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Did You Know: Open Source Software (“OSS”) Is a Major Player in Software Development & Use

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The open source software (“OSS”) revolution affects most software applications. A 2015 survey found that 78% of the companies questioned ran their operations on OSS.[1]/  Its expanded inclusion has resulted in great savings in time and money in the creation of software products.  However, when the creator of the OSS releases it, she often does so under a license expected to promote its open availability and use. In order to avoid risks of violating the creator’s licensed conditions, business owners and developers should know whether any OSS is present and under what terms it may be used.

Working with an intellectual property attorney familiar with the issues associated with open source software, developers and businesses can better manage their security, legal and operational risks by:

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USPTO TO INCREASE TRADEMARK FILING AND OTHER FEES

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Trademark application

On May 27, 2016, the United States Patent and Trademark Office (“USPTO”) published in the Federal Register a Notice of Proposed Rulemaking to adjust trademark fees [Notice].  If all goes as planned, the fee adjustments will be effective in January 2017.  Because many of the adjustments are fee increases, those planning to file an application for trademark registration may want to act sooner rather than later.

As you may know, the USPTO largely relies on self-funding to pay for trademark related operations.  This means that ideally those who use the various services provided by the Trademark Office pay for those services.  Because the overall goal is to achieve aggregate cost recovery, periodically, fees must be adjusted to match projected expenses.  The USPTO summarizes the objectives for the rulemaking as: Continue reading

Redskins Eye Supreme Court to Overturn Trademark Disparagement Restriction

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To update my earlier blog [Blog] concerning whether Section 2 (a) of the Lanham Act, 1946, which restricts federal registration of trademarks  found to be scandalous or disparaging, will withstand challenges to its constitutionality, the Redskins football team has raised the ante by its unusual petition to the Supreme Court.

In the petition, the Redskins suggests that the Supreme Court not consider the constitutionality of Section 2 (a) until after the team’s appeal of an adverse District Court ruling is decided by the U.S. Court of Appeals for the Fourth Circuit.  Continue reading

LED ZEPPELIN TO DEFEND “STAIRWAY TO HEAVEN”

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guitarLed Zeppelin, Robert Plant and Jimmy Page remain defendants in a copyright infringement case brought on behalf of the estate of guitarist Randy California.  If the case moves forward, the trial is set for May 10, 2016.   The California estate alleges that important parts of “Stairway to Heaven” were based on music from the song “Taurus” written and performed by California.

Check out NPR’s recent take on the case as it allows you to hear and decide for yourself whether “Stairway to Heaven” plagiarized “Taurus.”  [NPR Story]
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DISPARAGEMENT ISSUE IS FRONT & CENTER FOR USPTO TRADEMARK REGISTRATIONS

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Push pin on trademark textSection 2 (a) of the Lanham Act, 1946, 15 U.S.C. Sec. 2 (a), which restricts the registration of trademarks found by the USPTO to be scandalous or disparaging, was determined to be unconstitutional on the basis of the First Amendment by  the Court of Appeals for the Federal Circuit in a case (In re Simon Shiao Tam-2014-1203), brought by “The Slants,” an Asian-American rock band.  [Background]

Mr. Simon Shiao Tam, as the owner of the mark, filed in 2011 a registration application for  “The Slants” (Serial No. 85-472044).  The USPTO examiner rejected the application on the basis that the applied for mark was disparaging under Section 2 (a)  because the word had a long history of being used in a derogatory way for people of Asian decent.  The examining attorney believed that people of Asian decent would take offense from the use of the applied for mark.  The rejection was upheld by the Trademark Trial and Appeal Board (TTAB.) Continue reading

THE POWER OF LOGOS AND COLOR

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In a recent blog, Larry Bodine, a web and marketing guru, offers great advice to business owners when choosing the “look” of their logo/trademark. He provides information as to how some large companies came to adopt their famous marks, their investment expenses along with examples of  famous logo faux pas.  Larry’s blog re-enforces a message I have offered [Earlier Blog] as to how important it is to select your logo/trademark with care. [See Also]

WHY ARE THE SAN DIEGO CHARGERS TAKING PRE-EMPTIVE ACTION TO PROTECT THEIR RIGHTS IN FUTURE TRADEMARKS?

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Football Play Strategy Drawn Out On A Chalk BoardThe football world is abuzz with the possible relocation of the San Diego Chargers to Los Angeles. Background for Team Move.  While the outcome of where the Chargers end up is of short term interest, the more interesting question business owners should ask is: Why did the team file “intent to use” applications  Section 1(b), Lanham Act for federal registration of two possible marks with the United States Patent and Trademark Office (“USPTO”)? 1/  The answer is that the Chargers want to block others from hindering their future adoption of the new marks if the relocation happens.

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WHO OWNS THE COPYRIGHT IN A FILM?

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Because many creative people participate in the making of an artistic, documentary or commercial film, in order to exploit the film efficiently, it is critical to pinpoint who owns the copyright in the finished work as well as in the raw footage.

Congress recognized that an unwieldy situation could arise with respect to the control of a film’s copyright unless there was a way for all copyright interests to reside with a single owner. This is because if a non-employee of the producer made a creative contribution during a film’s production, such contribution could be viewed as copyright protected. To address the problem, Congress adopted a mechanism in the Copyright Act of 1976 (the “Act”) which treats any such contribution as a work-made-for-hire (“WMFH”) [WMFH Described] if the parties so agree in a signed document. Under such circumstances, all copyright rights in any creative contributions belong to a single owner, most likely the producer.

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Can You Learn Anything from Monster Energy’s Run-In with the Beastie Boys?

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Energy drink can on white background

The dispute that led to the legal battle between the Beastie Boys band and Monster Energy Company (“Monster”), involved Monster’s use without permission of songs by the Beastie Boys and verbal references to the band and a member, Adam Yauch, in a promotional video. Monster’s negligible music licensing procedures were strongly criticized by the trial judge. The one-sided victory of the Beastie Boys for copyright infringement and false endorsement has led to Monster being found financially liable for its misjudgment.

In an earlier blog [Justin Bieber et al], I considered the misuse by one musician of the works of another. The Beastie Boy’s case gives guidance to business owners who wish to incorporate the intellectual property of others in their marketing and other creative endeavors with impunity.

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