Indiana Intellectual Property Questions & Answers
Q: It is possible for a small business protect a original clothing line from copycat?
Paul Overhauser's answer
Yes it is. Clothing designs can be protected by copyrights, patents (usually design patents) and by trademarks. There is also new federal legislation under consideration to provide a stronger form of protection for clothing designs, but at the moment, it does not look like it will be passed soon. You should consult with an intellectual property attorney for more specifics. Feel free to email me if you would like to follow up.
Paul...
Yes it is. Clothing designs can be protected by copyrights, patents (usually design patents) and by trademarks. There is also new federal legislation under consideration to provide a stronger form of protection for clothing designs, but at the moment, it does not look like it will be passed soon. You should consult with an intellectual property attorney for more specifics. Feel free to email me if you would like to follow up.
Paul...
Q: How do I find case results for patent infringement cases in Virginia?
Paul Overhauser's answer
Try going here: http://dockets.justia.com/ Select Virgina for the jurisdiction and patent (under intellectual property) for the case "Type." This will show you patent cases that have been filed. Then get a PACER account, and look at the docket reports for various cases.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
Try going here: http://dockets.justia.com/ Select Virgina for the jurisdiction and patent (under intellectual property) for the case "Type." This will show you patent cases that have been filed. Then get a PACER account, and look at the docket reports for various cases.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
Q: Shouldn't the United States Postal Service be able to sue the Faternal Order of Eagles for copyright infringment?
Paul Overhauser's answer
I don't think so. I am not aware of any specific eagle logo of the FOE that they have registered and that the USPS has copied.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
I don't think so. I am not aware of any specific eagle logo of the FOE that they have registered and that the USPS has copied.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
Q: Is it a violation of appropriation of name if i publish a book using a pen name the same as a celebrities true name?
Paul Overhauser's answer
Yes, you would have potential liability if your book was published under circumstances that led consumers to believe that it came from a celebrity, rather than yourself. This would include misstating the name of a celebrity. If you changed your name to be the same as the celebrity, there could still be exposure. You would want to include a disclaimer on the cover and in marketing materials to make it clear to consumers that you are not affiliated with the celebrity. California has very strong...
Yes, you would have potential liability if your book was published under circumstances that led consumers to believe that it came from a celebrity, rather than yourself. This would include misstating the name of a celebrity. If you changed your name to be the same as the celebrity, there could still be exposure. You would want to include a disclaimer on the cover and in marketing materials to make it clear to consumers that you are not affiliated with the celebrity. California has very strong...
Q: How can I protect a new recipe I have come up with for barbeque sauce? It is really good.
Paul Overhauser's answer
The best way to protect a recipe would, in theory, be through a patent. However, this could be difficult for two reasons. First, "non-obviousness" is required for a patent, and the Patent Office may consider your ingredients to be "obvious," and hence unpatentable. Second, in considering patent protection, you have to think about whether you would be able to detect infringers. As a practical matter, how would you know if someone else's sauce used your recipe. Most people would stick to...
The best way to protect a recipe would, in theory, be through a patent. However, this could be difficult for two reasons. First, "non-obviousness" is required for a patent, and the Patent Office may consider your ingredients to be "obvious," and hence unpatentable. Second, in considering patent protection, you have to think about whether you would be able to detect infringers. As a practical matter, how would you know if someone else's sauce used your recipe. Most people would stick to...
Q: Can I copyright the name of my band?
Paul Overhauser's answer
A band name is not copyrightable, but it can be protected by trademark law. You may be ablet to obtain a State or Federal trademark registration on the name, and, a logo for the band's name, if you have one.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
A band name is not copyrightable, but it can be protected by trademark law. You may be ablet to obtain a State or Federal trademark registration on the name, and, a logo for the band's name, if you have one.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
Q: Is it possible to file a trademark request without an attorney?
Paul Overhauser's answer
Yes, you can, by going to uspto.gov. However, unless you are familiar with the regulations of the Trademark Office, your application may be rejected.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
Yes, you can, by going to uspto.gov. However, unless you are familiar with the regulations of the Trademark Office, your application may be rejected.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
Q: Our free paper wants to use lyrics of songs in an article--is there a fixed number of words to quote copyright free?
Paul Overhauser's answer
First consider whether the lyrics may be in the public domain, for example, if the song is over 75 years old. Assuming the song is protected by copyright, unfortunately, there is no "objective test" for how many words you can quote. In general, reproducing a copyrighted work for purposes of comment or criticism is a "fair use" that does avoid infringement liability. However, you should only reproduce enough of the lyrics to allow you to make your commentary. That COULD be all the lyrics, or, it...
First consider whether the lyrics may be in the public domain, for example, if the song is over 75 years old. Assuming the song is protected by copyright, unfortunately, there is no "objective test" for how many words you can quote. In general, reproducing a copyrighted work for purposes of comment or criticism is a "fair use" that does avoid infringement liability. However, you should only reproduce enough of the lyrics to allow you to make your commentary. That COULD be all the lyrics, or, it...
Q: I saw an innovatiive machine at a trade show in Germany, and there is nothing like it in the US. Can I get a US patent?
Paul Overhauser's answer
No, you would not be able to obtain a US patent on the same machine, because in the US, a patent can only be issued to the "inventor," and you are not the inventor. However, most patents are not for entire machines, but only improvements to things others have done in the past. If you make an improvement to the machine you saw in Germany, you may be able to patent the improvement. If the machine from Germany is patented in the US, you may also be able to license the US rights to the...
No, you would not be able to obtain a US patent on the same machine, because in the US, a patent can only be issued to the "inventor," and you are not the inventor. However, most patents are not for entire machines, but only improvements to things others have done in the past. If you make an improvement to the machine you saw in Germany, you may be able to patent the improvement. If the machine from Germany is patented in the US, you may also be able to license the US rights to the...
Q: Can I register a copyright to a diary I found in my grandmother's attic?
Paul Overhauser's answer
Only a "claimant" to a copyright can register it. You are not the "author" so you cannot claim ownership through authorship. However, assuming your grandmother is dead, and your are her sole heir, you may be the copyright owner under the laws where your grandmother died. If this is the case, you can register a copyright.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
Only a "claimant" to a copyright can register it. You are not the "author" so you cannot claim ownership through authorship. However, assuming your grandmother is dead, and your are her sole heir, you may be the copyright owner under the laws where your grandmother died. If this is the case, you can register a copyright.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
Q: Can I copyright my website?
Paul Overhauser's answer
Assuming you created the website yourself, yes, you can copyright a website by using Copyright application form TX or by filing on-line. However, most business websites are created by website development companies. Unless they assign the copyrights in the website to you, they own it not you. Also, you should take care to ensure that you do not exaggerate what aspects of the website you claim to own, such as stock photos taken by someone else.
Paul...
Assuming you created the website yourself, yes, you can copyright a website by using Copyright application form TX or by filing on-line. However, most business websites are created by website development companies. Unless they assign the copyrights in the website to you, they own it not you. Also, you should take care to ensure that you do not exaggerate what aspects of the website you claim to own, such as stock photos taken by someone else.
Paul...
Q: Can district court prosecute you for a counterfeit trademark offense?
Paul Overhauser's answer
Yes, a Federal Attonrey can prosecute you for a counterfeit trademark offense per 9 USC 1715: In order to show that a trademark used by the defendant was a "counterfeit mark" the government must prove the following: The mark is spurious. 18 U.S.C. § 2320(d)(1)(a). A mark is "spurious" if it is "not genuine or authentic." Joint Statement on Trademark Counterfeiting Legislation, 130 Cong. Rec. H12076, H12078 (daily ed. Oct. 10, 1984)(hereinafter "Joint Statement"). The mark was used in...
Yes, a Federal Attonrey can prosecute you for a counterfeit trademark offense per 9 USC 1715: In order to show that a trademark used by the defendant was a "counterfeit mark" the government must prove the following: The mark is spurious. 18 U.S.C. § 2320(d)(1)(a). A mark is "spurious" if it is "not genuine or authentic." Joint Statement on Trademark Counterfeiting Legislation, 130 Cong. Rec. H12076, H12078 (daily ed. Oct. 10, 1984)(hereinafter "Joint Statement"). The mark was used in...
Q: If I were to start small party business selling replica purses that had the tradmark of real brand . Would I go to jail?
Paul Overhauser's answer
Criminal penalties are applicable in severe trademark infringement cases involving counterfeiting of products. Counterfeiting is considered to be an extreme form of trademark infrigmement since the infringer knowingly takes advantage of the trademark, brandname, and goodwill of a firm to deliberately create counterfeit products (i.e. lower quality imitations) for the purpose of seeking economic gain. The Trademark Counterfeiting Act of 1984 and the Anticounterfeiting Consumer Protection Act of...
Criminal penalties are applicable in severe trademark infringement cases involving counterfeiting of products. Counterfeiting is considered to be an extreme form of trademark infrigmement since the infringer knowingly takes advantage of the trademark, brandname, and goodwill of a firm to deliberately create counterfeit products (i.e. lower quality imitations) for the purpose of seeking economic gain. The Trademark Counterfeiting Act of 1984 and the Anticounterfeiting Consumer Protection Act of...
Q: Do I have any commercial rights over my own photographs?
Paul Overhauser's answer
It depends on what you mean by your "own" photographs. If these are photos you took, yes, you probably own copyrights to them. If someone else took picture of you, they would own the rights to them. However, you may also have a "right of publicity," which would give you the right to prevent others from using the photos (or any other likeness of you) to sell a product or service.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
It depends on what you mean by your "own" photographs. If these are photos you took, yes, you probably own copyrights to them. If someone else took picture of you, they would own the rights to them. However, you may also have a "right of publicity," which would give you the right to prevent others from using the photos (or any other likeness of you) to sell a product or service.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
Q: I got a state trademark registration in Michigan,
Paul Overhauser's answer
If there is actual or likely confusion caused by the similar name, you probably have rights that can be enforced. Both state law and the Federal Lanham Act allow claims for infringement of trademarks, even if there is no state or federal trademark registration. You should consult a trademark attorney for a more thorough answer.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
If there is actual or likely confusion caused by the similar name, you probably have rights that can be enforced. Both state law and the Federal Lanham Act allow claims for infringement of trademarks, even if there is no state or federal trademark registration. You should consult a trademark attorney for a more thorough answer.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
Q: Does anyone have information about settlement status w/Third World Media LLC plaintiff for copyright violation issues?
Paul Overhauser's answer
Third World has filed 5 cases. The first two are concluded, and the last three are still pending: 1 Third World Media, LLC (cd) cacdce 2:2009-cv-01603 820 03/06/2009 10/28/2009 2 Third World Media, LLC (pla) cacdce 2:2009-cv-01603 820 03/06/2009 10/28/2009 3 Third World Media, LLC (pla) cacdce 2:2010-cv-06963 820 09/17/2010 4 Third World Media, LLC (pla) candce 4:2010-cv-04470 820 10/04/2010 5 Third World Media, LLC (pla) wvndce 3:2010-cv-00090 820 09/24/2010
Paul...
Third World has filed 5 cases. The first two are concluded, and the last three are still pending: 1 Third World Media, LLC (cd) cacdce 2:2009-cv-01603 820 03/06/2009 10/28/2009 2 Third World Media, LLC (pla) cacdce 2:2009-cv-01603 820 03/06/2009 10/28/2009 3 Third World Media, LLC (pla) cacdce 2:2010-cv-06963 820 09/17/2010 4 Third World Media, LLC (pla) candce 4:2010-cv-04470 820 10/04/2010 5 Third World Media, LLC (pla) wvndce 3:2010-cv-00090 820 09/24/2010
Paul...
Q: DO I NEED A TRADEMARK LAWYER?
Paul Overhauser's answer
There is no requirement that you hire a trademark lawyer. However, some reasons you might want to hire one are: (a) to ensure that a trademark is what you really need (many people confuse a trademark with a copyright or patent); (b) to conduct a search to ensure your mark is not infringing someone else's rights; (c) to help ensure you are successful in getting a trademark registration; and (d) to help you deal with any infringers.
Paul...
There is no requirement that you hire a trademark lawyer. However, some reasons you might want to hire one are: (a) to ensure that a trademark is what you really need (many people confuse a trademark with a copyright or patent); (b) to conduct a search to ensure your mark is not infringing someone else's rights; (c) to help ensure you are successful in getting a trademark registration; and (d) to help you deal with any infringers.
Paul...
Q: I started to sell my invention in Sep. 2009, and filed for a US patent in December. Can I still get foreign patents?
Paul Overhauser's answer
It depends on exactly "what" was sold, and on what is claimed in the patent. However, assuming what was sold is the thing covered by the patent, you have probably missed the deadline to get a patent in most foreign countries. Most do not have a 12-month "grace period" for filing, like the US has. However, the correct answer is very fact specific, so you should contact your patent attorney to find out for sure.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317-...
It depends on exactly "what" was sold, and on what is claimed in the patent. However, assuming what was sold is the thing covered by the patent, you have probably missed the deadline to get a patent in most foreign countries. Most do not have a 12-month "grace period" for filing, like the US has. However, the correct answer is very fact specific, so you should contact your patent attorney to find out for sure.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317-...
Q: I invented and had a prototype working for 2 years i called a company and they stole my invention. Do i have any rights
Paul Overhauser's answer
It depends on several factors, such as whether you filed for a patent, whether it may still be possible for you to do so, and whether the company you called agreed to keep the invention confidential. There may also be other relevant facts. You should contact an intellectual property attorney to discuss further.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
It depends on several factors, such as whether you filed for a patent, whether it may still be possible for you to do so, and whether the company you called agreed to keep the invention confidential. There may also be other relevant facts. You should contact an intellectual property attorney to discuss further.
Paul Overhauser
www.iniplaw.org
www.overhauser.com
317- 891-1500
Q: If I file for a patent or copyright, will the information in my applications become available on Google?
Paul Overhauser's answer
For the patent application, unless the application is abandoned within 18 months, or unless it was filed with a Non-publication Request (which would limit your ability to file for foreign patents) your application will be published. Similarly, unless you with withdraw your copyright application, if it is approved, it will be come publicly available on the Internet.
Paul Overhauser
317 891-1500
www.overhauser.com
For the patent application, unless the application is abandoned within 18 months, or unless it was filed with a Non-publication Request (which would limit your ability to file for foreign patents) your application will be published. Similarly, unless you with withdraw your copyright application, if it is approved, it will be come publicly available on the Internet.
Paul Overhauser
317 891-1500
www.overhauser.com
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