Florida and Federal Trademarks and Service Marks

Florida and Federal Trademarks and Service MarksWhen you register a trademark or service mark, the first thing to decide is if you should register the mark with the Florida State Government, Federal Government, or both. A Florida trademark attorney can assist you in making this decision as well as assist you in applying for the mark.

Although you can establish your right to a trademark or service mark through its use in commerce without registration, owning a federally-registered trademark or service mark can provide you with the following advantages:

-          There is a public notice of your claim to ownership of the mark.
-          There is a legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration.
-          You have the ability to bring forth a lawsuit in Federal court if someone has infringed upon the mark.
-          The federal registration will be useful, should you choose to register your mark in foreign countries.
-          You can record the registration with the U.S. Customs and Border Protection Service to prevent the importation of foreign goods that infringe on the trademark.
-          You will be listed in the United State Patent and Trademark Office’s online databases.
-          If you do not federally register your mark, you may use the “TM” (trademark) or “SM” (service mark) designations. You may only use the “®” symbol after the United States Patent and Trademark Office (USPTO) has registered the mark.

The Federal trademark process is complicated and can take a year, or a few years, to process. Hiring a trademark attorney is recommended, as legal issues may arise throughout the process.

Florida trademarks are less expensive than filing a federal trademark, and they have fewer requirements, but a Florida trademark, or any other state trademark, is superseded by a Federal trademark, if one exists. Florida trademarks allow the owners to bring suit in a Florida court for infringement on the mark.

If you need help registering your Florida or Federal trademark or service mark, contact Boyer Law Firm’s trademark attorneys today. Our litigation attorneys can also assist you in both Florida and Federal court if your mark has been infringed upon.

 

The Copyright Act

The Copyright Act | Copyright Law Attorney | Intellectual Property Lawyer Jacksonville, Orlando, Miami, Florida

Under The Copyright Act of 1976, an owner of a copyright has exclusive reproduction rights, distribution rights, the right to create adaptations (derivative work), the right to prepare new works based on the protected work, and performance and display rights.

The owner may license or sell any of these rights for a profit. It is common for the owner to place certain limitations on how these rights can be used, such as the period of time in which they can be used, the number of times they can be used, the specific location in which the rights may be used, and more.

A good example of this is getting photographs from the internet. If you search Google images, most of those pictures are copyrighted. This is because copyright protection comes into existence when the protected work is created. However, certain photo-bank sites will license, or allow you to use, their photos if you give credit to the site or pay a fee for the pictures.

If you want to register your copyright, are wondering if you may be infringing on somebody’s copyright, or feel that someone is infringing on your copyright, contact Boyer Law Firm today. We can help you to enforce the Copyright Act.

Siri Stores Your Personal Information

Siri stores your personal informationYou’ve probably heard about Siri from Apple, the virtual assistant app that lets you speak your questions. What you may not know is that Siri stores the questions you ask in a database. Siri also collects other information, such as the contacts on your phone, in order to be more efficient. This information is also sent to Apple.

In Apple’s iPhone Software License Agreement, it says: “By using Siri or Dictation, you agree and consent to Apple’s and its subsidiaries’ and agents’ transmission, collection, maintenance, processing, and use of this information, including your voice input and User Data to provide and improve Siri, Dictation and other Apple products and services.”

Apple does not specify where the data is stored, how long the data is stored for, or what “subsidiaries” and “agents” have access to the information.

Because of this, IBM banned its employees from using the software at work.

OZ: The Great and Legal

Sam Raimi, director of the new film “Oz: The Great and Powerful” is being very careful not to infringe on the rights of the 1939 classic movie “The Wizard of Oz,” even though the movie is supposed to be a prequel.

freeimage-1676332He was told that anything unique to the movie that was not in L. Frank Baum’s book series was off-limits, but discussions about what that entailed occurred on-set every day. Raimi told the Huffington Post about wanting to have beautiful rainbows when the wizard first appeared in Oz, but the legal department was afraid people may think he was going “somewhere over the rainbow.”

“I’m like, ‘Oh my God, I can’t even have rainbows in this damn thing,’” Raimi said.

Although many debates occurred regarding what was off-limits, one thing was for sure: the ruby slippers were out. Raimi said he didn’t even ask how much it would cost to be able to incorporate them in the film.

So why is Raimi being so careful? To avoid a lawsuit. Copyright infringement is serious, and the resulting litigation can amount to an exorbitant amount of money. If your copyrighted work has been infringed on, or you want to copyright a piece of intellectual property  you should contact an Intellectual Property attorney today.

Source: Huffington Post

*Image courtesy of Stockfreeimages.com

Twitter Followers: Company or Personal Property?

Twitter followersJim Roberts, one of the top editors at the New York Times, recently quit the Times and the debate ensued as to who owned his 75,000 Twitter followers. Roberts accepted a buyout for the followers, but the issue has still come under debate and speculation.

Twitter followers are a commodity in today’s social-media-obsessed society. One company valued each of its Twitter followers at $2.50, while another valued them at less than $0.01. Either way, followers can still be assessed some kind of monetary value, which causes a debate between companies and employees as to who “owns” them.

If you use a business Twitter account, or are beginning a job where you will surely create one, you should adhere to the following advice from CBS News:

Get it in writing. An employment contract is a standard practice, and a social media clause should be included. It should specifically state who owns your Twitter handle, your followers, and any other accounts you will be contributing to. This goes for other social media sites and blogs as well.

If you are the boss, you should setup a social media policy to be signed by all employees. Social media should be part of the job description for most industries.

Don’t turn over your passwords. If someone else has access to your account, then it is harder to claim that the account is solely yours.

Don’t share your account. If you do, then the account is no longer yours. It becomes a company or community account.

Don’t ask your employees to use their existing accounts. It will be almost impossible to differentiate personal followers from company followers if you do this.

Keep the personal off the account. This should be obvious: Keep your personal life at home. It has no place in the work environment and certainly no place on a public business forum.

Following these procedures can help you avoid a stressful litigation suit in the future.

Source: CBS News

Business Piracy of Intellectual Property

Business piracy is the unauthorized use of intellectual property owned by a business. Business piracy is stealing.

Theft of intellectual property costs businesses in Florida and throughout the United States billions of dollars per year, according to the Federal Bureau of Investigation (FBI). On their website they state that intellectual property theft is the top priority of their cyber program.

Due to the internet, business piracy occurs on an international level, and the lax laws in some countries make it harder to enforce.

business piracyBecause of this, the California Bar Association lists some tips to help businesses prevent business piracy. These tips include:

  1. Employment contracts should have certain provisions to protect your intellectual property
  2. Use strict procedures when dealing with licensing
  3. Keep detailed minutes of all meetings
  4. Keep records of who is privy to the intellectual property
  5. Share the intellectual property with others strictly on a need to know basis

Although you can never be fully protected from business piracy in this day and age, these tips will help minimize the likeliness of it to occur, and if you are pirated, you will have detailed records that will aid you and your attorney in the litigation process.

Sources: CEB Blog ; FBI

*Image courtesy of Stockfreeimages.com

Google Loses Patent Infringement Lawsuit

Patent InfringementGoogle recently lost an infringement lawsuit regarding a patent that most people wouldn’t think of as being intellectual property: a filtering technology that generates online advertising based on search terms.

Vringo, Inc. was awarded over $30 million for Google and four co-defendants’ – AOL Inc., IAC/InterActiveCorp, Target Corporation and Gannett Co Inc. – infringements on their patent since September 2011. The jury also ruled that Google must pay Vringo for future infringements until the patent runs out in 2016. According to Vringo’s lead counsel, Jeffery Sherwood, these future royalties could net Vringo $25-30 million per fiscal quarter.

Intellectual property is any creation of the mind, including the algorithms that filter advertising in this case.

If you have an idea or invention, it is a good idea to register it through a copyright, trademark, or one of the other versions of intellectual property protection because an infringement lawsuit cannot be filed unless the intellectual property is registered.

If you have an existing copyright, trademark, etc. that is being infringed upon, you have the right to sue the offending party and receive royalties. (It may not be $30 million, but you will still be paid for your work.)

Whether you are trying to register your intellectual property or trying to protect it through and infringement lawsuit, it is important to find a good intellectual property lawyer to provide expert guidance every step of the way.

Source: Law.com ; Forbes

Who controls Intellectual Property in the Workplace?

Intellectual Property   A “work made for hire” is a piece of intellectual property created by an employee or independent contractor of a company in which the rights to the property belong to the company, not the author.

There are many things to consider in regards to this law, the first being whether the author was an employee or an independent contractor.

The Supreme Court tried to define an employee in Community for Creative Non-Violence v. Reed. They determined that an individual was an employee if the employer has control over the individual or their work. An individual may also be considered an employee depending on the status of the relationship, such as if the employer withholds taxes from the individual or provides them with benefits.

If the individual is considered an employee and the work was created within the scope of their employment (not on their free time), the rights of the intellectual property belong to the employer.

If the individual is an independent contractor, the rules get more complicated. According to U.S. Copyright Law, a work created by an individual contractor belongs to the company if the work was specially ordered by the company or if the work was commissioned for use as:

- A contribution to a collective work
- Part of a motion picture or other audio-visual work
- A translation
- A supplementary work
- A compilation
- An instructional text
- A test
- Answer material for a test
- An atlas

The work is also the property of the company if the parties expressly agree in a signed written contract that the work will be a work made for hire.

Source: U.S. Copyright Office

Photo courtesy of Stockfreeimages.com

Digital Assets Are Part of Florida Estate Planning

Digital Assets are Part of Estate PlanningWhen most people think of Estate planning, they think of packing up a house and dividing assets such as jewelry, baseball cards, and family heirlooms. These are all important things to think about, but in today’s age of technology, there is a whole other area of assets to include in your estate plan: Digital Assets.

Digital Assets include:

-          Usernames and Passwords (Including cell phone passwords)

-          Online bank, investment, brokerage, credit card, loan and insurance accounts.

-          Online retirement plans and stock options

-          Online bill payments

-          Social Media accounts (Facebook, Twitter)

-          Online retail accounts (E-bay, Netflix, iTunes)

-          Blogs, websites, domain names

-          Photo-hosting accounts (PhotoBucket, Flickr)

-          Emails

-          Online Payment accounts (PayPal)

-          Airline or other sites that offer rewards such as frequent flyer miles

-          Online gaming accounts (People build up characters, and many items accumulated during the process, such as a sword, can sell on E-bay for large amounts of money.)

-          Finished or unfinished intellectual property (such a book)

-          “Digital Wallet” products (Starbucks app that allows you to pre-pay for your coffee)

The list goes on if you own a small business.

Digital assets are a fairly new aspect of estate planning, and, as a result, many of the laws can be confusing and vary by state. For example, Yahoo references in their terms of service “no right of survivorship and non-transferability,” meaning Yahoo will not give out the account holder’s password or other information in the case of their death. This can make accessing other digital assets difficult because email accounts often allow access to other online services. (Ex: Forgot your password? We’ll send you an email.)

When planning your estate, be sure to speak with your lawyer about your digital assets. As technology increases, digital assets are becoming increasingly valuable and important.

*Photo courtesy of Stockfreeimages.com

How To Avoid Infringing on Someone Else’s Trademark

It is important when thinking about trademarking your business, logo, product or any other trademark-able item, that you make sure you do not infringe on someone else’s trademark.

There are some simple steps to take to protect yourself from the costly mistakes of infringement. Four simple steps that Boyer Law Firm recommends are as follows:

1. Search the USPTO Federal Database,
2. Conduct a detailed internet search of the item desired to trademark,
3. Begin to use the item desired, as this will create trademark rights, and
4. Call Boyer Law Firm, as we can help guide and protect you when filing your trademark.

 

Why You Need an Attorney to Help Protect Your Intellectual Property

With the recent news of PIPA (Protection of Intellectual Property Act) and SIPA (Stop Internet Piracy Act) being shelved by the United States Congress, many people may wonder what they can do to protect their intellectual property.

Whether you are creating new products or improving on inventions from years past, having an attorney help with your contracts can help. With the America Invents Act of 2011 having been passed last year, the United States has moved from a first to invent to a first to file system. This means that if you file your invention first, it is legally your intellectual property, even if someone else may have had the idea before you. So, what do you do once you have a patent? That depends on what you wish to do with your intellectual property.

Whether you want to license your property to companies or websites for sale or distribution, or you want to put your intellectual property out in public for others to improve upon, there are different things you can do. If you want to license your property, an attorney can help you decide if it would be more beneficial to have an exclusive or nonexclusive license, an end-user license agreement, and, if it applies, whether the license should include a right to modify the source code. Some of these very basic issues with intellectual property licensing can be tricky and that is why an attorney should be contacted, especially to help draft or review an intellectual property license.

Many holders of intellectual property may not be aware of such terms as “most favored nation” clauses. A most favored nation clause is used to ensure that the person obtaining the right to use intellectual property through a nonexclusive license will be able to get the same treatment as others that obtain a license to the same intellectual property. Such clauses can also be retroactive, which means that the current license will receive the same payment rate as any license in the past that has a lesser payment rate. If you are thinking about licensing your intellectual property or entering any other type of contract, please contact the Boyer Law Firm today. We will work our hardest to ensure you receive the best possible result for your business.

Online Protests Force Congress to Rethink Bills

Congress put two controversial bills on the shelf last week. The Stop Online Piracy Act (“SOPA”) and Protect IP Act (“PIPA”) received a lot of attention from the public. Over 13 million people made their voices heard, mostly online, and forced Congress to halt any votes planned for the two bills.

Many people viewed the bills as a restriction on the right to free speech and an obstruction to obtaining information online. The problem with many of the targeted websites and the information they allow visitors to obtain is that some of the information, programs, etc., that they have is not theirs and violates United States copyright laws.

On the other hand, many see the bills resulting from politicians attempting to keep campaign money flowing into their campaigns from certain companies; you scratch my back, I will scratch your back approach. Whether the bills came about because politicians genuinely want to protect the IP of people and companies, or because large campaign donors pressed them, something does need to be done to protect the IP of individuals, companies, and the United States government.

If Congress is able to rework the bills so they are less restrictive on internet users and still provide sufficient protection to holders of IP, then they may pass with relatively little public opposition. However, that remains to be seen. If Congress passes similar bills in the future, expect some changes to your internet experience.

Information or this article can be found at http://www.pcworld.com/businesscenter/article/248 586/sopa_and_pipa_what_went_wrong.html

The International Trademark

Are you wondering how to get your slogan or logo trademarked internationally? Well Boyer Law Firm can help. There are different ways an international trademark can be applied for:

1. Through the U.S. Trademark and Patent Office,

2. Through the desired country directly, and

3. Through an 3rd party company.

A trademark is a name, symbol, design or logo which is used when goods are traded to indicate the source of those goods. A trademark distinguishes one good from another. For the purposes of this article, I will use the Mickey Mouse character to better illustrate the differences between a trademark and copyright. The Mickey Mouse character has been trademarked as a design of Disney. Using the character to sell goods would be an infringement of the trademark. If you are interested in protecting a title, slogan, or other short word phrase, a trademark is better suited for your needs.

When filing an international trademark application in the U.S., “the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks — the Madrid Protocol — is one of two treaties comprising the Madrid System for international registration of trademarks.  The protocol is a filing treaty and not a substantive harmonization treaty.  It provides a cost-effective and efficient way for trademark holders — individuals and businesses — to ensure protection for their marks in multiple countries through the filing of one application with a single office, in one language, with one set of fees, in one currency.” While an International Registration may be issued, it remains the right of each country or contracting party designated for protection to determine whether or not protection for a mark may be granted.  Once the trademark office in a designated country grants protection, the mark is protected in that country just as if that office had registered it.  The Madrid Protocol also simplifies the subsequent management of the mark, since a simple, single procedural step serves to record subsequent changes in ownership or in the name or address of the holder with World Intellectual Property Organization’s International Bureau.  The International Bureau administers the Madrid System and coordinates the transmittal of requests for protection, renewals and other relevant documentation to all members.

At Boyer Law Firm, we help you trademark your logo or slogan internationally with the convenience and ease of knowing you are following the right guidelines and requirements.

Boyer Law Successfully obtains Trademark (more specifically a service mark) for Client

We are pleased to announce that Boyer Law successfully obtained a U.S. and FL Trademark approval for our Client. Client T wanted to set up a personalized attraction tour and then wanted to trademark the attraction tour logo rapidly. Since the client’s service mark was specific in nature we had to make sure that we carefully tailored the package for the trademark for its approval.

A service mark is a trademark used to identify a service rather than a product. They can be very beneficial because one’s own unique design of a service or logo cannot be replicated without permission once it is service marked.

We first set up Clients Corporation and then Client began his service tour. Since the trademark process is very rule specific we collected and drafted all materials necessary to file a U.S. Trademark and FL Trademark as quickly as possible. We were successful by getting Clients logo trademarked both under the U.S and FL Trademark division.

Shall you need help with a trademark, copyright, service mark issue, please do not hesitate to contact us.

What you can do to maintain your attorney-client privilege!

The attorney-client privilege is a sacred thing. It provides protection to the matters you discuss with your attorney that relate to your case. However, there are ways that you as the client can break the attorney-client privilege that can be detrimental to your case.

It is important for a client to be candid with their attorney so that the attorney can develop a strategy that will best help the client. This means that communication between the attorney and client is highly encouraged. Whether the communication is on the phone, in person, or via text or email, there are certain things as a client that you must be aware of in order to protect your attorney-client privilege.

When speaking with your attorney on the phone, make sure that no one is around or listening to your conversation. If a third party is near you and you are aware that they can hear your conversation, you are essentially offering information to that third party that is not involved in your case. Doing so can dissolve the attorney-client privilege regarding whatever you say during such a conversation. The same applies to speaking with your attorney in person; if for example, you are meeting with your attorney in a public setting.

Another thing to be aware of is use of communication mediums that are owned or monitored by your employer. Many employers that provide cell phones to their employees have access to text messages through the business’ account. It is wise not to use your work phone to communicate with your attorney. That same applies even more so to use of your work email. Emails can and will be saved by your employer on their server for some amount of time and because your employer has control over those emails, you may have broken the attorney-client privilege regarding any information that you share with your attorney through those emails.

The attorney-client privilege is important because it protects the information you share with your attorney from being uncovered by the attorney representing the other party in your case. Because it works to protect the information you share as a client, it is doubly important because in doing so it allows a client to be forthcoming and truthful about all matters related to the case.

Copyright v. Trademark: What’s the Difference?

Everyone has heard of something being copyrighted or trademarked. However, people often use these terms synonymously when in fact they mean very different things and have very different implications. Although I explain the difference between a trademark and copyright, most of my focus is on explaining a copyright.

Let us begin with defining a trademark. A trademark is a name, symbol, design or logo which is used when goods are traded to indicate the source of those goods. A trademark distinguishes one good from another. For the purposes of this article, I will use the Mickey Mouse character to better illustrate the differences between a trademark and copyright. The Mickey Mouse character has been trademarked as a design of Disney. Using the character to sell goods would be an infringement of the trademark.

If you are interested in protecting a title, slogan, or other short word phrase, a trademark is better suited for your needs. Copyright law does not protect a bare phrase, slogan, or trade name. For example, Nike’s slogan “Just Do It” would need to be trademarked in order to be protected.

A copyright, on the other hand, is a form of protection to the authors or creators of original works of music, art, literature, motion pictures and even architectural works. Ideas, procedures, processes are NOT eligible for copyright protection. A copyright is distinct from a trademark in that a copyright is a tangible form of expression. The Copyright Act of 1976 allows the owner of the copyright to reproduce the work, distribute copies of the work, perform the work (piece of music), and display the work (art). Let’s look at Mickey Mouse’s character. Mickey Mouse has been copyrighted as a cartoon character and one would infringe the copyright by using the character of Mickey Mouse is one’s own cartoons.

It is important to remember that a copyright protects a form of expression, not the subject matter of the work. For example, if Steven Spielberg made a movie about aliens invading the Earth in 2525, that particularly movie and the text of the movie would be copyrighted. James Cameron can just as easily make his own movie with original text about the exact same subject matter.

A work is copyrighted at the very moment it is created. No registration is required to secure a copyright, however, there are advantages in registering a copyright. One of the advantages is that the copyright becomes part of public records. Another advantage is that an infringement suit can only be filed with a court once the work is registered.

Furthermore, using trademarked or copyrighted names, symbols, logos or artistic work would not lead to an infringement of the trademark or copyright if one receives the author’s consent or permission.

If you are interested in trademarking an item or creating a copyright, please contact Boyer Law Firm, and we will be happy to assist.

It is Important to get your Word, Phrase, Symbol or Design trademarked

A trademark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.
When you file a trademark registration application the examining attorney will review the application and may issue refusals based on the Trademark Act of 1946, 15 U.S.C. §1051 et seq., or the Trademark Rules of Practice, 37 C.F.R. Part 2.

The most common reasons for refusing registration are because the mark is:
•    Likely to cause confusion with a mark in a registration or prior application;
•    Descriptive for the goods/services;
•    A geographic term;
•    A surname;
•    Ornamental as applied to the goods.

The examining attorney may also issue requirements concerning, for example:
•    The goods and services listed in the application;
•    The description of the mark;
•    The quality of the drawing;
•    The specimens.

In short, a trademark is a brand name. A trademark includes any word, name, symbol, device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.

A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.

Not all trademarks must be registered, but federal registration has several advantages, including a notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.
If you have a trademark issue, please contact Boyer Law Firm today and we will be happy to assist you in either trademarking your logo or discussing other possible options.