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Questions Answered by Barbara Berschler
2 Answers | Asked in Copyright for North Carolina on
Q: I am currently writing a book that I intend to turn into a tv series. If I write up a proposal, can I copyright the idea
Barbara Berschler
Barbara Berschler answered on Jun 9, 2020

As Ms. Surero said, copyright does not protect "ideas." Rights of copyright do attach as soon as you "fix" the idea in some expression. In your case, it sounds like you have established some copyright rights in your draft of the book. Depending how far along you are in that... Read more »

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3 Answers | Asked in Copyright and Patents (Intellectual Property) for Michigan on
Q: Can I patent a formula for a hair product I’m creating for a celebrity?

I currently create a hair product for a celebrity that I created and cook in my kitchen. I package it and send it and she applies her label to it. Can I patent the formula just in case she wants to buy it, how do I know how to price the formula? She has ingredients, not the specific formula... Read more »

Barbara Berschler
Barbara Berschler answered on Jun 9, 2020

It sounds like what you have is a trade secret which reveals the proportions of the ingredients. You may want to look into having a nondisclosure agreement in place so that you can license her the know-how to create the product. For example, supposedly the original recipe for Coca Cola has been... Read more »

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2 Answers | Asked in Business Formation for Pennsylvania on
Q: What to do if someone wants to buy a food recipe off you for a business and you want a percentage of the company
Barbara Berschler
Barbara Berschler answered on Jun 6, 2020

You will need to enter into a trade secret agreement in which in exchange for letting them know the recipe, you would get some percentage. Best to work with an attorney in the drafting of the agreement.

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2 Answers | Asked in Trademark for Massachusetts on
Q: If I have the same artist name as someone who has trademarked the name, do I have to remove my music from stores?

I released music to Distrokid in March and May under my artist name Jilian Ann. There happens to be another Jillian Ann who has released music in the past who just contacted me claiming she owns the trademark to Jillian Ann and has threatened legal action on me if I don't change my artist... Read more »

Barbara Berschler
Barbara Berschler answered on Jun 6, 2020

Your situation sounds serious enough that I suggest you consult with counsel as to your options.

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1 Answer | Asked in Copyright on
Q: Is it necessary to have the software developer's name on the copyright notice along with the copyright owner?
Barbara Berschler
Barbara Berschler answered on Jun 6, 2020

It may be that the software developer owns the copyright. Do you have a written agreement signed in advance that says the developer assigned any of her copyright rights to you? Best to consult an attorney to review what you have to be sure you actually own the copyright.

1 Answer | Asked in Trademark for North Carolina on
Q: Is a non-profit able to claim exclusive rights to an awareness day?

I reshared a video on social media urging people to request proclamations for "chronic disease day" another non profit originally created the day, the logo was trademarked but that logo was not used just the phrase "Chronic Disease Day". Are they able to claim these rights? On... Read more »

Barbara Berschler
Barbara Berschler answered on Jun 6, 2020

Yours is a complicated question as to what the originator of the "day" has registered and would want to protect. It would be best to work with a trademark attorney to understand what is the effect of the registrant's disclaimer.

1 Answer | Asked in Business Formation, Business Law and Trademark for California on
Q: I have a question about a company name

Someone else has the company name I want but, they haven't been active since 2014 I believe. They don't have it trademarked i looked them up on the government trademark site and other sites they don't come up. Is it possible i can trademark the name and use it for my company?

Barbara Berschler
Barbara Berschler answered on Jun 6, 2020

Trademark rights are not merely created by someone registering the mark, whether with the USPTO or under a state's law. Under the common law, if you use a mark as a mark, you can acquire trademark rights in that mark. You would need to investigate further about whether the other person has... Read more »

2 Answers | Asked in Copyright and Trademark for Ohio on
Q: Is it copyright infringement if the logo itself is not altered or modified?

If i go to Starbucks and purchase a reusable cup, am I legally allowed to go home, personalize it with a name or decoration and resell it? I’ve read several things, such as the “first sale doctrine”, and that leads me to believe that this is legal as long as I am not reproducing the logo or... Read more »

Barbara Berschler
Barbara Berschler answered on Jun 6, 2020

When you buy the cup, you own the cup, but you do not own the copyright rights associated with the logo. Your additions could be considered as creating a derivative work without the copyright owner's permission. Also, you would be infringing upon the trademark, and, since Starbucks mark is... Read more »

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1 Answer | Asked in Copyright and Trademark for North Carolina on
Q: I wanted to create some black lives matters merch and donate some to the cause once I reached a certain amount...

I wanted to make sure by doing this, I'm not infringing

Barbara Berschler
Barbara Berschler answered on Jun 2, 2020

I believe there is an official "Black Lives Matter" group. See: https://blacklivesmatter.com/contact/ There are also a number of applications pending with the USPTO that could be relevant. Check with the BLM group about the best way to proceed with your idea.

1 Answer | Asked in Copyright for Pennsylvania on
Q: Hypothetical Use of Fictional Name

Hypothetical question: If Ginger and Fred's restaurant atop the Dancing House in Prague (named after real life people Ginger Rogers and Fred Astaire) had been named "Bond & Lynd's", with a marketing campaign involving a generic man in tux and a beautiful woman, would that... Read more »

Barbara Berschler
Barbara Berschler answered on Jun 2, 2020

It may be copyright infringement and also trademark infringement. You acknowledge that you do want to make an obvious reference to the Bond enterprise. Best to consult with an attorney before you proceed with your plan.

2 Answers | Asked in Copyright and Trademark on
Q: I can see that this trademark was abandoned, so can I buy this trademark? "Yoga Swing"
Barbara Berschler
Barbara Berschler answered on Jun 2, 2020

Just because a mark may appear as "abandoned" in the USPTO's data base, that does not mean the mark is legally abandoned. The listing may just mean the applicant did not meet all of the USPTO's filing requirements. The person may still be using the mark and therefore has... Read more »

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1 Answer | Asked in Copyright and Trademark on
Q: So I have a business and I wrote an ebook. One company is telling me I plagiarized their work, and I didn't. What to do?
Barbara Berschler
Barbara Berschler answered on Jun 2, 2020

You need to speak with a copyright attorney so you have a better idea of what the other person is claiming and your choices of action.

1 Answer | Asked in Trademark on
Q: I would like to know if it is possible to use a business' old company logo from over 20 years ago?

I am designing a homage football jersey and would like to use Newcastle United's old club crest from the 1980's

Barbara Berschler
Barbara Berschler answered on May 30, 2020

Just because it is an older version of the soccer team's crest does not mean that the team no longer has trademark rights. And to the extent the crest is protected by copyright, that is likely still in effect. You should check the team's website to see what they say about licensing... Read more »

1 Answer | Asked in Copyright, Intellectual Property and International Law on
Q: Image infringement. Photos of my face have been used multiply times by amazon for commercial purposes

Without mine or photographer’s knowledge, images have been used for commercial purposes of selling items on amazon. What Kind of action should I take?

Barbara Berschler
Barbara Berschler answered on May 29, 2020

If you are a non-celebrity, you have a right of privacy. (If a celebrity, then you have a right of publicity.) It would be best to work with an attorney familiar with these kinds of actions. Keep in mind that if Amazon is merely the service provider, it would not be liable, unless it knows of the... Read more »

1 Answer | Asked in Copyright for Missouri on
Q: Can I sell prints of photos of cars that I took while hired by a car dealership? Some could be labeled “artistic.”

I own a small two-person photography / videography business. One of my clients is a car dealership that has the brands Volkswagen, Audi, Mercedes-Benz, and Porsche. I’ve taken photographs weekly for them for years and am looking to see if I can legally sell prints of these vehicles. I’m afraid... Read more »

Barbara Berschler
Barbara Berschler answered on May 27, 2020

Interesting question. The situation you describe has copyright and trademark implications. Because the cars have insignias and other marks on them, in addition to their overall look, the trademark owners likely would not like the public to think they authorized you to take the photos. Similarly,... Read more »

1 Answer | Asked in Business Formation for Alabama on
Q: Hi, so I have a business I’m looking to start, and there is an abandoned trademark with the same name I’m looking to

Trademark. And the business has similar objective but different, can I trademark the name or not ?

Barbara Berschler
Barbara Berschler answered on May 27, 2020

The name of the business and a trademark can be the same word. But they serve different purposes. Regardless of whether a mark appears "abandoned" on the USPTO's website, that does not mean that the owner is not still using it and therefore retains rights in the mark. Best to work... Read more »

1 Answer | Asked in Business Formation on
Q: Can I register a corporation with a similar name to another in a completely different industry?
Barbara Berschler
Barbara Berschler answered on May 27, 2020

You will need to check with the California's Corporation Division. Even if you provide different services, if you want an identical name, that could pose a problem. Most states provide the ability to search for entity names and then to reserve the name. It may be enough if you change some... Read more »

1 Answer | Asked in Copyright and Intellectual Property for Virginia on
Q: if a member of Apple Music/Spotify puts music on a photo and shares it across apps is that illegal?

I'm making a photo-sharing app where users can add music to photos (if they're members of Apple Music or Spotify) and share these photos that have songs on them to other apps, would that be illegal? Since Apple Music/Spotify both own licenses to songs and users are paying for these services.

Barbara Berschler
Barbara Berschler answered on May 27, 2020

It mostly boils down to what are permitted uses of the music based on the licenses issued by Apple Music/Spotify. It would be important to check the Terms of Use/licenses granted to the members. The licenses may not extend to letting members add the licensed music to another application. Best... Read more »

3 Answers | Asked in Copyright, Intellectual Property and Patents (Intellectual Property) for Nevada on
Q: Who owns the intellectual property (photo), if a friend used my cell phone to take the photo of my property?

My friend used my cell phone to take a picture of my sound bowl and it came out beautiful. She he says the picture is his intellectual property. Although the cellphone used to take the picture and the sound bowl is mine. Who owns the photo?

Barbara Berschler
Barbara Berschler answered on May 27, 2020

The person who took the photograph owns the copyright in it. Hopefully, if you want the copyright, your friend will agree in a writing "to assign" those rights to you. I leave it to you to figure what a fair price would be for the exchange. Another alternative is that she licenses to... Read more »

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3 Answers | Asked in Trademark for Florida on
Q: Name I want to use is trademarked. But what if my business has more of a social presence than the trademarked name?

I can’t even find the trademarked business online.

Barbara Berschler
Barbara Berschler answered on May 27, 2020

When you say "trademarked", do you mean the mark is registered with the USPTO? If so, then it does not matter how they choose to advertise their goods/services, they generally have the protection in all 50 states. Now, if what you plan to sell are totally different kinds of... Read more »

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