Searching for Trademarks

Thanks to Google you can find just about every existing name or trademark that exists with one little tool. . . right? Well, almost. It is possible to use Google and the Patent & Trademark Office’s own database to see if your brand idea is free to use, but there are a number of risks you take by relying on only those tools. Its tempting because the search is free. By all means, use free tools. Use them because they can give a quick “no” answer if there are obvious conflicts. But anyone building a new brand should consider what they might miss and what problems will arise with what they do miss.

Don’t Tweet about the Olympics either!

Story at Wall Street Journal.

The Olympics. . . will sue you!

Video at Colbert Nation

Its true, the Olympics have something of a super-trademark law status. This includes uses outside of athletic events as well. In addition to any rights given under trademark law, the Amateur Sports Act reserves the use of the word “Olympics”, “Olympiad”, “Citius Altius Fortius” as well as anything resembling the rings for the the United States Olympic Committee, and they can be pretty intense in their enforcement. So enjoy “Vancouverage 2010” at

LLC or C-Corp? A New Post at Tech{dot}MN

My latest post compares two of the more common business entities. It is definitely not a full picture of business entities, but I wanted to pick two popular entities that were on different ends of the spectrum for complexity and administrative burden. Minnesota LLCs being on the relatively cheap and easy side, Delaware Corporations requiring a bit more finesse. Both can be good choices, but neither fits in all situations.

Corporate campaign litigation comes to Minnesota

The Minnesota Chamber of Commerce has filed suit to in the wake of Citizens United v. Federal Election Commission. At stake is to what extent the State of Minnesota can continue to regulate corporate expenditures on campaign advertising. Here is the article which includes a link to the complaint.

Trademark Parodies

A post on Duets Blog got me thinking about parodies and trademarks. What is interesting about this area of law is that parodies of brands are commonplace, but on they are given only narrow exemptions within the law.

Take for example the number of gripe websites. This guy rips on Wal-Mart with his “Wal-ocaust” and “Wal-Qaeda” website. PETA has a website that uses the domain name . In fact there is a website that just links to other gripe sites. Gripe sites are typically legal, because the trademarks are used to refer to the company and to comment on that company.

But parodies are often done without any serious criticism in mind. Walk through any mall and there are dozens of spin-offs of well known logos and brands that are misspelled for comic effect. Some are pretty clever too. A quick Google image search for “parody t-shirts” comes up with an “evil” version of the Levi’s logo, an AD/HD version of the band AC/DC’s logo, “Boring” and NASCAR, a Smurf and Simpsons version of the Soprano’s, a variety of versions of the Obama “Hope” logo and more. These parodies are commercial by nature and don’t always seem to be truly offering criticism of the trademark owner, which can cause trouble.

Even where lawsuits have successfully stopped parodies, they seem to persist. For example, a maker of a tee shirt reading “Enjoy Cocaine,” a parody of the iconic Coca-Cola design was successfully sued and ordered to stop making the tee shirts. See Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972). Well over thirty years later, the same design can be found all over the internet.

Its hard to believe that many of these sales are likely to change the public’s perception of the trademark owner or that sales of tee shirts are damaging to their bottom line. Parodies occupy a large part of pop culture, but unfortunately sometimes operate in a gray area of the law.

Who owns your digital life?

I was recently quoted on the Agency Babylon blog about who owns your digital identity. It is an interesting topic and one that many companies and individuals probably haven’t fully considered in their social media policies. My comments were based on discussions with other attorneys on acceptable social media policies. Companies are often want to use social media tools to engage with their customers better, but sites like LinkedIn and Facebook are really designed for individuals so it can be difficult to control. It can also cause problems with data that would otherwise be confidential such as customer and contact lists, because your friends and contacts are at least partially public.

See the article and discussion at:
Thought leaders, issue followers weigh in on who has a stake in your professional digital life

New Post at TECH{dot}MN

My second post at TECH{dot}MN is a quick overview of various employment agreements that can get you into trouble if you ignore them. Anyone starting a new business needs to review what agreements they have signed with their former employer.

More at TECH{dot}MN

Judge Reduces Award in Jammie Thomas-Rasset Filesharing Case

On Friday, the court reduced the damages in the Jammie Thomas-Rasset filesharing case from $80,000 per song to $2,250 per song. The total now stands at $53,000 which is much less than the the jury awarded. Here is what Judge Michael Davis had to say at page 15:

Although Plaintiffs highlight valid reasons that Thomas‐Rasset must pay a statutory damages award, these facts simply cannot justify a $2 million verdict in this case. Thomas‐Rasset was not a business acting for profit. Instead, she was an individual consumer illegally seeking free access to music for her own use. Congress set a high maximum for statutory damages in order to ensure that damages awards could be large enough to outweigh the potential gain from infringing. As the Court noted in its September 2008 Order, in the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer‐to‐peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music.

It will be very interesting to see if this reasoning is applied in future copyright statutory damages rulings.

A copy of the Order can be found at Copyrights and Campaigns

Trade Secrets: The Other Intellectual Property

I have a short article over on TECHdotMN about why new businesses need to have a plan to protect trade secrets.