Category Archives: Intellectual Property Law

Nature of Patent and Patent Rights

Nature of Patent and Patent Rights

The patent is issued in the name of the United States under the seal of the United States Patent and Trademark Office, and is either signed by the Director of the USPTO or is electronically written thereon and attested by an Office official. The patent contains a grant to the patentee, and a printed copy of the specification and drawing is annexed to the patent and forms a part of it. The grant confers “the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” and its territories and possessions for which The term of the patent shall be generally 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application under 35 U.S.C. 120, 121 or 365(c), from the date of the earliest such application was filed, and subject to the payment of maintenance fees as provided by law.

The exact nature of the right conferred must be carefully distinguished, and the key is in the words “right to exclude” in the phrase just quoted. The patent does not grant the right to make, use, offer for sale or sell or import the invention but only grants the exclusive nature of the right. Any person is ordinarily free to make, use, offer for sale or sell or import anything he/she pleases, and a grant from the government is not necessary. The patent only grants the right to exclude others from making, using, offering for sale or selling or importing the invention. Since the patent does not grant the right to make, use, offer for sale, or sell, or import the invention, the patentee’s own right to do so is dependent upon the rights of others and whatever general laws might be applicable. A patentee, merely because he/she has received a patent for an invention, is not thereby authorized to make, use, offer for sale, or sell, or import the invention if doing so would violate any law. An inventor of a new automobile who has obtained a patent thereon would not be entitled to use the patented automobile in violation of the laws of a state requiring a license, nor may a patentee sell an article, the sale of which may be forbidden by a law, merely because a patent has been obtained.

Neither may a patentee make, use, offer for sale, or sell, or import his/her own invention if doing so would infringe the prior rights of others. A patentee may not violate the federal antitrust laws, such as by resale price agreements or entering into combination in restraints of trade, or the pure food and drug laws, by virtue of having a patent. Ordinarily there is nothing that prohibits a patentee from making, using, offering for sale, or selling, or importing his/her own invention, unless he/she thereby infringes another’s patent which is still in force. For example, a patent for an improvement of an original device already patented would be subject to the patent on the device.

The term of the patent shall be generally 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application under 35 U.S.C. 120, 121 or 365(c), from the date of the earliest such application was filed, and subject to the payment of maintenance fees as provided by law. A maintenance fee is due 3 1/2, 7 1/2 and 11 1/2 years after the original grant for all patents issuing from the applications filed on and after December 12, 1980. The maintenance fee must be paid at the stipulated times to maintain the patent in force. After the patent has expired anyone may make, use, offer for sale, or sell or import the invention without permission of the patentee, provided that matter covered by other unexpired patents is not used. The terms may be extended for certain pharmaceuticals and for certain circumstances as provided by law.

Intellectual Property Lawyer

When you need help with business law and IP law, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah

84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

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How To Trademark A Word

How To Trademark A Word

Any design, logo, symbol, name, or word that distinguishes a product or service from those offered by its competitors is a trademark. If you own a trademark, you can prevent others from using it. The benefit of having a trademark is that it represents your brand and over time may come to stand for quality.

You own a trademark if you are the first to use it in commerce, even if the word or mark in question is not registered.

What Are the Benefits of Registering a Trademark?

Many trademark owners wonder whether they should go through the trouble of federal registration. These are some of the main advantages of doing so:
• If you are seeking legal remedy for infringement and the trademark is registered, the defendant must bear the burden of proof.
• Other companies using similar trademarks in other states cannot claim territorial rights. State trademarks provide protection only in your state, a concern in the increasingly global marketplace.
• Federal trademark registration can be used to apply for trademark protection in other countries.
• If infringement occurs, you can litigate in federal court.
• Others will be deterred from using the mark.
• You may use the federal registration symbol.
• Your trademark will be listed in the USPTO’s online database.

How Do You Trademark a Word?

When you trademark a word, you give a person or company exclusive rights to connect one brand with that word. You can trademark a word that identifies your company or your products.

Register your trademark with the U.S. Patent and Trademark Office (USPTO) to protect your trademark throughout the United States. A trademark registered with the USPTO is a registered trademark and gets marked with the registered trademark (®) symbol.

You don’t have to register a word with the USPTO to get trademark status. A word is a trademark if that word identifies a brand, regardless of whether the word itself is registered. However, unregistered trademarks with the USPTO are only trademarked within the company’s geographical area. Trademark rights for an unregistered mark belong to the company that first used the mark. Use the trademark symbol (TM) for a trademark that isn’t registered with the USPTO.

How to Trademark a Phrase or Word

• Trademarks offer legal protection for the identifying features of commercial products. The feature can be the name of the product – its brand name – or a short phrase associated with it, like Maxwell House’s “Good to the last drop,” a trademark currently owned by Kraft Foods. Trademarks can be other features as well, such as a distinctive sound, shape or color combination associated with your product. Obtaining a trademark is straightforward.

You don’t necessarily have to do anything special to trademark a word or phrase. The simple act of using the word or phrase in association with your commercial product is enough to confer trademark protection. No registration is required and there is no paperwork necessary to bring your trademark into being.

Although your trademark comes into existence even without registration, the legal protection it offers is not quite at full strength. If another product infringes on your trademark (that is, uses the same name or phrase without your permission), or if you are accused of infringing on someone else’s trademark, then the lack of registration can be detrimental.
A registered trademark has a clear paper trail, an official record of trademark ownership and the length of time it’s been in use. The record is valuable evidence in case you have to argue trademark priority in a court case over ownership.

Registering Your Trademark

You register trademarks with the U.S. Patents and Trademarks Office. The process for registering with the USPTO involves a fee and a good deal of paperwork. It often pays to hire a trademark specialist to assist with the registration.
The Trademark Registration Process
The USPTO website provides comprehensive guidance for registering your trademark. In essence, though, the steps are:
Check the trademark database
Search the trademark database and other sources of product information to make sure your trademark won’t conflict with one that is already in use. Products can carry similar (even identical) names as long as there is no likelihood of confusion. Acme Exterminators and Acme Catering can both use the Acme name, as the similarities of the names are not likely to cause confusion.

Complete the paperwork
Fill out the trademark application, either on your own or with the assistance of a specialist. The application can be prepared and submitted online, or submitted to the USPTO on paper; the latter method generally takes longer for the Trademark Office to process.
Pay the fee
Pay the fee, typically in the $200 to $300 range, though it varies according to the type of application.
Why Is Knowing How to Trademark a Word Important?
When you trademark a word, your competitors can’t use that word to identify their products. A trademark:
• Sets companies apart from one another
• Protects brand integrity
• Prevents unfair competition from customer confusion or deception
Registering a trademark with the USPTO lets you take legal action against companies who unjustly use the mark. You can sue for damages, attorney fees, and court costs if someone illegally uses your trademark. This illegal use is a trademark infringement.
When you trademark a word, you don’t protect it from use in everyday speech use or informational material. A trademark also doesn’t stop industries that don’t compete with your business from using the word.
When Should You Trademark a Word?
Trademark a word if it identifies your brand. You want to protect your brand and set your products apart from competitors’ products.
USPTO registration isn’t required for trademark status. However, a trademark gives you these benefits:
• Nationwide ownership
• Public notice of ownership
• Legal protection against infringement
• Use of the registered trademark symbol
• Listing in USPTO databases
• Ability to apply for trademark status in other countries
How Do You Create a Strong Trademark for a Word?
You need to have a strong word for your trademark. Made-up words and words that aren’t directly related to your product are the strongest words to trademark. Consider some word types when creating your trademark:
• Invented words: You can’t use these words in any context other than with your brand. For example, Adidas has no meaning other than the name of the company.
• Arbitrary words: Arbitrary words are words that exist but aren’t related to your product. An example of an arbitrary word trademark is bumblebee for Bumble Bee Seafood.
• Suggestive words: Suggestive words speak to a trait of your product but don’t directly refer to it. For example, the word Patagonia has no direct connection to outdoor clothing, but the word suggests imagery of outdoor adventures. Suggestive words are good trademarks, but they are less strong than invented or arbitrary words.

• Descriptive words: Descriptive words describe how you use a product. Descriptive words are difficult to trademark. An example of a descriptive word is Red Delicious for a type of apple.
• Generic words: Generic words that name a product can’t be trademarked. So while Apple Inc. can trademark Apple when talking about its products, a company that sells apples can’t trademark the name Apple.
How Do You Protect a Trademark for a Word?
When you trademark a word, you gain rights over the word. But you can lose the rights if you don’t protect your trademark.
1. Enforce Proper Usage
You should enforce proper capitalization and use of the registered trademark symbol wherever your trademarked word appears. If you don’t enforce proper use of your trademark, the word could become a generic name for the product. If a word becomes generic, you can lose the word’s trademark.
Dumpster is an example of a word that became generic and lost its trademark. Dempster Brothers created the word dumpster for their trash disposal brand. Over time, the word became a generic term for garbage containers.
Failure to enforce proper use of and attribution for your trademarked word, including trademark symbol usage, can also cause trademark dilution. Trademark dilution occurs when a trademarked word becomes less unique, gets adopted as a household name, or results from both situations. Your trademarked word could also get used in another industry. Dilution is only considered a type of trademark infringement for famous trademarks.

Protect Against Infringement

Infringement happens when a competitor illegally uses your trademarked word. File an infringement lawsuit to stop illegal use of your trademark. A lawsuit can result in an order for the competitor to stop using the trademark, to receive monetary damages, or both.
Stopping infringement protects your brand and prevents customer confusion. You should talk with a trademark lawyer before you file an infringement lawsuit.

Past Examples

Language is ever evolving, shaped by centuries of iteration, elimination, and re-creation. Words fall by the wayside and some, for better-or-worse, storm our vernacular over the course of a matter of months. To a degree, however, many are unaware of how greatly our language is influenced by one of those most ubiquitous institutions in the world: commerce.
Throughout history, words have taken on meaning and left it behind, becoming “genericized” in our everyday language. Many of these were once trademarks; brands championed by entrepreneurs and industry tycoons whose achievements have so permeated our culture that they cease to belong to a single entity.

Kerosene

Of the myriad words in our language that used to carry a royalty fee, several were born at the advent of the Industrial Revolution. With savvy businessmen eager to profit from this innovative age, it is no wonder that many common items became the subject of trademark registrations. In 1854, Abraham Gesner, in conjunction with the North American Gas Light Company and the Downer Company profited from the trademark of the term Kerosene. The term, likely derivative of the Greek term for was, ceros, is now used for any mixture of petroleum chemicals used for heating, fuel, or as an insect repellent.

Escalator

In 1897, Charles See Berger redesigned a Coney Island novelty ride that transported passengers up a moving staircase. Manufactured by Otis Elevator Company, the Escalator became a part of the vernacular before being genericized in 1950 when the patent was lost.

Touch-tone

Silicon Valley’s Intellectual Property disputes over website names, brands, and even color schemes are a distant grand-child to the technology registrations of the mid-to-late century. One such mark is “touch-tone”, a technology invented in 1962 and manufactured by Bell Telephone. The term appeared in the 1960s as a trademark but did not receive widespread use until the 1980s.

Videotape

Another now-archaic technology that permeated prose was the “videotape”. Invented in 1951 by Charles Ginsburg and his research team and manufactured by Apex, the term simply would not escape the home media conversation until the advent of DVDs in the late 1990s.

There are Limits

On the other side, as with trademarking quotes, the USPTO will reject applications for common phrases under certain circumstances. In 2014 the USPTO rejected nine applications for the phrase BOSTON STRONG, which grew from the 2013 Boston Marathon bombing. In rejecting, the USPTO wrote that “consumers are accustomed to seeing this slogan or motto commonly used in everyday speech by many different sources.” They decided similarly in 2002, when many companies filed trademark applications for the term “LET’S ROLL”, which was associated with the passengers on United Airlines Flight 93 on September 11, 2001.

Phrases that become popular during news events are not the only common words and phrases the USPTO might reject. In 2007 the USPTO rejected a trademark application for the word PODCAST. In their final Office Action, they stated: “The mark immediately describes and names the characteristics and features of the goods. Accordingly, the mark is refused registration on the Principal Register under Section 2(e) (1) of Trademark Act.” Since the term podcast has acquired a meaning of its own, no one can trademark it by itself when used in connection with podcast-related products or services. There are a number of active trademarks that use the word PODCAST, but they all contain the standard disclaimer: “NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE ‘PODCAST’ APART FROM THE MARK AS SHOWN”.

Trademark Attorney Free Consultation

When you need legal help with a copyright, trademark or other intellectual property in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Lanham Act Violations

Lanham Act Violations

The Lanham Act (otherwise called the Trademark Act of 1946) is the government rule that oversees trademarks, administration marks, and out of line rivalry. It was passed by Congress on July 5, 1946 and marked into law by President Harry Truman. The Act produced results on July 5, 1947. A government resolution managing how trademarks are utilized in business exercises. The motivation behind the Lanham Act is to guarantee trademarks are select to their clients just as lessen customer disarray when distinguishing surely understood products or administrations. Otherwise called the Trademark Act.

A small business that forms an LLC is required to register its name with the secretary of state’s office. This prevents other businesses within the same state from registering themselves with the same or a similar sounding name.

Some examples of trademarks include Toyota (Cars and Trucks), Nike (Apparel), and Microsoft (Software).

What is Trademark?

Basically a brand name, a trademark secures words, names, images, sounds or hues being utilized by one business to sell an item from being utilized by another.

Organizations spend a lot of cash to develop their brands, logos or trademarks. It bodes well that they ought to secure their speculation by picking up the selective legitimate appropriate to be the main substance to be permitted to utilize these.

To win on a case of trademark encroachment, an offended party must set up that it has a substantial imprint qualified for insurance; and that the litigant utilized the equivalent or a comparative imprint in business regarding the deal or publicizing of products or administrations without the offended party’s assent. The offended party should likewise demonstrate that litigant’s utilization of the imprint is probably going to cause disarray with regards to the alliance, association or relationship of the respondent with offended party, or with regards to the beginning, sponsorship, or endorsement of respondent’s merchandise, administrations or business exercises by the offended party. See 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005). Along these lines, “use,” “in business,” and “probability of disarray” are three particular components important to build up a trademark encroachment guarantee.

“Use”

” Use” of a trademark by an asserted infringer must be set up as a limit matter. Any number of exercises might be “in business” or may make a “probability of disarray.” However, without the utilization of a trademark, such exercises don’t disregard the Lanham Act. The utilization necessity serves a restricting capacity by anticipating trademark holders from declaring a summed up ideal to control language. Some direct through which a vendor or maker tries to benefit from a contender’s name acknowledgment does not add up to “use” for motivations behind a trademark encroachment guarantee. For instance, “spring up” promotions on the Internet or explicit item position in retail locations might be offensive to the holder of a trademark, however, such uses would not disregard the Lanham Act. See 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005).

The Lanham Act Elements

To win on a false-publicizing guarantee under the Lanham Act, an offended party must fulfill the accompanying components: (1) a false or deluding proclamation of truth; that is (2) utilized in a business notice or advancement; that (3) hoodwinks or is probably going to betray in a material manner; (4) in interstate trade; and (5) has caused or is probably going to make focused or business damage the offended party.

False or Misleading Statement of Fact

Two types of advertising claims are actionable under the Lanham Act: (1) statements that are literally false; and (2) statements that are literally true, but likely to mislead, confuse, or deceive.

Likelihood of Confusion analysis under the Lanham Act

Likely to cause perplexity, or to cause botch, or to swindle with regards to the alliance, association, or relationship of such individual with someone else, or with regards to the source, sponsorship, or endorsement of his or her merchandise, administrations, or business exercises by someone else . . . will be at risk in a common activity by any individual who trusts that the individual in question is or is probably going to be harmed by such act.”).

To win on a case of trademark encroachment under § 1114, a gathering must demonstrate: (1) that it has a protectable possession enthusiasm for the imprint; and (2) that the respondent’s utilization of the imprint is probably going to cause buyer perplexity. Dep’t of Parks and Recreation v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1124 (Ninth Cir. 2006). An offended party must have a “substantial, protectable trademark” before guaranteeing trademark encroachment. Zobmondo Entertainment, LLC v. Falls Media, LLC, 602 F.3d 1108, 1113 (Ninth Cir. 2010).For a trademark to be “valid and protectable,” it must be “distinctive.” Id. A trademark’s distinctiveness measures its primary significance to the purchasing public. Quicksilver, Inc. v. Kymsta Corp., 466 F.3d 749, 760 (9th Cir.2006) (quotation marks omitted).

Although the plaintiff in a trademark action bears the ultimate burden of proof that his or her mark is valid, federal registration provides “prima facie evidence of the validity of the registered mark and of the registration of the mark, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the registration,” and entitles the plaintiff to a “strong presumption” that the trademark is protectable. 15 U.S.C. §§ 1057(b), 1115(a); Zobmondo Entertainment, LLC, 602 F.3d at 1113-14.

The focal component of trademark encroachment is the “probability of perplexity” and the “issue can be recast as the assurance of whether the likeness of the imprints is probably going to confound clients about the wellspring of the items.” GoTo.com, Inc., 202 F.3d at 1205 (references and quotes overlooked). In assessing the probability of disarray between related merchandise or administrations, the accompanying elements (alluded to as the Sleekcraftfactors) are considered: (1) quality of the imprint, (2) vicinity or the merchandise or administrations, (3) likeness of the imprints, (4) proof of real perplexity, (5) the advertising channels utilized, (6) the sort of merchandise or benefits and the level of consideration liable to be practiced by the buyers of the respondent’s item, (7) litigant’s purpose in choosing the imprint, and (8) the probability of extension of the product offerings. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (Ninth Cir. 1979). Be that as it may, the Sleekcraft components are non-comprehensive, and ought to be connected adaptably, especially with regards to Internet trade. System Automation v. Propelled Systems Concepts, No. 10-55840, 2011 WL 815806 (Ninth Cir. Blemish. 8, 2011).

Under 15 U.S.C. § 1117(a), when litigant demonstrations unshakably in its encroachment of another’s the trademark, the Court may grant up to treble harms to the offended party on the off chance that it finds that lost benefits are deficient. Taco Cabana Int’l Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1127 (fifth Cir. 1991). At long last, the court may grant sensible lawyers’ expenses and expenses in the event that it confirms that the trademark encroachment case is “outstanding” under 15 U.S.C. § 1117(a).

Business Advertising or Promotion

The meaning of business publicizing or advancement under the Lanham Act is generally expansive and, notwithstanding clear ads, can incorporate web promoting, marks, and even a few deals introductions to gatherings of clients or potential clients. This component is normally a really explicit request.

prone to misdirect shoppers and impact their item or administration decisions. Unlawful promoting may incorporate, in addition to other things, false or misdirecting:

• names
• flyers and other special materials
• composed notices
• TV and radio advertisements
• email, site, web-based social networking, and other web advertisements and advancements
Trademarks that confound or mislead shoppers may likewise establish false promoting infringing upon the Lanham Act.

Lanham Act False Advertising Litigation

So as to win in a bogus promoting Lanham Act claim, an offended party must set up that:
• it endured business or aggressive damage
• the damage came about because of false or deceiving explanations of reality utilized by a rival in publicizing or limited time materials in interstate trade
• the false or misdirecting proclamations were probably going to substantially betray or befuddle shoppers
Notwithstanding when promoting articulations are actually valid, they can damage the Lanham Act whenever made in a deceptive or befuddling way.

Significant explanations may include:
• immediate and unequivocal false or deluding analysis of an offended party’s matter of fact
• near promoting that erroneously proposes or depicts a contender’s item or administration as equivalent to or superior to that of the offended party’s
Evident distortions (puffery or overstatement) that a sensible purchaser is probably not going to accept don’t comprise false or misdirecting promoting under the Act.
Deceives or is Likely to Deceive in a Material Way
A court will assume that a truly false notice beguiles in a material manner. Offended parties attesting a Lanham Act guarantee for deceiving however evident explanations face a higher weight: They should ordinarily indicate extraneous proof—like a review, for instance—that exhibits the deceptive impact of the notice. At long last, a few courts have held that an offended party need not indicate outward proof of materiality where respondent’s Lanham Act infringement is headstrong or in dishonesty.

Aggressive or Commercial Injury

To get injunctive alleviation, an offended party need just show undermined damage; real damage isn’t required. Be that as it may, to recuperate harms under the Lanham Act, an offended party must show genuine damage from the tested notice. The business about a contender’s matter of fact or item. A PC producer’s false proclamation that a contending PC creator delivered a sub-par item is a case of this sort of Lanham Act damage.
The U.S. Preeminent Court has likewise translated the Act to ensure organizations against contenders’ false/deceiving proclamations about business other than the offended party’s (i.e., a non-contender) that harm the offended party’s matter of fact. This may happen, for instance, if a PC maker (the respondent) issues a false and harming articulation about a segment provider (a non-contender) utilized by the producer’s rival (the offended party). In spite of the fact that the litigant did not legitimately condemn a contender or its item, the respondent’s rival (the offended party) may lose deals because of the harming explanation about its provider.

Harms for Trademark Infringement?

An offended party who demonstrates the majority of the components of trademark encroachment or “probability of perplexity” can recoup as harms any benefits gotten by the litigant because of their utilization of the imprint, any real harms endured by the offended party, and the expenses of the claim. 15 U.S.C. § 1117(a). A court may grant lawyer’s charges to offended parties in “remarkable cases.” Intentional utilization of a fake imprint in specific conditions can result in a harm grant equivalent to multiple times the respondent’s benefits. Courts may likewise arrange the pulverization of encroaching materials. 15 U.S.C. § 1118.

What Defenses are Available to a Trademark Infringement Claim?

A litigant blamed for encroaching an enlisted trademark can offer a few barriers under 15 U.S.C. § 1115(b), including:
•The trademark enlistment was false;
•The offended party relinquished the imprint;
•The offended party gave the Respondent authorization to utilize the imprint;
•The imprint is only spellbinding of the item or administration, and thusly not expose to Lanham Act assurance; or
•The respondent was utilizing the imprint, without information of the offended party’s utilization, before the date, the imprint was enlisted with the USPTO.
The majority of these safeguards additionally apply to supposed encroachment of an unregistered trademark.

Amazing as in it will manage the cost of you broad influence in seeking after and preventing a contender from encroaching on your trademarks. Likewise‚ on the off chance that you are a potential respondent and you are being blamed for encroaching on the characteristic of a competitor‚ you should continue with alert and work with your lawyers to completely comprehend your presentation and potential resistance.

Alleviation in False Advertising Lanham Act Lawsuits

Offended parties in false publicizing Lanham Act claims may get directives keeping litigants from:
• proceeding in-advance false promoting, and/or
• doing compromised false publicizing
Courts may likewise arrange litigants to distribute revisions of false or misdirecting proclamations and to pay offended parties harms for misfortunes brought about by real business or aggressive wounds.

Lanham Act Violations Lawyer Free Consultation

When you need legal help with Lanham Act Violations, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
itemprop=”addressLocality”>West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is A Patent?

What Is A Patent

A patent is a right granted to an inventor by the federal government that permits the inventor to exclude others from making, selling or using the invention for a period of time. The patent system is designed to encourage inventions that are unique and useful to society. Congress was given the power to grant patents in the Constitution, and federal statutes and rules govern patents.

The U.S. Patent and Trademark Office (USPTO) grants patents for inventions that meet statutory criteria. The following provides a general overview of what a patent is.

Patent Categories

There are three different kinds of patents: utility patents, design patents and plant patents.

1. Utility Patents: The most common type of patent, these are granted to new machines, chemicals, and processes.

2. Design Patents: Granted to protect the unique appearance or design of manufactured objects, such as the surface ornamentation or overall design of the object.

3. Plant Patents: Granted for the invention and asexual reproduction of new and distinct plant varieties, including hybrids (asexual reproduction means the plant is reproduced by means other than from seeds, such as by grafting or rooting of cuttings).

For an invention to qualify for a patent, it must be both “novel” and “non-obvious.” An invention is novel if it is different from other similar inventions in one or more of its parts. It also must not have been publicly used, sold, or patented by another inventor within a year of the date the patent application was filed. This rule reflects the public policy favoring quick disclosure of technological progress. An invention is non-obvious if someone who is skilled in the field of the invention would consider the invention an unexpected or surprising development.

Naturally occurring substances and laws of nature, even if they are newly discovered, cannot be patented. Abstract principles, fundamental truths, calculation methods, and mathematical formulas also are not patentable. A process that uses such a formula or method can be patented, however. For example, a patent has been granted for an industrial process for molding rubber articles that depends upon a mathematical equation and involves the use of a computer program.

A patent cannot be obtained for a mere idea or suggestion. The inventor must have figured out the concrete means of implementing his or her ideas in order to get a patent. A patent also will not be granted for an invention with no legal purpose or for an unsafe drug.

Usefulness

An inventor applying for a utility patent must prove that the invention is useful. The invention must have some beneficial use and must be operable. A machine that will not operate to perform its intended purpose would not be called useful, and therefore would not be granted a patent. A useful invention may qualify for a utility patent only if it falls into one of five categories: a process, a machine, a manufacture, a composition of matter, or an improvement of one of these.

A process is a method of treating material to produce a specific physical change in the character or quality of the material, generally an industrial or technical process. A machine is a device that uses energy to get work done. The term manufacture refers to a process in which an article is made by the art or industry of people. A composition of matter may include a mixture of ingredients or a new chemical compound. An improvement is any addition to or alteration of a known process, machine, manufacture, or composition.

What is Patentable?

These categories include practically everything made by humans and the processes for making the products. Examples of things that are patentable include:

• Computer software and hardware;

• Chemical formulas and processes;

• Genetically engineered bacteria, plants, and animals;

• Drugs;

• Medical devices;

• Furniture design;

• Jewelry;

• Fabrics and fabric design; and

• Musical instruments.

Patent Protection

Unlike a copyright, a patent does not arise automatically; an inventor must apply for a patent. The inventor must apply within one year of publicly disclosing the invention, such as by publishing a description of the invention or offering it for sale. An inventor, or his or her attorney, generally makes a preliminary patent search before applying for a patent to determine if it is feasible to proceed with the application. The application and a fee are submitted to the U.S. Patent and Trademark Office, where it is reviewed by a patent examiner.

If a patent is granted, the inventor must pay another fee, and the government publishes a description of the invention and its use. Only a patent attorney or patent agent may prosecute patents before the PTO. Before a person may be licensed as a patent attorney or patent agent, she must have a degree in certain technical or scientific fields.
Utility and plant patents last for 20 years from the application date; design patents last for fourteen years. If the owner of a utility patent does not pay maintenance fees, the patent will expire earlier. After a patent expires, the invention becomes public property and can be used or sold by anyone. For example, after the patent on Tylenol expired, other pharmaceutical companies began producing a generic version of the drug.

Infringement

If an inventor thinks someone has used his or her patented invention without permission, he or she may bring a lawsuit against the infringer. If the court agrees, it may award the patent holder costs, attorney’s fees, damages in an amount equal to a reasonable royalty, and an injunction (an order prohibiting another person from infringing the patent). An action for infringement can be time-consuming and costly, so infringement cases often are settled.

Intellectual Property Lawyer Free Consultation

When you need legal help with a patent, intellectual property, copyright, trademark other other matter, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
itemprop=”addressLocality”>West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Can I Use A Logo For Personal Use?

Can I Use A Logo For Personal Use?

Logos serve to represent a given organization or company through a visual image that can be easily understood and recognized. A logo generally involves symbols, stylized text or both. Logos are often created by a graphic artist in consultation with a company and marketing experts.

Three categories of logos exist and are often used in combination. These three categories are:

  • Ideographs – freeform images that can be entirely abstract.
  • Pictographs – symbolic, representational images.
  • Logotypes – simple, textual representations, like a company’s initials.

As a key part of an organization’s identity, a logo must try to communicate the brand essence of a company or what the organization represents. This makes designing logos a critical job for a graphic designer and is often a creative process that is heavy in research and consultation. For international organizations, cultural differences in symbolism or the associations of colors must be considered.

A logo isn’t intended to explain or directly sell a company. Instead, its sole purpose is to identify the company in a way that is memorable and familiar. For example, Apple uses a bitten apple as its logo. The bitten apple does not explain what the company does or sells in any way, but it is distinctive and recognizable.

A logo is meant to be long-term as it is intended to become familiar to customers and promote brand loyalty. As a result, logos are generally not redesigned very often.

1. Simple

Simple logos are the ones people can recognize as soon as they see them. The simplest logos are the ones people remember the most.

2. Scalable

A great logo should be simple enough to be able to be scaled down or up and still look good.

3. Memorable / Impactful

A great logo should be impactful. You want to capture your viewer’s attentions and leave an impression (a positive impression, hopefully).

4. Versatile

A great logo should look equally good on any web device and on any kind of print material.

5. Relevant

A great logo should be relevant to your practice. It has to have meaning that relates to the work you are doing.

A logo makes you stand out from the competition

Perhaps the most fundamental function of a logo is giving your business a unique mark that differentiates you from other businesses. This is especially important if your business has competition (which 99.9% of them do). Before you get a logo for your business you’ll want to research what your competitors’ look like so you can position yourself. Check out how the Cactus Dental logo separates themselves from the sea of cliché tooth industry by taking a feature unique to their geography and turning it into a toothbrush.

A logo identifies key information about your business

Along with demarcating your business, a good logo also provides your customer with some crucial information about your company: it can communicate the industry you exist in, the service you provide, your target demographic and your brand values.

For example, a company might use circuit imagery into their logo to show that they operate in the software industry. Or they might use a specific color to communicate they are committed to being green/environmental. Or they might use a stylish font to highlight that they are luxurious. Check out how Wild Hearts uses an image of a book with a heart in it to show that their business specializes in romance novels

When Do You Need Permission to Use a Logo?

A logo or trademark is any photograph, word, or symbol used to identify a brand, service, or product. You need permission to use a logo unless it is for editorial or information purposes, such as when a logo is used in a written article or being used as part of a comparative product statement.

Other than these two instances, you should never assume you can use a trademarked logo. A person or company should never use a trademark or logo without written permission from its owner. To get permission, write a letter to the trademark owner. Include a description of why you are asking and how the logo will be used. Third parties should never use someone else’s logo without a licensed agreement, including program and corporate logos.

In certain cases, a person or company involved in logo programs give third parties standing permission to use their trademarks. Depending on the company, the logo program may state any specific requirements and technological compatibility, company relationships, and program membership information. However, even then, third parties cannot use logos without a specific agreement.

More than that, trademarked companies often have resale policies for their products. A policy may indicate that the retailer or reseller can never change the trademark or corporate logo appearing on company products. Trying to replace a company’s logo with your own goes against the company’s written policy and is never allowed without a written agreement.

Why Is Getting Permission to Use a Logo Important?

First of all, getting permission to use a trademark or logo is important because doing so provides legal protection. A trademark naturally grants legal protection to its owner against anyone using it unlawfully. However, receiving permission gives you the legal right to go ahead and use it without worrying about any repercussions.

The United States trademark law as stated in the Lanham Act allows a non-owner of a registered trademark to make “fair use” of it without permission. Fair use includes using a logo in editorial content, among other situations.

You also don’t need to ask formal permission from a corporation to use its logo if the usage doesn’t create any impressions that the logo endorses or associates with another company. This scenario could result in a company complaint.

Unfortunately, there is no hard and fast rule determining what “fair use” actually means. The United States Patent and Trademark Office (USPTO) cannot decide if a certain use falls under the “fair” category or even advise on any trademark violations. When in doubt, it’s best to consult an experienced attorney to learn whether you should use a trademark or logo.

However, the Publishing Law Center states that, unlike a copyright, a trademarked logo’s ownership can last forever. Logos don’t even need to be registered as trademarks to be protected under current law. This means that using someone else’s logo without permission, even if it’s unregistered, is against the law.

When you decide that you need to use a trademark or logo, here are the steps you should follow:

  • Determine if gaining permission is necessary
  • Identify the logo’s owner
  • Identify which rights you need to request
  • Contact the owner with a description of your intended use and negotiate the required payment, if any
  • Receive your trademark permission in writing

Reasons to Consider Getting Permission to Use a Logo

Since it’s difficult to know what falls under “fair use,” here are some straightforward reasons why you would want to request permission to use a trademark or logo:

  • You want to use a third party’s logo or trademark to make and sell crafts. This will require a trademark license.
  • The logo’s size, usage, or placement implies that you are affiliated with the trademark owner, or that you’re being endorsed by the company. This is a direct violation of the owner’s trademark rights.
  • Commercial uses such as promotion, advertising, and marketing require written permission except in the cases of editorial or comparative advertising use. This can even include business-sponsored activities such as public presentations.
  • Even though using the logo as part of a comparative statement in an advertisement, such as comparing one fast food restaurant’s hamburger to another, falls under “fair use,” comparative statements tend to provoke companies into legal action. You may want to have a lawyer review the advertisement before publishing it and make any necessary changes to avoid a worst-case scenario.

When Is Permission Not Required?

Other than using a trademark or logo for editorial purposes or as part of comparative product statements, you don’t need to ask permission if the logo’s use will educate, inform, or express opinion protected under the Constitution’s First Amendment. This includes displaying a logo in a work of fiction, whether it’s a graphic novel or film.

As long as the fictional work doesn’t confuse the viewer as to who owns the trademark, using logos in fiction falls under fair use because it adds to a story’s realism. However, Hollywood has flipped this rule around by selling product placements to trademark owners as a means of advertisement, which has been a lucrative move.

Another gray area in trademark law is what’s known as trademark parodies. Generally speaking, you don’t need to request permission to imitate a trademark if you’re poking fun at it. One example is the parody newspaper The San Francisco Chomical, which parodies The San Francisco Chronicle. Offensive parodies can trigger lawsuits from the trademark or logo owner, so it’s important to weigh the consequences before going ahead with your trademark parody.

There are also circumstances where you can use media logos on your website without violating trademark rights and opening yourself up to infringement claims. Just remember that you cannot confuse customers into thinking you own the logo, so it’s best to display such trademarks with “as seen in” phrases.

In general, you won’t run into trademark parody problems if the parody:

  • Doesn’t confuse consumers; they get the joke and know that it doesn’t come from the original trademark owner
  • Doesn’t compete directly with the trademarked product
  • Does parody the trademark or logo, which means it pokes fun specifically at the trademark

Examples of Ways Someone Can Use a Trademark without Permission

Competitors and individuals don’t need written permission to use a logo if the use falls under the following reasons:

  • Descriptive use. Adjectives can be trademarked, but you might have a hard time complaining about competitive use. For example, if you trademark the name SPEEDY for your oil change services, but a competing business uses the phrase “speedy service,” that’s not considered a violation. A trademark does not give you monopoly rights over words.
  • Comparative use. One of the most high-profile comparative uses was when the Pepsi Challenge pit Pepsi against its competitor Coca-Cola. As long as the trademark display is correct, any competitor can use your trademarked logo to compare benefits or effectiveness.
  • Collateral use. If you own a lawn mower repair shop, you can legally advertise the fact you repair Brand X lawn mowers, even though you don’t make those lawn mowers or own the company’s logo. You just can’t suggest that you have a relationship with the company or that the company has approved of you.
  • Nominative use. A person can use someone else’s trademark as a reference without infringing. For example, if you need to use the band name the Rolling Stones in a profit-making venture, you’re allowed to do so. That’s because there are only so many ways you can describe the legendary band. However, there are limitations. You can’t overuse the trademark or logo. So, if you tried to sell Rolling Stones t-shirts, you’re infringing, but you can organize an unauthorized fan club and sell memberships.

Copyright and Logos

In order for a work to have copyright protection, it must reach a requisite level of creativity. Many logos, however, do not. Since copyright can’t protect a name, colors or the design of the logo, most simple logos simply do not have the required level of creativity to be considered copyrightable. However, many ornate or artistic ones do.

And here lies the confusion with logos. Many of them actually qualify for both trademark and copyright protection. In fact, the entire Omega case hinges in part upon a logo stamped onto a watch being copyright protected (thus making the import of the watch a violation of the copyright).

In short though, if a logo would qualify for copyright protection as a piece of artwork separate from its use as a corporate identifier, it is copyright protected. Nothing in the law makes the two rights mutually exclusive so many logos can and are enforced using both trademark and copyright.

Logo Lawyer Free Consultation

When you need legal help regarding a logo, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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