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Intellectual Property (IP)
Latoicha Givens, founder of the IP law firm Phillips Givens, LLC and blogs at iplaw101.com
Wendi Seltzer is an attorney and law professor specializing in trademark (TM)and copyright (CR) law. She blog at legaltags.com
Resources:
Chillingeffects.org
Creativecommons.org
IPlaw101.com
Cover the following 4 topics:
1) Protect your IP rights
2) Protecting others IP rights
3) Privacy issues
4)Your responsibility as a site owner
IP entails: Trademarks, Copyrights and Trade secrets (do not blog or disclose to public). CR and TM are the most common forms of IP.
Copyright – covers blog expression a.k.a creative expression, design, photo, content. It does not include facts, functionality, or lists of restaurants. Reviews are protectable expression since they are personal expression.
CR protection is automatic – do not need to register to get the basic level of protection, which protects from others use within your region.
A registered CR gives you full protection nationwide. Another benefit is once you license a CR, you can allow others to use it freely in exchange for compensation. Also, it allows you to go forward directly with statutory damages, meaning you don’t have to prove others used your work.
TM: protects unique identifiers of goods/services: company names, logo, tag lines --- coin phrases. Items unique to your particular blog.
Question: If you have TM on your blog name and have a tag line, do you need to resubmit that tagline for TM? Yes. A TM on your blog name only protects your blog name and nothing else.
Why you should protect your TM?
You can loose your TM rights if you do not defend your TM. For example, if you came across someone using your TM items and do not reach out to the user to stop using it, it’s no longer considered unique. You also miss out on royalties, which means income you are entitled to and marketing opportunities, which is specific to how your brand is identified and lastly, you loose business, meaning users that would have otherwise been on your site, are now getting the same content on another bloggers site, lost competition and diverted traffic from your site to competitions site and competition can steal customers.
Question: How do you go about obtaining TM?
Common Law right – if you’re the first to use it, it automatically your basic right within your region, no registration required.
If registering your TM, go to the US Patent & Trademark Office, which covers rights protected across the entire US.
Question: Tagline: do you go about obtaining a CR or TM and what steps would you take to protect it?
Something that identifies the source and helps people identify a brand would constitute a TM. If people identiy your bog through a tagline, it’s a TM. While you are in the process of filing a TM with the USPTO, place a (TM)or SN behind the content, which lets people know you are in the process of registration.
You can also use google search to see how your TM is being used. If you see someone using our TM, you can send them a cease and desist letter asking them to take down the TM’d content.
Question: How do you protect a common phrase such as “be the change” or something out in public domain forever? Can you TM it?
If the phrase is descriptive and used in conjuction with an unique meaning or different context, you can TM it.
A TM only protects a source identifying the function of a mark or a source identifying the generic good.
TM fair use permits you to use it if you are using a common phrase accurately to describe something, or expressive purposes for parody. Therefore, common phrases and words used in unique context can be TM’d.
Question: If you have registered TM for interactive face-to-face educational workshops, and someone is conducting an online workshop using the same content under a different medium, how do you protect the interactive face-to-face workshop from delineation?
Send them a cease and desist immediately.
RESPECTING OTHERS RIGHTS:
Respecting others rights: When are you fairly using the material and when are you reaching the line of infringement?
CR are not absolute. They are there to prevent others from reproducing your work. They can prevent others from commenting, quoting, reproducing a screenshot from a movie/picture we have seen. If you’re quoting a text, artwork, you can make references visually.
Fairness is very case andcontext specific. CR fair use is centered around purpose and character of use . Are
