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By Paul
There are a number of sources of free legal documents and free or cheap legal document generators online. This is overall good news and should not in any way be a real threat to attorneys. But people often confuse a document for a solution to a legal problem. In order for the document to be useful, it has to say what you want it to say. You have to know what it is you want to accomplish with this document. Knowing when a document works requires a skill that a document generator cannot provide.
Software programmers would not insert any old code to try to accomplish a specific task. It takes a fair amount of skill to determine if source code can be reused from one program in another without causing problems. Blindly copying legal documents is not any different. If the document doesn’t do exactly what you want it to do, you might be in a worse situation. But like programmers, attorneys do reuse “code” and free and readily available documents help to do that. The “code” is on legal documents is English (sometimes barely recognizable). But the danger for the do-it-yourselfer is not knowing or not caring what the legal code on that document means.
For example, Legalzoom offers incorporation and trademark registration services. But Legalzoom doesn’t offer any advice on what kind of application to file, whether its necessary to file, how to get value from that piece of paper or how to make sure your newly formed company actually complies with state law. They basically guide you through the form and check spelling, which at any price is pretty expensive. A better value would be to buy a book by Nolo Press (which are for the most part really good) and gain enough understanding to do it yourself; or save up your money and hire an attorney. For both corporations and trademarks, obtaining the piece of paper is only a small fraction of the work. If you ignore the rest (compliance, usage etc.), the paper is worthless. Paper is cheap. Know-how costs extra.
Nevertheless, there are things that make sense to do yourself and not hire an attorney. For my own clients, if there are things that are routine, I may offer to advise them on a strategy and propose a form or policy that they can reuse. I also might suggest having them draft a document and then simply have me review it for potential problems. I would rather see them save some money on legal fees now and still be in business years later to hire me for matters that might demand more attention. The value in hiring an attorney is not to have access to a paper dispenser, but to have access to advice.
By Paul
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.
By Paul
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 colbernation.com.
By Paul
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 murderking.com . 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.
By Paul
The movie Blade Runner is based on the novel Do Androids Dream of Electric Sheep? written by Philip K. Dick. The androids or replicants in question were Nexus-6 series. I am still confused how a phone, however awesome, is going to evolve into a sophisticated killing machine in only five more revisions. In all seriousness, it is a difficult case to make that brands of fictional products in novels automatically have any trademark protection. As a side note, I believe Google’s use of DROID is under a license from Lucasfilms.
Link to the Wall Street Journal story.
Hat tip to the always interesting boingboing.net
By Paul
From the William Mitchell alumni website:
David Kappos, undersecretary of commerce and director of the U.S. Patent & Trademark Office is coming to William Mitchell College of Law to discuss his vision for the USPTO. Save the date.Tuesday, April 6, 20104:30 pmWilliam Mitchell’s Auditorium The event is free and open to the public. Seating is limited
Here is the link to register.
By Paul
Great post by John Ottavianni on Eric Goldman’s Technology and Marketing Blog recaps some of the more consequential developments in cyberlaw this past year.
By Paul
Google, Yahoo! and others offer advertising services that can pluck words from a web page to create customized advertisements. Contextual Advertising as its called, is a really cool feature but there are some potential problems that companies considering online advertising campaigns should consider.
1. They can make you look bad.
See this Business Insider story about the worst Google Ads ever. The ad in question appeared with a news story about terrorists and offered a Terrorist Certification program. Probably not what the advertiser had in mind. I hope. This isn’t necessarily a legal problem, but it can be embarrassing and costly to correct. If you are using an algorithm to create your ads, you need to be aware of what that algorithm could create as output.
2. It could violate privacy laws
AOL was recently sued for its contextual advertising program because it was allegedly gathering private information in order to better target the ads. Many times the information gathered by these services are not tied back to any one particular user, but it is something to be aware of. Wired magazine recently ran an article about how easy it becomes to identify someone just by collecting a few facts. Zip code, employer, car model. . . none of these would identify you by themselves, but put a few of them together and very quickly you can have an individual identified.
3. It could be trademark infringement
Keyword based advertising is big business for search engines like Yahoo! and Google. Its also been a hot topic in trademark law. If you select a trademark to trigger your advertising, you could be infringing. Its even more certain that you would be infringing if you have that trademark appear in the text of your ad. Just about any word could be a trademark so context is important.
4. It could be false advertising
False advertising laws vary from state to state but can include anything that creates a misunderstanding with a consumer. If your ads are designed to grab words from web pages be sure you offer goods or services that you are now claiming to offer.
Contextual Advertising is a powerful tool and I think we will see much more of it rather than less. But like any powerful tool it should be handled carefully.
By Paul
It is true that you can legally protect a trademark the moment you start using it. So why go for the extra effort to get a federal registration? Here are a few reasons:
1. Increased Certainty. Once registered, you can be relatively certain that you actually have a trademark. If you are relying on common law rights only, you may not actually have something that can be protected. It may be too generic, or already in use or have a number of other problems that will prevent you from actually enforcing it.
2. Automatic protection in all 50 states. If you don’t register, you only have a trademark in the areas you are using it. If you are in Minnesota and only sell in the upper Midwest, you may not be able to stop a competitor in California.
3. Customs enforcement. Once registered, you can record your trademark with US Customs who can monitor imports for infringing goods.
4. Monetary damages. Though they are not frequently awarded, it is possible to get damages based on the profits made by infringing goods.
5. It puts others on notice. Records at the U.S Patent & Trademark Office are public. Courts will assume that anyone using a similar name had known or should have known about your trademark.
6. You can more easily stop cybersquatters. If a domain name is registered that is infringing your name, one of the things you will have to establish is that you have trademark rights. Registration is not required, but it will be much more difficult to either in arbitration or in court without one. Same goes for search keywords, adwords, etc.
7. You have an asset to borrow against. Nearly every business needs to borrow money at some time. It is easier to do so if you have assets to use as collateral. A bank can much more easily obtain a security interest in a registered trademark.
8. ®espect. This one is a bit vague, but a company that knows and uses its legal rights signals to the world that it should be taken seriously. Trademark registration is one small piece of that, but its an important one.
