When deciding to copyright a particular brand or logo, you should probably be aware of copyright infringement laws–and do your best to avoid them. That’s not what happened when someone decided to put an ice cream brand on the market called “Baby Gaga”. Although copyright infringement lawsuits don’t always get filed, your chances of getting sued increase in proportion with how much the other party doesn’t want their own brand associated with yours.
Baby Gaga ice cream is made using real breast milk, and that was apparently the last straw for Lady Gaga and her legal team, who filed a cease-and-desist letter to the U.K. based brand from “The Licktators”.
Many copyright infringement cases are decided based on the likelihood that one brand will be confused with another. In this case, it’s easy to see how Baby Gaga might confuse people or somehow be associated with Lady Gaga. Whether or not it would irk people is a different story.
Baby Gaga ice cream was put on the market twice. Once in 2011, and then again in 2015 when a “Royal” Baby Gaga edition was released. In 2015, Lady Gaga’s lawyer received a snarky response from representatives to The Licktators, who said that they would send complimentary tubs of the Baby Gaga ice cream to Lady Gaga in the hopes that she would “chill out.”
That wasn’t so different from the response in 2011, when she was told that “she’s acting like a big baby who is crying over spilled breast milk.”
Copyright infringement penalties can range from a measly $200 fine to a larger $150,000 fine and jail time. Legal realities and penalties regarding copyright infringement can become complicated, especially when international borders are crossed during a lawsuit. In this case, it would appear that Lady Gaga’s team decided not to take the matter any further than the cease-and-desist letter.
Royalties are a tricky topic. The general rule of thumb is this: if you were involved in the production of a commercial, episode of TV, song, or book, then you’ll likely be paid royalties whenever those products are shared. Often, those royalties are for life. If that episode of TV airs, then you get paid. If a book you wrote is purchased, then you get paid. However, it’s more complicated for that. The band “The Turtles” recently lost a lawsuit against Sirius XM because Sirius had no licenses and paid no royalties.
Sirius XM had played a song of the band’s that had been recorded before 1972. The Turtles proceeded to file a massive class action lawsuit in Florida, California, and New York on behalf of all artists whose songs recorded before 1972 had been played by Sirius XM. Sirius XM proceeded to pay a settlement of $25 million to the class. A lawyer can only do so much.
That settlement is actually pretty low, considering the scope of the case. Federal Judge Darrin Gayles first settled the case in favor of The Turtles, but members of the band, Flo & Eddie, didn’t stop there. The case went before the U.S. Court of Appeals for the Eleventh Circuit, which then requested additional information so they could make a final ruling.
A 1995 federal law stated that licenses must be obtained for songs recorded from the artists themselves for songs recorded after 1972. Flo & Eddie presented their case based on precedent set forth by a long forgotten 1943 case. Because the case was irrelevant in face of the 1995 law, the justices dismissed it as evidence and the previous ruling was reversed to instead favor Sirius XM.
Even though this case will provide new precedent, copyright still expires after a time. For certain types of works, the rule of thumb is the life of an author plus seventy years when a work was published after 1977. This prevents lawsuits like the aforementioned.
Trademark law doesn’t make the process as easy as you might want it to be. Let’s say you have an idea for something big, something important, something that could make all your wildest dreams come true. You have intellectual property, and you’d like to ensure it remains yours. How do you go about protecting it before you can show it off? Is it even possible? What steps can you take to dissuade others from trying to take what’s yours? These aren’t easy questions, but here are the basics of trademarking your idea, logo, or brand the right way.
The marathon from concept to trademark application to trademark licensing can be excruciating, because believe it or not–people do have the same universal ideas. It doesn’t help that the ideas that get trademarked almost always rely on simple foundations. A common shape, a pair of common colors, or a three word phrase you may have heard a hundred times before without even realizing it. Even though you might fail to get it licensed on the first try, first you need a single concept. If you’re making a logo, make a basic sketch of what you’d like. What kind of symbol are you looking for?
When you’ve answered that question, the next step is looking at the trademarks that already exist. Laws stipulate that you can’t copy someone else’s trademark. That much is obvious. But trademark court can also deny your idea if it can be easily confused with an already existing trademark. Don’t worry too much about that. Even if your first idea fails, you have wiggle room. Adjust a couple of things, and voila–you have a whole new trademark possibility. Because actually sifting through the database of existing trademarks is time-consuming and difficult, you’ll probably want a trademark attorney to help you through the process. It’s worth the financial strain at the end of the day, and you might need this kind of professional later anyway.
Common shapes include circles, squares, or stars. Many trademarked logos use animals–or paw prints for example. When you choose an idea that will likely have already been done a thousand ways already, you need to make it visually dissimilar from all the others. A paw print might face in a different direction, have claws or not, or have a different number of pads, different shapes, and different colors. A lot of clawed paw prints use cats as the animal blueprint, but the University of New Mexico went a different route and used a wolf instead. Take your time and be creative.
Apply for the trademark license as soon as you can. Just because your idea isn’t ready to go to market, that doesn’t mean you shouldn’t be ready with your branding. The longer you wait, the more likely it is that an idea that you had will be stolen. If that happens before you trademark the idea, then you’re out of luck. Once it’s been trademarked, the rules fall firmly in licensed individual’s favor.
Legality regarding copyright infringement can get a little complicated if you’re not familiar with the regulations, but then again most of us don’t need to concern ourselves with those details. The only people who do are those who rely on copyright or trademarking to protect their own products or brands from people who may purposely or accidentally use them. The case of Bowman v. Monsanto was complex, but not too complex that the ruling didn’t make sense.
In the case, Monsanto alleged that Indiana farmer Vernon Hugh Bowman purchased soybean crop seeds which he planted and then replanted after the first harvest. According to Monsanto, the product was sold not as a seed but as a commodity. Bowman had no license to plant the product as a seed, which was under copyright. The Supreme Court ruled in favor of Monsanto, agreeing that Bowman had committed copyright infringement.
The ruling favored the owner of a patented seed by explaining that someone–such as a farmer–can use patented seeds without permission. This might seem obvious, but to farmers it isn’t. Say for example some patented seeds from a neighboring farm spread to your property and start growing. Are you liable for copyright infringement if you then use those seeds to farm on your own land? The ruling says that you are.
Another more complicated situation can develop as well. You may have the patent owner’s permission to use or grow a specific seed, but if that seed or the resulting crop is then modified or engineered to create a new strain for harvest, are you still subject to copyright infringement laws for growing the newer crop? The ruling once again says that you are.
This case was noteworthy for two other reasons: first, the ruling had the potential to force changes in regulatory policy regarding copyright and trademark infringement laws, and to the way farmers conducted business. Second, Justice Clarence Thomas was once a lawyer for Monsanto, raising concerns that his might be a biased opinion. It turned out not to make a difference, since Monsanto won in a unanimous ruling.
At the end of the day, the ruling means this: you can’t take someone else’s copyrighted product, use it to make a somewhat newer product, and claim the newer version as your own. Licensing matters regardless of where you conduct business, whether it be an Indiana or Atlanta. Credit must be due to the original maker, and you’ll be subject to copyright infringement laws if you steal this credit–because the Supreme Court says so.
Here is a video going into some more detail about the case:
If you want to know what direction a company is going, one of the items you can look at is what patents they have recently filed for or received. We all know Google as a tech-giant that revolutionized the internet. Since their conception, the company has been expanding at a rapid pace. They have spread their metaphoric tentacles into spaces you wouldn’t have imagined. One of their latest ideas to come to life was the Google home system. In the past, they have also invested in research and development in autonomous vehicles.
Google’s latest investments have once again been in the auto industry. As we previously stated, we have heard of Google doing research on autonomous cars. Since then, Google has filed for a couple of different patents. Both patents are in regards to user safety in the auto industry.
The first patent Google filed for was in 2016. Google developed a sticky concentration that is designed to be applied to the hood of a vehicle. The idea behind the material is that it will catch pedestrians if they are struck by a vehicle. This technology is necessary because sometimes things happen too quickly for a human, or even a computer, to process.
A year later, Google filed for a second patent. The second patent is for a “crumbling” system that will be installed in vehicles. The rationale behind this patent is to reduce the rate of impact of the collision. In turn, this will reduce the force of impact for passengers of the vehicle. How will the car know to start crumbling? Google’s autonomous cars use top of the line data sensors to learn their surroundings. The sensors on the vehicle will determine when a crash is inevitable, the mass of the object or vehicle you are going to collide with, and initiate the “crumbling” system. This technology can be extremely useful in head on accidents.
Why doesn’t Google just stick to what they know? Google, as any other tech company, wants to keep pushing technology forward. They have the budget to afford the best research and development, so why not try to better the world?
After you make your invention come to life, it is important to protect your idea with a patent. If you do not secure a patent for your the product you invented, other companies can copy with little to no penalty at all. While you can hire a lawyer to take his process off your hands, you do not actually need one to file for a patent. The United States Patent Trademark Office has a specific set of rules, you can follow them and file for a patent on you own. Once you have brought your idea to life, follow the steps below to ensure that your idea is not stolen by a larger competitor.
1.Keep a careful record of your invention
As you are going through the process of bringing your idea to life, it is of utmost importance that you take careful note of the steps you take. You must describe and diagram every aspect of your invention including any modifications and how you came up with the idea of it.
2.Make sure your invention qualifies for patent protection
In order to avoid handing out patents to the masses for every idea that is thought up, you must be able to show that your invention works and is a new idea. Your invention must be unique to previous inventions and it cannot be for sale or known about before you apply for a patent.
3.Asses the commercial potential of your invention
Even if you decide not to hire a patent lawyer, it costs up to $1,500 in in fees to file with the USPTO. It is important to make sure that your invention is one of a kind and that it has a market.
4.Do a thorough patent search
One of the particulars the USPTO will check is if the patent is new or not. You know the most about your invention, therefore, you are the best person to start this research. You will want to search US and foreign patents, as well as scientific and technical journals.
You can use the internet or visit the Patent and Trademark Depository Library to find resources that will assist you in finding inventions similar to yours. On the chance that you find an invention similar to yours, you should make a point in the patent application o indicate how your invention is unique and better than the others.
5.Prepare and file an application with the USPTO
When you have gathered your materials and documents and are ready to file with the UTSPO, there a couple of decisions you will have to make. There are two types of patents, a regular patent application (RPA) or a provisional patent application (PPA).
Provisional Patent Application (PPA): Filing for a PPA allows you to claim patent pending status for the invention and involves less work and a lower cost than a RPA. What will you need to file for a provisional patent application?
The catch here is that you MUST file for an RPA within a year of filing the PPA. If you do not, you can no longer claim the PPA filing date.
Regular Patent Application (RPA): A regular patent application is the full deal. When you file for a RPA, the USPTO will begin the examination process.
It’s not at all unusual for successful businesses to try to trademark a symbol, catchphrase, or anything else in an attempt to protect their brands from would-be thieves. When celebrities do it, disaster results. The following are some of the most outrageous celebrity trademark stories you’ll hear about; almost enough to make you think that we need to tighten some of the regulations that govern trademark law. Take a breath, because you’re about to lose some brain cells.
The New England Patriots have weathered their fair share of controversy in years past, and you can add ridiculous trademark attempts to the list. The team tried to trademark “Perfect Season” and “19-0” even though they lost. It isn’t the first time someone tried to do this. The Kraft Group tried to trademark “Road to Perfection” and the aforementioned phrases in 2008 after the Patriots were set for that year’s Super Bowl. They actually got “Road to Perfection” but since they never actually won either Super Bowl, they still haven’t sealed the deal on the other two phrases. Sadly, this type of Super Bowl trademarking isn’t even unusual.
Snooki once tried–and failed–to trademark her nickname. She did this in an attempt to keep the branding for her book rights and TV personality, but unfortunately for her the trademark had already been granted in 2004 to a fictional cat by the same name. All right, not exactly the same name. The cat’s name was Snooky. Close enough, right? The Trademark Office thought so, stating that there could be confusion. Tough luck.
As if you haven’t already heard enough about Donald Trump, the New York native tried and failed to trademark the Celebrity Apprentice catchphrase “You’re Fired!” way back in 2004. Apparently the Trademark Office believed that there could be confusion with another similar trademark from a game called “You’re Hired!” A pottery shop in Chicago also goes by the name “You’re Fired”, and the judge didn’t want to take away their business for the likes of Donald Trump. A good decision.
Sarah Palin is another politician known for both her personality and decision-making skills. She tried to trademark her name, but forgot to sign the registration forms. She also tried to trademark her daughter Bristol’s name. Both were for the motivational speaking. Although the forms were denied because they lacked signatures, the judge who made the decision also noted that the Palins would have to prove that their names were used for commerce. It’s rather unfortunate that someone can trademark their own name, but that’s the world we live in.
These are only a few of the celebrity trademark stories out there, but at this point you probably won’t be surprised that there are many, many more!
Taylor Swift is notorious for trademarking things so other artists can’t take advantage of her work. Watch this video to learn more:
There are two problems with originality when it comes to creative work. One, it is always met at first with the utmost scrutiny. And two, if it is successful, it often inspires less originality in its wake. Developing a purely original thought when it comes to writing a book these days is such a rare thing. Our thoughts and inspirations are obvious sources of other material, and so treading the line between taking inspiration from something and outright copying its concepts to paper can sometimes be quite difficult. In the cases where litigation follows, it may be just as difficult to come to a fair ruling that satisfies all parties due simply to the abstract angle that creativity can take.
Sometimes, however, it is much easier to see when someone may be trying to ride the coattails of success.
“The seven Potter books…have been published in 64 languages, sold more than 400 million copies and produced a film franchise that has pulled in $4.5 billion at the worldwide box office.” A quote pulled from an article on the German website, welt.de. Suffice it to say, J.K. Rowling has done very well for herself since the publication of “Harry Potter and the Sorcerer’s Stone,” once long ago regarded as a children’s storybook, now part of the foundation of a franchise for a fan base around the globe.
In this day and age, Rowling is part of the exclusive “one in a million” group of writers whose work is not only critically acclaimed, but known around the world and able to provide a steady and successful career for her as an author, very likely setting her for the rest of her life. And so it stands to reason that she may want to protect the investment of her time into such work.
In the article mentioned above, Rowling commented, “Many books have been published which offer original insights into the world of Harry Potter. The Lexicon just is not one of them.” A reference to the work of RDR Books and Steven Vander Ark, an encyclopedia chock full of Potter-verse information that covers details from the 7-book, 8-movie anthology – including characters, creatures, magical spells and potions. It is a work that many might see as an obvious rip-off to make a quick buck off the Potter fan base, and one that Rowling herself testified to being, “nothing more than a rearrangement of her material.”
Vander Ark claimed that he was using the information to build a reference guide under fair use, which would allow him to replicate portions of the written work without requiring permission from the copyrighted work’s creator. However, more often than not, to determine fair use, a body of work written in this way would need to be successfully categorized into one of two fields: commentary and critique, or parody. While we don’t intend to explore critically the legal ramifications, it may be safe to say that Vander Ark – who is portrayed as a dedicated fan of Rowling’s work – was very likely not creating a parody with his Lexicon. Which leaves commentary and critique – which requires original commentary. Which is something that both Rowling and U.S. District Judge Robert Patterson apparently thought was lacking.
This is not meant to discourage creativity. Yes, it is difficult to come up with an original, marketable idea to put to paper these days. But, again, there is a difference between taking inspiration from someone’s work and just taking their work. And while Vander Ark’s intentions may have been pure (though still marketable), it still seems more than obvious he was stepping on Rowling’s toes by attempting publication.
More people use social media every day than ever before. People continue to sign up for sites like Facebook, Pinterest, Google + and more. But, the reality is the question of what happens when a person dies? Does the social media account go away?
The answer is that it depends on the platform. Pinterest specifies in its rules and terms that it does not do anything. Your account could remain up indefinitely. If you are a Facebook user, Facebook will either change it to a memorial page, leave it be or delete it. They need to hear from loved ones to find out you or a loved one has died.
There are no laws that pertain to this sort of thing in the United States. There probably should be because of how susceptible online profiles can be to trolls or people who are mean-spirited and just want to put comments on a page that is not actively monitored. That does not exactly help the surviving family members but the fact that this can happen should be a cause for deciding ahead of time what your social media wishes are.
A simple way to handle this is to assemble a list of everyone’s usernames and passwords. The thought of collecting information like this is not easy to deal with, but remember that it will go a long way in the event of someone’s passing. You can avoid dealing with unpleasant comments about a loved one or seeing their page get bombarded with endless amounts of spam.
If you do choose to leave a page up as a memorial, Facebook allows this as long as they are in receipt of an obituary from an official publication. They will review the information before memorializing the account.
For five years, the Patent Trial and Appeal Board (or PTAB) has been in charge of determining whether a patent is, well, patentable. The problem is that it’s really easy to launch a challenge against a patent either already in place, or in the process of being implemented. Critics of the board want big changes to the processes used to determine whether a drug or other product is suitable for patent, but not everyone is willing to wait for those changes. Allergan Plc is willing to pay a hefty price rather than see its drug opened up to an appeal process that might not go its way.
That’s why the drugmaker opted instead to transfer its patents to the Saint Regis Mohawk Tribe in Upstate New York. The tribe stands to make $15 million annually in royalties just for hanging onto the patent for Allergan, which made $1.49 billion in sales in 2016. Because Native American tribes aren’t bound by the same laws as anyone else who lives in any of the fifty states within the U.S., it can hold onto the patent without falling under the watchful eyes of the PTAB, thereby guaranteeing that the drug can continue to be sold into the foreseeable future.
When your company makes billions, it pays to be sneaky. The PTAB has reversed so many patents that it has been nicknamed a “death squad.”
Then again, not everyone thinks the board is bad news. Google and Apple are routine users of the board, using it to defend against potentially frivolous lawsuits that could damage their reputation and capacity to do business for the greater good, while also attacking patents they don’t like.
Because the PTAB is so controversial and has overturned so many patents, the Supreme Court is finally getting involved. As of June 2017, it decided to hear arguments as to whether or not the board’s recommendations and reviews are indeed legal. The potential that the court will rule in favor of the PTAB is more likely than not, but critics of the board are happy that the issue is finally getting the attention it deserves.
Opposition to the PTAB criticizes the board’s rulings because it regulates the kind of evidence that can be offered during appeals processes, and then often fails to explain the resulting decisions. That’s why Allergan and other companies are trying to bypass the board entirely rather than work with it. Others contend that the PTAB is overburdened. When originally conceived, there was an expectation of perhaps an annual pool of only a hundred or so petitions, while in reality there were thousands.
The tech companies that fought for the board’s creation aren’t backing down from the fight. After the board was created, the number of lawsuits filed against Silicon Valley tech startups and bigger companies like Apple or Google started to fall. On the other side of things, they’ve been able to challenge patents that are similar to their own.
Whether or not changes will be made might depend on whoever finds their way into the post–Barack Obama’s appointee has since left–and the decision of the Supreme Court.