin Ho-Wee Wong

Here is an interesting and fairly haunting example:  A photograph of a teenager was taken by her youth counselor and posted to his to Flickr account under a broad Creative Commons license that allowed others to use his work in any way, including for commercial purposes, if they credited the photographer. (See the inserted photo).  A slightly edited version of the photograph ended up in an advertising campaign for Virgin Mobil Australia. A lawsuit followed.

THE TAKE AWAY: Read the terms, conditions and licenses that you are agreeing to when using and posting photographs and other content to social media and photo-sharing websites.  Most popular social media and photo-sharing websites, including FACEBOOKPINTEREST and TWITTER have fairly broad terms, conditions and licenses that change frequently.  Websites post their terms, usually at the bottom of the webpage. These same terms that often give other folks broad rights to use posted content,  also contain the steps to follow if your photographs or other content are being used without your permission on the site and you want to request that it be taken down.

This post was inspired by my friend Mel and a host of social media comments about a photograph that ended up on a series of KEEP CALM shirts.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: Articles about the Virgin Mobil example above from the Sydney Morning Herald and The New York Times; photo of a Virgin Mobil Ad; Flickr’s Creative Commons licenses at https://www.flickr.com/creativecommons/; other blog posts on photo copyright at https://iplegalfreebies.wordpress.com/category/copyright-photos; @iplegalfreebies and www.kasterlegal.com.

Trademark: to keep bands called THE SUPREMES from popping up in every State Reply

“Yeah, I know and can appreciate what you do (as a trademark attorney working with musicians). Back in the day, different bands called THE SUPREMES were popping up in every State. You can’t have that.” A jazz musician friend said this to me the other day and it was music to my ears.

from the USPTO online database

from the USPTO online database

This is right on point. For a band like THE SUPREMES, who became the most popular female group of the Sixties, owning the trademark of their name grants the trademark owner (Motown Records and now Motown Records’ successor) the exclusive right to use the name “THE SUPREMES” for various music performance and recording services. [USPTO Reg. No. 1003076]. Owning the trademark rights in the name of your band grants the trademark owner the exclusive right to use the trademarked band name for specific uses – like music performance and recording services. This can be a tool to keep other bands or music groups from performing under the same name or a confusingly similar name without permission of the trademark owner.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: the USPTO TESS data base at http://www.uspto.gov/; a copy of the USPTO Certificate of Trademark Registration for THE SUPREMES, USPTO Reg. No. 1003076; The Supremes bio at http://rockhall.com/inductees/the-supremes/ ; Baby Love on YouTube at http://www.youtube.com/watch?v=23UkIkwy5ZM; @iplegalfreebies and www.kasterlegal.com.

How to use the trademark & copyright symbols: ®, TM, SM, © Reply

The ® Registered Trademark Symbol

Once a trademark is federally registered with the USPTO (US Patent & Trademark Office), the coveted ® symbol can be used. While use of the ® symbol is not required, it is highly recommend. Using the ® symbol lends credibility to a registered mark.  Additionally, it puts potential infringers on notice of the trademark owner’s rights and makes it easier for the trademark owner to collect certain damages in the event someone infringes these rights.

The TM and SM Trademark Symbolsphoto (1)

The TM and SM symbols can be used with an unregistered trademark or service mark to inform the public that a word mark, logo, or design mark is being used as a trademark and that the owner of the mark claims rights to it.  Using either of these symbols gives notice that the mark owner is intentionally establishing ‘common law trademark rights’ in the mark. For example:  MY TRADEMARK ™  or MY SERVICE MARK ℠    (For more information on how to use the TM or SM symbols click here).

The © Copyright Symbol

Another familiar symbol is the  copyright symbol.  Using the © symbol is an easy way to notify the world that copyright exists in your original, creative work.  While it’s not required by law to use the © to establish copyright in a photograph, piece of music or other original work, it’s simple to do and could save you a lot of headache down the road.  Use of the the © copyright symbol does not require permission from, or registration with the US Copyright Office.  (For more information on how to write a © copyright notice click here).

Many creative works may contain both a trademark symbol and a copyright notice.   A website, for example, will often contain the website owner’s trademark (registered or unregistered) and a copyright notice.  A novel may have the publisher’s registered trademark and the author’s copyright notice on it.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: USPTO (US Patent & Trademark Office) resources at www.uspto.gov; www.uspto.gov/trademarks/basics/register.jsp; and www.uspto.gov/faq/trademarks.jsp#_Toc275426682 ; US Copyright Office Circular 3 on Copyright Notice at www.copyright.gov/circs/circ03.pdf; US Copyright Office Circular 1 on Copyright Basics at www.copyright.gov/circs/circ01.pdf; @iplegalfreebies and www.kasterlegal.com.

Vivian Maier- Publishing a newly discovered photo treasure-trove 2

Finding Vivian Maier, is a fascinating, documentary film about a talented street photographer who kept her photographs secret… and was recently discovered when a young entrepreneur purchased boxes of her negatives and undeveloped film on a hunch at auction. This situation raises an interesting copyright scenario; because, Vivian Maier took her photographs from the mid-1950’s-1990’s but they are only now being “published” and made available to the public for viewing, sale and distribution. The “publication” of a work is an element in copyright registration that can often seem mysterious for a first-time copyright registrant. Let’s take a look at the publication element in US copyright registration by using Vivian Maier’s newly discovered photographs as an example.

showing at the IFC in NYC

showing at the IFC in NYC

Here is background on Vivian Maier and her photographs: “Now considered one of the 20th century’s greatest street photographers, Vivian Maier spent her life as a nanny, secretly taking over 100,000 photographs. Hidden during her lifetime, Maier’s work was discovered by pure chance when amateur historian John Maloof ended up with a stash of her photo [negatives] at an auction. Fascinated, he searched for more—and for the story behind the woman. Now, this unsung art- its strange and riveting life and work are revealed through never-before-seen photographs, films and interviews with dozens who thought they knew her.”   [the synopsis of the film, Finding Vivian Maier, as posted on the IFC website at http://www.ifccenter.com/films/finding-vivian-maier/] [the film gets 2 thumbs up].

What is copyright publication?
Publication has a technical meaning in copyright law. According to the statute, “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” Generally, publication occurs on the date on which copies of the work are first distributed to the public. [Quoted from the US Copyright Office website at http://www.copyright.gov/help/faq/faq-definitions.html]

Why is the publication date of a copyrighted work important?  Because, the publication date of a work may impact the duration of copyright protection vested in a work. This is especially true for works, like many of Vivian Maier’s photographs, which were created before January 1, 1978 but only recently published. Here are details on how long copyright protection endures:

  • Copyright Protection for Works Originally Created on or after January 1, 1978.  A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records),the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter. [Excerpt from US Copyright Office, Circular 1 at http://www.copyright.gov/circs/circ01.pdf]
  • Copyright Protection for Works Originally Created Before January 1, 1978, But Not Published or Registered by That Date. These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works is generally computed in the same way as for works created on or after January 1, 1978: the life­plus­70 or 95/120­year terms apply to them as well. (Many of Vivian Maier’s newly discovered and published works likely fall into this category).  [Excerpt from US Copyright Office, Circular 1 at http://www.copyright.gov/circs/circ01.pdf]
  • Copyright Protection for Works Originally Created and Published or Registered before January 1, 1978.  There is quite a bit of variation in copyright terms vested in works created and published before January 1, 1978. The longest term of copyright protection for these works was for 95 years [See page 6 of US Copyright Office, Circular 1 at http://www.copyright.gov/circs/circ01.pdf]

For Vivian Maier’s newly discovered and published works, they will likely benefit from a longer term of copyright protection; since, they have recently been published some twenty to sixty years after they were taken.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: Information about Vivian Maier at http://www.vivianmaier.com/about-vivian-maier/; the US Copyright Office website at http://www.copyright.gov/help/faq/faq-definitions.html; US Copyright Circular 1: Copyright Basics at http://www.copyright.gov/circs/circ01.pdf and http://www.copyright.gov/circs/circ01.pdf#page=3; show times for seeing Finding Vivian Maier at the IFC in NYC at http://www.ifccenter.com/films/finding-vivian-maier/; @iplegalfreebies and www.kasterlegal.com.

Maasai Trademark – Maasai tribe wants control over commercial uses of its name 2

The Maasai tribe in Tanzania has a unique identity, name and culture that various companies use to sell products.maasai  For example, Diane von Furstenberg sold pillows and necklaces using the Maasai name and Jaguar Land Rover sold a limited-edition vehicle named after the tribe.  Presently, the Maasai tribe is seeking control over commercial uses of its name.   Seems fair for the Maasai tribe to share in the profits earned by folks using their name, especially, since the Massai name is used to invoke the integrity, sensibility and style of the tribe members.

Personally, I find the arguments against granting the Maasai tribe ownership rights, trademark rights, and licensing rights to their name offensive.

CLAIM 1 AGAINST THE MAASAI OWNING THEIR NAME: because the tribe has never made an effort to enforce ownership of its culture and name until now, the rights have been lost.

COUNTER THIS CLAIM: To me, this is a rather colonial, imperialistic view of rights and ownership; however, tribes and indigenous people all over the world continually fight against this claim.  In an effort to set a global standard for respecting indigenous peoples’ rights in their names, culture, trademarks, traditional knowledge and other intellectual property, the UN has adopted a Declaration on the Rights of Indigenous Peoples.  It may take a high profile challenge by the Maasai to raise international awareness regarding the rights of tribes and indigenous people to their name, trademarks, customs, traditional knowledge and other intellectual property.

CLAIM 2 AGAINST THE MAASAI OWNING THEIR NAME: “It’s a nice idea, but if it would work, the French deficit would be gone by asking for royalties on French Fries.”

COUNTER TO THIS CLAIM:  A more accurate comparison than the french fry comment (which I don’t believe the French have ever claimed and may not even want) is the French zeal and persistence in successfully laying claims to and defending the right to use the word CHAMPAGNE as a regional indicator of bubbly wine from the Champagne region of France.

Evidently, the Maasai have launched a campaign to reclaim their name, traditional knowledge and other intellectual property so that they can share in the profits made off their name and likeness.  (They also have an attorney and a USPTO grant for support).

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

For more information see, The United Nations Declaration On The Rights Of Indigenous Peoples at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf; WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore at http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_26/wipo_grtkf_ic_26_inf_8.pdf;  article by Stephan Faris in Bloomberg Businessweek magazine titled, For Years, Companies Have Been Making Millions Off The Maasai Name, Now The Tribe Wants Its Cut; @iplegalfreebies and www.kasterlegal.com.