I came across this post in the Freakonomics blog about how we value “pioneers” or people who make something entirely new and the “tweakers” who take existing works and improve them. Its a good article about an interesting problem because both “pioneers” and “tweakers” make art and technology better, but in different ways.
Trademarks are fickle things. You only have them so long as people know and associate you (and only you) with that trademark. Whether or not you have a registration, your rights exist only exist if that trademark continues to distinguish you from everyone else.
So, if you have found a potential infringer do you have to sue or can you let it slide? The tough answer is that you have to stop them, and here’s why:
If you and your competitor are selling the same or similar goods or services, how will consumers know which is which? Even if your product isn’t exactly the same, consumers might think that you could have expanded your offerings into that area if its not too far off. If someone out there now sells products related to your own with the same name, you have to try to stop them if you want to keep your trademark distinctive.
If the other trademark is a little different, but still sounds the same, means the same, or looks the same as your own trademark and its used on the same product you have to stop them as well. Consider differently spelled trademarks that sound the same. If a customer is telling a friend about your great product, will they be able to hear the difference between “BISCOH Brand Product” and “BIZCO Brand Product,” or “BOSCO Brand Product?” Probably not. The longer those sound a like products are on the market, the less consumers can be expected to consider one the original and the other the knockoff.
Courts have also developed a doctrine called “laches.” That is basically a doctrine considering the fairness of bringing a lawsuit years after you knew or should have known about a legal problem. If you allow your competitor to continue building their market, investing time and money in their own infringing trademark and could have stopped them before they invested all that money, courts aren’t as willing to enforce those trademarks. There is no absolute cutoff point for laches to take effect, but as years go by, the chances you will be able to win your trademark lawsuit get slimmer and slimmer.
A registered trademark gives you a tool to keep competitors at bay, but it wont do it for you. Policing your trademark and occasionally bringing a lawsuit is the only way you can actually keep your trademark. No one is going to stop a competitor from infringing your marks if you don’t. The longer you wait, the less likely it is that you will be able to stop them.
Those disclaimers spoken on Major League Baseball broadcasts, you know:
“Any rebroadcast, retransmission, or account of this game, without the express written consent of Major League Baseball, is prohibited,”
Well, after Fox and Cablevision couldn’t agree and blackouts during the playoffs ensued, the FCC stepped in with Twitter updates of the games in progress. Its not particularly interesting that someone would tweet about baseball games. I’ve checked the #twins hashtag on Twitter during a Twins just to see what other people think of the game. That the FCC would do it, more interesting. I’m fairly certain that MLB won’t sue the FCC, partly because facts, such as what’s the score aren’t copyrightable (not withstanding the “account of this game” language).
H/T to Consumerist
The Librarian of Congress has recommended new exemptions from the prohibition on circumventing digital copy protections including one exemption for “jailbreaking” phones so that you can install your own software.
Another sign that perhaps section 1201 might not be as broadly applied going forward is this recent decision from the Fifth Circuit. That case involved the use of software that controlled uninterruped power supply devices. GE and PMI were accused of copyright infringement and circumvention because they had accessed and used the software which had an already circumvented or compromised dongle. The Fifth Circuit held that GE/PMI’s activities were not otherwise infringing and thus the circumvention was not actionable under section 1201. This seems to be a somewhat different position than that taken in the DeCSS case.
I’m not sure if this is really part of a trend, but it is encouraging for anyone who believed otherwise non-infringing activities should not give rise to a copyright lawsuit merely because a digital lock was circumvented. Section 1201 has been used unsuccessfully in the past to try to prevent competition in the markets for garage door openers and printer ink cartridges.
There’s even a blog about it. I use Yelp! only occasionally but I do rely on reviews on Google and elsewhere. This can be a touchy subject for many small business owners as they can and do find customers through online reviews.I found my barber through those reviews and I know he takes those online reviews pretty seriously. Its also ripe for abuse as small businesses may be tempted to put as many five star reviews up as the can. What this lawsuit alleges though is that Yelp! asked for money to make the bad reviews go away. Yelp! denies this and states that they only remove reviews that they believe are illegitimate.
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