patents for fire dancers and sorcerers

people easily understand that “primitives” cement their social order by believing in ghosts and spirits, and gathering each full moon to dance together around the campfire.  what we fail to appreciate is that our modern institutions function on exactly the same basis.  modern business-people and lawyers are, in fact, powerful sorcerers.  the principal difference between them and tribal shamans is that modern lawyers tell far stranger tales.

yuval noah harari, sapiens - a brief history of humankind

patent attorney

patents

patents are temporary government monopolies for qualifying inventions.  they trace their roots to unique culinary dishes in ancient greece and glass making in medieval europe.  and you know those folks were dancing around fires. there were some early kinks:  the english crown once granted a patent for salt in order to raise some dough (super bad pun; but, was the patent worth its salt? ok, I’m finished).  that way of doing things turned out to be unsustainable.  more objective patent grant requirements were developed. today, an invention must be new and nonobvious—among other requirements—to qualify for a patent. 

patentable inventions include apparatuses, compositions, plants, methods, and miscellaneous, whiz-bang contraptionry.  there are different kinds of patents:  utility patents protect functional or utilitarian aspects; design patents protect designs.  most patents are geographically bounded and granted by country.  some types of patent applications—such as u.s. provisional patent applications or international pct applications—act as a type of option for pursuing a patent: they start the process, then allow inventors some time (usually between 12 and 30 months) for market testing and deciding whether and how to continue.  the above result in different paths and strategies to pursuing patents.

whether to pursue a patent

there are many things for fire dancers and sorcerers to consider in deciding whether to pursue a patent.  foremost among these should be business objectives.  patent pursuit takes time and money —it may not always make sense.  however, in many cases, a patent may be key to business objectives.  for example, if it’s important to monopolize a product, product feature, or market, a patent may translate into a significant competitive advantage.  patents may also provide defensive security for business supply chains.  they can also signal strength, due diligence, and novelty to potential customers, investors, and financiers.  additionally, patents build appraisable assets and value within businesses.  a good patent attorney can help an inventor or business determine whether to pursue patent protection and the best way to go about it. 

the process

to successfully pursue a patent, you should use a skilled patent attorney (or agent).  saving money and trying to master difficult, new things is worthwhile.  but, trying to get a patent is not a reasonable diy project. significantly, in the 1892 case of topliff v. topliff, the u.s. Supreme Court stated that a patent application:

is one of the most difficult legal instruments to draw with accuracy; and, in view of the fact that valuable inventions are often placed in the hands of inexperienced persons to prepare such specifications and claims, it is no matter of surprise that the latter frequently fail to describe with requisite certainty the exact invention of the patentee, and err either in claiming that which the patentee had not in fact invented, or in omitting some element which was a valuable or essential part of his [or her] actual invention. 

(a more recent commentator follows-up that 1892 was “child’s play” compared to the present.)

the best patent attorneys begin the patent process by identifying and clarifying client and business objectives.  a patent attorney helps the inventor understand the various paths towards patentability, as well as the strategic pros and cons of and cost estimates for each path.  a good patent attorney conducts invention analysis—the process of determining the potential, patentable scope of invention.  a patent attorney also conducts prior art searches—investigations of prior, related inventions to identify potential risks, determine patentability, and form strategies for drafting and tailoring the patent application. 

when to start

timing is very important when considering patents.  there are several concepts to keep track of, both the us and abroad.  to start, the first person to file a patent application has the overwhelming initiative in obtaining invention rights.  this is the consequence of what is known as the first-to-file rule.  also, if you make an invention publicly available, offer it for sale, or sell it, and wait for a year to file a patent application in the u.s., you are not entitled to a patent and cannot get one.  this is known as the on-sale bar.  the consequences of public availability and sale (before patent application) are even more severe outside of the us.  In most of the world, if you even divulge your invention before filing the patent application, you can’t get a patent.  so, it is much better to decide whether to file a patent application early on.  in contrast, there is such a thing as filing a patent application too early, before the invention is sufficiently developed.  (although any number circumstances may affect timing, i typically tell inventors that i prefer to start the patent application no earlier than when the invention is 90% complete.)

so, grab your fire dance pants, get a good tribal shaman on retainer, and consider whether patents make sense as you go about your powerful, modern-day sorcery. 

protecting your brand portfolio: four steps for a proper trademark audit

a trademark audit is a review of a brand owner’s current trademark portfolio to ensure that the brand owner’s trademark usage and trademark holdings are sufficient, comprehensive, and accurate. good practices require that a trademark audit be conducted yearly, or any time an existing trademark portfolio is acquired, even if there has already been ip due diligence. the primary goal of conducting a trademark audit is to ensure that there are no deficiencies in protection.

trademark audit step 1: check for common law use and proper use of registered trademarks

the most basic trademark audit involves a thorough review of a brand owner’s own printed materials, product packaging, hang tags, displays, advertisements, promotions, and online presence, including its website and social media accounts. the existing trademark portfolio is compared to all current trademark usage, to ensure accurate and comprehensive trademark protection.

utah trademark attorney

trademarks are protected by a registration, a pending application, or documented common law use

flagship and important brands should already be protected by registered trademarks. trademark applications should be filed for new brands that are currently in use or expected to be used in the near future. use is generally a pre-requisite to securing trademark protection in the u.s. however, u.s. trademark law also permits a brand owner to ‘reserve’ a trademark for a product/service that they are in the process of developing or expect to launch, by claiming an intent-to-use (“itu”) filing basis. a trademark filed based on itu gives notice to third parties that the brand owner is claiming rights in the trademark, even though the mark is not yet in use. the itu trademark application will only proceed to registration, once it has been used in the u.s.

common law trademark protection

u.s. law grants a measure of protection to trademarks that are in use in u.s. commerce but are not the subject of a trademark application or registration. this type of trademark protection is referred to as ‘common law protection.’ to take advantage of common law trademark protection, a brand owner must keep accurate records and track the dates of first use along with the locations where the trademark has been used.

while useful, common law trademark protection in the u.s. is limited to the geographic area where there is evidence of use. a lack of sales or distribution to a location may mean no common law protection. therefore, a federal U.S. trademark registration is preferable because it has a nationwide reach.

word marks and stylized word marks

if registrable, a word mark should always be the primary focus for trademark protection. this is because a word mark protects use of the trademark in any font, style, size, layout, or color. however, if a trademark is used in a specific or unique font or stylized depiction, this specific usage should also be registered to ensure the maximum breadth of protection.

examples:

COCA-COLA® and  

the_logo_story_01122014_596x334.jpg
 

WHOLE FOODS MARKET® and 

Whole-Foods-Logo_1.jpg
 

a trademark registration or application covers all relevant goods and services

all registered trademarks should be reviewed to ensure that goods and services in use with the subject trademark are covered by an application or registration. any goods or services no longer in use should be similarly removed from a trademark registration.

it is not uncommon for successful brands to expand the offering of products or services of an existing trademark. many brand owners mistakenly believe that their trademark registration covers any new goods or services offered in connection with the trademark. however, a trademark registration is static, and its breadth of protection does not automatically expand to match use of the trademark. additionally, u.s. trademark law does not permit amending an existing trademark registration to add new goods or services.

example:

SLEEPYTIME is registered for pillows in class 20. the brand owner is now also selling SLEEPYTIME branded bed sheets. the brand owner assumes that their current registration will also cover bed sheets. however, bed sheets is classified in class 24, and would require a new trademark application to protect these goods with a trademark registration.

if a third party files a trademark application for TIME TO SLEEP for bed sheets, the uspto should cite the existing SLEEPYTIME trademark registration as a barrier to registration of TIME TO SLEEP for bed sheets, as the marks are confusingly similar and the goods are highly related, despite being in separate classes.

while the uspto is a good first line of defense, it is not ideal to rely on it to guard against confusingly similar trademarks, since a trademark examiner may not view TIME TO SLEEP as confusingly similar to SLEEPYTIME or could fail to cite the existing registration because the goods are in different classes. to better guard against this type of infringement, it would be prudent and less expensive to file a new trademark application for SLEEPYTIME for bed sheets, rather than have to oppose a trademark application for TIME TO SLEEP.

the converse is also true: any goods and/or services no longer being offered in connection with a registered trademark must be deleted from the trademark registration. deletion of goods and services that are no longer in use is typically done during trademark maintenance. the consequences of failing to delete goods or services that are no longer in use include:

  • it can increase the success of a cancellation action filed by a third party.

  • in some cases, it may be considered fraud on the uspto and subject to serious penalties.

  • finally, the uspto has started to conduct its own trademark audits, and may request that a trademark owner to submit proof of use of the mark in connection with randomly selected goods or services listed in the trademark registration. If such proof cannot be submitted, the uspto may cancel part or all of the registration.

checking licensees’, distributors’ and resellers’ usage to prevent a loss of protection

after conducting a review of the brand’s own materials, a similar review should verify use by authorized licensees, distributors, and resellers. even authorized trademark users are often guilty of incorrect or inconsistent use, which may be harmful to a brand. a brand owner’s failure to properly control and oversee its licensee’s use of its trademarks could result in the invalidation of its trademarks.

trademark audit step 2: ensure correct marking and use

trademarks are correctly marked

the tm and registration notices (commonly circle r) notify the public, consumers and competitors that the brand owner is asserting rights in the trademark.

trademarks used in common law that are not the subject of a trademark registration should be marked with the ™ symbol. similarly, trademark applications pending in the uspto should also be marked with the ™ symbol. once the trademark has registered, all uses in connection with the mark such as product packaging, labels, displays, websites, and social media should be marked with a registration notice.

examples of acceptable marking include:

  • ®

  • registered, u.s. patent and trademark office; or

  • u.s. pat. & tm. off.

the registration notice should be used after the entire trademark as it is registered. a word or phrase not subject to the trademark registration should come after the ®.

example:

incorrect: LOGITECH MOUSE®

correct: LOGITECH® MOUSE

a registration notice should never be used in conjunction with a common law trademark or a pending trademark application because it may result in a weakened position in the event of litigation or may form the basis of an opposition or a cancellation action.

for trademarks that are no longer being used in u.s. commerce, all registration notices should be phased out and removed from websites, packaging, displays, labels and tags, both in print and online. continued use of registration notices can be viewed as a fraudulent claim of protection.

trademarks are correctly used

trademarks must always be correctly used to ensure continued protection and to avoid having the trademark becoming generic. a trademark that is generic cannot be protected by a trademark registration and is available for anyone to use. examples of trademarks that have become generic due to a loss of legal protection in the U.S. include: escalator, laundromat, and trampoline.

word marks should always be used as an adjective and not as a noun or a verb.

examples:

Incorrect: i will run you a XEROX®. [XEROX used as a noun]

Correct: I will run you a photocopy on the XEROX® machine. [XEROX used as an adjective]

Incorrect: I like to GOOGLE™ famous people. [GOOGLE used as a verb]

Correct: I like to run GOOGLE™ searches on famous people. [GOOGLE used as an adjective]

changes to registered Trademarks

in order to maintain protection, a trademark must be used as registered. a word mark may be used in any font, style, size, layout, or color. a design mark registered in black and white may be used in any color or size. these uses do not qualify as changes to the trademark.

examples of significant changes to a word mark include addition or deletion of words, punctuation, or spacing. changes to a design mark include any alterations to the design, even minor stylistic updates. if a trademark is no longer being used as it is registered, then an existing trademark registration can no longer be maintained and a new trademark application should be filed. it is better to file for a new trademark application before the existing trademark is due for maintenance, rather than after discovering that the existing trademark cannot be maintained because use of the mark does not match the trademark as registered. this way, there are no gaps in protection of the trademark.

in select cases, the uspto will permit changes to a trademark registration, if the uspto considers the change to be an immaterial alteration. examples of alterations that the uspto has permitted include:

  • modernizing minor stylistic changes to a design;

  • changing the placement of a word relative to a design;

  • removal of “THE” or “INC.”;

  • amending from one word to two or vice versa; and

  • removal of quotation marks.

trademark audit step 3: check for correct recordation of changes in ownership

a proper audit requires a careful review of the brand owner’s u.s. and foreign trademark portfolio to ensure that all changes in ownership have been accurately recorded with the trademark office and are up to date. this is especially important for a pending foreign trademark application that is the basis for a priority claim in the u.s. the priority claim may fail if a change of ownership is not timely recorded before the u.s. application is filed.

some foreign jurisdictions have mandatory recordation requirements, which means that any change in ownership must be recorded as soon as possible. similarly, in some jurisdictions, a failure to properly record current ownership or a license can make the trademark registration vulnerable to third party cancellation. it is important to check with foreign trademark counsel to ensure correct compliance with all applicable rules.

trademark audit step 4: foreign trademark protection

since trademark protection is territorial, a u.s. trademark registration does not have effect outside of the u.s. trademark protection should be contemplated in countries where brand owners are engaging in the following activities:

  • manufacturing

  • importing

  • distributing

  • selling

  • licensing

  • offering, or providing their product/service, or

  • where they intend to do so in the near future.

unlike the u.s., most countries do not require that a trademark be used as a prerequisite to securing a trademark registration. in many countries, trademarks are usually only vulnerable to cancellation between 3-5 years after registration, depending on the country.

trademarks in china – a special consideration

china should be a primary consideration when contemplating foreign trademark protection. it is common for bad actors to monitor the u.s. trademark database for new applications (or even existing registration) and to file an identical application in the chinese trademark office or in a related class. such a pre-existing application(s) or registration(s) can prevent a legitimate brand owner from securing protection of its own trademark in china. in some cases, the infringer uses the trademark application or registration as leverage to encourage the legitimate brand owner to “buy back” its own trademark. this is because it is usually difficult and expensive to oppose an infringing trademark through legitimate channels due to the chinese trademark office requiring a large volume of evidence that supports use of the trademark in china. such evidence is not always possible to secure or may not be persuasive because it does not qualify as ‘china-wide’ evidence. in a worst case scenario, the owner of an infringing trademark registration can register the trademark with chinese customs and prevent a legitimate brand owner from importing or exporting its goods in or out of china.

revisit existing foreign trademark protection

since businesses evolve, it is prudent to revisit early trademark filings and existing foreign registrations to ensure that the scope of protection sufficiently covers the goods and services and to prevent infringers from fraudulently registering the brand owner’s own marks.

a brand owner may consider additional protection for new and ancillary goods and services, and should be apprised of current filing strategies that prevent the registration of infringing trademark.

taking advantage of new International registration (ir) extension countries

owners of existing irs registered through the world intellectual property office (wipo) should consider whether it makes sense to designate any of the new countries that have joined the ir scheme in the years since their ir has registered. since 2013, 11 countries and one ‘group of countries’ have acceded to the madrid protocol and may now be designated through an existing ir. these countries include algeria, cambodia, gambia, india, indonesia, laos, mexico, rwanda, thailand, tunisia, zimbabwe, oapi (african intellectual property organization consisting of – benin, burkina faso, cameroon, central african republic, chad, congo republic, equatorial guinea, gabon, guinea, guinea-bissau, ivory coast, mali, mauritania, niger, senegal and togo). with afghanistan joining in 2018, and canada and hong kong expected to join in 2019, extending protection from the existing ir is a relatively simple and cost effective way to add these countries to a trademark portfolio.

conclusion

a trademark audit is the sum of many moving parts and should be conducted periodically to ensure the robustness of a brand’s trademark portfolio. all brand owners should consider having their trademark portfolio audited periodically. a trademark audit conducted by an experienced trademark attorney examines the current status of the brand owner’s trademark portfolio to ensure its holdings accurately and adequately protects the brand owner’s interests in the u.s. and abroad. the trademark landscape is constantly evolving so it is important that a trademark portfolio evolve with it. a trademark protection strategy deployed ten years ago may no longer be sufficient to protect the brand in the present.

author: alice denenberg, www.ipwatchdog.com, december 25, 2018 (reprinted with permission)

winter's myth, tweed, and trademark

in scottish mythology, cailleach bheur (or beira) is the queen of winter.  beira comes in different flavors.  in my favorites, she possesses a single eye capable of seeing beyond duality into the oneness of all beings.  she is guardian of the life force, keeping animals during the winter and seeds until spring.  she is also the goddess of death and rebirth; things can obviously get complicated from there. 

maybe less complicated are the weavings of beira’s subjects—the islanders of the outer hebrides.  for centuries, they have woven the clo-mor cloth (more commonly known as tweed) by hand to weather beira’s harsh winters.  traditionally, tweed is made from local wool washed in peaty water and colored with dyes from local plants and lichens, then processed and hand spun by local crofters.

lady catherine hebert of the isle of harris commercialized tweed during the industrial revolution.  she marketed it as a hard wearing and water-resistant cloth to landed gentry and aristocracy—including queen victoria’s inner circle.  for over a century afterwards, harris tweed dominated and set the standard for quality.  sherlock holmes wore it well, as did mr. toad and, more recently, the doctor and tommy shelby

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beira.png

with harris tweed’s success, inexperienced weavers, opportunists, and other gadges began marketing inferior or knock-off tweed.

in the early 1900s, isle of harris merchants took action and registered their trademark—the orb—to identify tweed products that were hand-spun, -woven, and -dyed by outer hebrides crofters.  in 1993 british parliament further strengthened the harris tweed trademark with supporting legislation. 

today, every 50 metres of harris tweed (still hand spun) are checked by a harris tweed inspector before it is stamped by hand with the orb trademark.  harris tweed is sold under successful brands ranging from brooks brothers, drake’s, and nike to much smaller, lesser known companies.    

geamhradh sona (happy winter).

what start-ups need to know about intellectual property

as any entrepreneur is well aware, the early stages of a new business venture are an incredibly busy time. entrepreneurs must focus on building the core team, structuring the company, attracting investors, developing the product/service, and developing key partnerships, sales channels and marketing plans. these tasks are typically all-consuming for the founders, taxing both their financial and time resources. 

during this time, it may be a challenge to simultaneously focus on intellectual property issues. however, this early time period is also a critical time for ensuring that a business takes steps to protect its core intellectual property and avoids the risk of third party intellectual property issues.

today, more than ever, having a solid understanding of intellectual property and developing an ip strategy that aligns with the business is a crucial part of building a new venture on a solid foundation. 

this article includes an overview of the different types of intellectual property and provides advice to start-up companies on how to secure their own intellectual property as well as protect against intellectual property risks from others.

the three basic types of intellectual property that startups should understand are:

  • patents

  • trademarks

  • copyrights

patents

not every startup business will be best-served by investing its resources in building a patent portfolio, but the question of whether to pursue patent protection warrants a hard and early look. knowledge of the role of patents is critical for two reasons:

  • to protect your own business and inventions from your competitors; and

  • to avoid the risk of being exposed to assertions of patent infringement by competitors and other third parties.

it is important for startups to understand the different kinds of patent protection and how they fit into their business.

utility patents can be obtained for processes, machines, articles of manufacture, or compositions of matter that are deemed new, useful and non-obvious. the traditional subject matter of such utility patents covers tangible, technical inventions, such as improvements to client-server systems, motors, radios, computer chips and various technical product features. for example, boeing’s us patent no. 7,142,971 is a patent that covers methods of remotely controlling a vehicle. patents can also be directed at new product features and functions. as another example, facebook’s us patent no. 8,171,128, titled “communicating a newsfeed of media content based on a member's interactions in a social network environment,” protects its news feed feature.

a separate category of patent, the design patent, may be sought to protect ornamental (non-functional) designs. some examples of notable design patents include apple’s d604,305 covering the design of its iphone interface and lululemon’s d662,281 design patent covering its yoga pants.

the role of patents

although patents are the most expensive and time-consuming type of intellectual property to obtain, they also provide the best scope of protection. a patent provides its holder with the exclusive right to make, use or sell an invention.  this means that it can exclude a competitor from making or selling the patented invention, irrespective of whether or not the competitor copied the invention or even previously knew of the patent.  for this reason, a patent that covers an important feature that drives consumer demand and/or distinguishes one’s product or service from that of competitors, can be very valuable.

benefits of patents for a young business

patents may provide a number of benefits to young businesses. for example, a robust patent portfolio or a key patent can help attract investors, since it may serve as barrier to entry by competitors. furthermore, the filing of a patent application will enable the company to advertise “patent pending” along with its product or service.  in addition to potentially attracting investors, the “patented” or “patent pending” labels may deter would-be competitors, or force those competitors to adopt different designs and technologies.

as indicated above, once a patent issues it may be used to stop competitors from entering the field and allows for recovery of damages for infringement. patents can also help the finances of a business by providing an opportunity to generate revenue from licensing. 

how to obtain a patent

a patent is obtained by filing an application with the united states patent and trademark office. the application includes a description of the invention accompanied by drawings, followed by a list of the elements that form the invention, called the patent claims. the patent claims set out the metes and bounds of the invention.  third-party products or services that practice the elements of a claim infringe the patent.

when a patent application is first filed, an examiner is assigned to it. the examiner will reject or allow claims based on an assessment of their patentability, and the patent applicant will have an opportunity to respond to the examiner’s decisions. this back-and-forth with the patent office, known as prosecution, can take a number of years and is best done by an experienced patent attorney who understands the procedures, the legal requirements and the art of drafting strong patent claims.

impact of the america invents act

changes in the patent law implemented by the america invents act (aia) half a decade ago have impacted the leading practices for businesses looking to file for patent protection. first, the u.s. is a “first inventor to file” system. this incentivizes early disclosure of inventions and early filing of patent applications.

when two people independently come up with the same invention, the first inventor to file for a patent on his or her invention is awarded the patent, regardless of which actually invented first. for this reason, it is important for businesses to streamline operations to reduce the time from invention to filing of patent applications.

early and cost-effective filing can be achieved through provisional applications, which are essentially invention disclosures that can be converted to full patent applications within one year.

in addition, the aia also provides for a prioritized examination procedure, which expedites the patent examination process. While the use of prioritized examination is more costly up-front, it may reduce overall legal expenses, since a patent can be obtained within one year.

avoiding infringement of other patents

a second important aspect that startups should consider with respect to patents is a defensive one, i.e., avoiding infringement of the patents held by others. as a matter of practice, startups should conduct a patent search to verify that their business is free of patents that could be asserted against their product or service. the up-front cost of performing this search and related analysis is relatively minor and is offset by the potential for huge savings, both in terms of litigation costs and wasted investment in an infringing idea. the cautionary tale of vlingo underscores this point.

vlingo spent years developing voice recognition technology that led to talk of partnerships with google and apple. however, another voice recognition company, nuance, which held a patent on voice recognition, sued vlingo for patent infringement. although vlingo ultimately won the lawsuit, by then the company had already lost its potential partnerships, and the cost of defending the suit forced vlingo to sell its business to nuance. an early patent search could have revealed the nuance patent and may have allowed vlingo to take appropriate strategic steps to address the issue. for example, they might have been able to adopt a different design to avoid a run-in with nuance.

trademarks

trademarks take us into the world of branding.  trademarks serve to build brand awareness and business goodwill. they can impart consumer confidence in a product by its association with a brand the consumer recognizes and trusts. a trademark can be words, symbols, logos, slogans or product packaging and design that identify the source of goods or services. the coca-cola logo is one of the more famous trademarks. 

unlike patents, trademark rights are only acquired through use. even without registration, the symbols “tm” or “sm” may be used to accompany trademarks or service marks to designate products or services. however, only registered marks may be accompanied by the “®” symbol.

although registration with the us patent and trademark office is not required to gain trademark rights, registration provides certain important benefits to the trademark holder. for example, without a registration, the trademark rights are limited to the geographic area in which the product or service is marketed and sold, and protection begins only after the product or service is available for sale on the market.

in contrast, federally registered marks provide nationwide rights. registration also creates a prima facie case of validity of the ownership as well as an exclusive right to use the mark for specified goods or services. once registered, the owner of a mark can stop importation of infringing products through u.s. customs.

clearing and registering key trademarks

just as with patents, when seeking trademarks, businesses should be aware of whether their desired name, logo or domain name is already in use by others. searching for existing uses is known as trademark clearance, with the goal being to “clear” a desired mark for use. clearing the name and brand early on will reduce the likelihood of problems down the road.

startups should look to protect their brand early by clearing and registering key trademarks. registration is relatively quick and inexpensive, generally a few thousand dollars for a clearance search and subsequent filing for registration. a trademark application must specify the type of mark -- i.e., whether the mark consists of just words or includes a stylized design or even an identifying color or sound. the application must also specify the particular goods or services to which the mark will apply.

as the company grows, it will become increasingly important to police infringing uses of its marks. such efforts will help ensure that the business is not losing customers due to confusion with knock-offs.

copyrights

copyright is a form of intellectual property that protects the expression of ideas. books, music, art, photographs, architecture and even computer software can be protected by copyright. 

however, while copyrights protect the expression of ideas, they do not protect ideas or concepts themselves. for example, a copyright can protect a particular photograph of a bird, but others may still create their own photographs of the same type of bird.

another requirement for copyright eligibility is that the work must be “an original work of authorship.” facts, titles, phrases, and forms per se cannot be copyrighted.

exclusive rights to copyright owners

like trademarks, copyright registration is optional. as soon as a work is written or recorded or otherwise made “tangible”, it is considered to be copyrighted. us law provides various exclusive rights to copyright owners, including the rights to reproduce the work, prepare derivative works and distribute copies, irrespective of registration.

however, registration provides significant procedural benefits. critically, registration is necessary in order to file a lawsuit for copyright infringement. it is also necessary to receive certain remedies, such as statutory damages and attorney fees. registration also provides a presumption of originality and ownership, and it allows us customs to stop the importation of infringing or counterfeit works.

businesses should include the “©” symbol or the word “copyright” on all distributed materials. they should also include the year of first publication, the name of the owner, and the language “all rights reserved.”

businesses should consider registering any important materials so that the option of filing lawsuits is available to address infringement. registration can be filed online with the us copyright office for a nominal fee.

startups should also be careful to avoid using third-party photos, music, or writings on their website, marketing materials or products. such use could lead to a potentially costly infringement dispute with the copyright holder.

finally, because the author is the copyright owner by default, startups should take steps to ensure that they receive the rights to any copyrightable work created by employees or third-party contractors. the copyright act lists specific requirements for works for hire, and employment and third-party contractor agreements should include specific language to address ownership of any copyrightable works.

conclusion

while intellectual property issues may sometimes get brushed aside during the early stages of a business, developing a diligent and intelligent ip strategy early on is important.

startups should evaluate the types of intellectual property that can impact their business and strategically consider pursuing patent, trademark and copyright protection as appropriate. 

defensively, startups should also assess the intellectual property landscape of their business. that awareness should include clearance efforts to ensure that the company will not infringe the intellectual property of others, as it develops its products and services.

author: michael j. kasdan, the nat’l law review, september 25, 2018 (reprinted with permission)

juristat: statistic-enhanced patent application and prosecution for patent attorneys

data is the sword of the 21st century, those who wield it well, the samurai. - jonathan rosenburg

ignoring key information is inherently human.  for example, base rate neglect is hardwired into each of us. it makes us prefer narrative and description over more useful statistics in our decision-making.  we are also predictably bad at estimating probabilities because we look at small sample sizes and fall into bayesian traps.

these issues can be particularly problematic in the perilous and resource-intensive labyrinths of patent application and prosecution.  however, one service provider—juristat—offers a katana (or at least a wakizashi) to patent samurai looking to increase the likelihood of success for their clients. 

one analyst describes juristat as a company that “uses natural language processing to analyze public legal data and predict the future behaviors of actors within the legal system.”  more broadly, juristat is a web-based service provider that offers several useful data analytics tools to patent attorneys: 

first, juristat offers a claim drafting tool that can help patent attorneys predict the likely uspto art or examining unit that will be assigned to a future patent application based on its claim language.  a patent attorney can use this tool to anticipate and, by adjusting claim language, potentially pivot to a different and/or more favorable art unit before the patent application is ever filed. 

second, juristat offers a business intelligence tool that allows patent attorneys and patent applicants to examine and evaluate each other, including by using data on application numbers, types, and success metrics.

third—and the tool i find most useful—are patent examiner reports. this tool allows a patent attorney to perform detailed analysis of metrics for the examiner assigned to a patent application he or she is prosecuting.  example metrics include:

  • number of applications examined (including by year);

  • allowance rate;

  • allowance rate compared to that of the examiner’s overall art unit;

  • average number of office actions per application;

  • reversal rates on appeal;

  • most frequent companies or assignees before the examiner; and

  • most frequent prosecuting law firms before the examiner.    

within juristat’s patent examiner reports, a patent attorney can also keyword search patent applications before the examiner, as well as rejection types, and common responses.  more compelling is a dynamic and interactive graphical interface that allows a patent attorney to determine the baseline probabilities of future examiner decisions across various trajectories of prosecution points, including rejections and responses.  juristat calls this interface “detailed outcomes”, but in the pseudo-samurai tradition of this post, i prefer to call it the dynamic oracle of destiny:      

by providing extensive baseline statistics and probability analysis, juristat’s tools can enhance a patent attorney’s perspective, allow for more informed client-communication and decision-making, and increase the likelihood of successfully obtaining patent protection.     

spider sense: seeing how trademark mistakes can lead to competitive loss

exchange traded funds (etfs) are popular consumer investment products and make up a $5 trillion industry.  etfs can hold various assets and trade on exchanges like stocks.  state street corporation invented them in 1993.  what happened afterward is a valuable lesson in how trademark mistakes can lead to serious competitive loss.  importantly, it also lets me show a spider—a nethercreation widely feared and having intelligence and communication skills on par with cuttlefish or velociraptor.   

logan utah trademark attorney

in 1993, state street made most of its money in products like trust banking and institutional asset management.  state street didn’t know how successful etfs would be, and didn’t put a lot of thought into its branding and trademarking.  so, it introduced its etfs under various brand names. 

but, the brand name for what turned out to be state street’s most successful product—the spdr (pronounced “spider”)—actually originated from standard & poors (s&p).  in fact, spdr is an acronym for standard & poor’s depository receipts.  s&p trademarked the spdr name at the united states patent and trademark office (uspto) and then licensed it to state street as etfs rolled out.  the license fee amounted to one-third of the fee amount paid by spdr consumer-investors.  state street was first to market with its unique invention, and despite hefty licensing fees to s&p, state street dominated the etf market for more than a decade.

then, serious competitors barclays and vanguard entered the scene.  barclays offered dozens of etfs under its trademarked ishares brand, and pushed forward with serious marketing effort.  vanguard entered with its already recognized, heavyweight consumer brand name.  both of these competitors quickly gained market share through uniform branding, trademark protection, savvy marketing, and low pricing. 

state street now pays $143 million a year to s&p in trademark licensing fees for its popular spdr etf.  these payments make it very difficult to compete with lower priced competitors.  consequently, state street has lost 32% of total market share over the last 15 years. 

it is now reported that state street is attempting to pivot by marketing a new etf lineup under its own brand.  although the new brand is not specified, some informal research/guesswork indicates that it could be portfolio etfs.  if that is the case, state street's road could continue to be rocky as its federal trademark application before the uspto is currently being rejected as merely descriptive. 

in any event, the state street story is a valuable lesson in the importance of proper and early trademark evaluation and protection.  

post synthesized from the $5 trillion question:  how did the firm that pioneered etfs lose its lead?, the wall street journal, july 27, 2019.  

united states issues patent number 10,000,000

washington - the united states patent and trademark office (uspto) today issued u.s. patent number 10 million. more than just a number, patent 10 million celebrates the rich history and strength of the american intellectual property system dating back to the first u.s. patent, signed 228 years ago by george washington on july 31, 1790, and issued to samuel hopkins for a process of making potash, an ingredient used in fertilizer.

“innovation has been the lifeblood of this country since its founding,” said secretary of commerce wilbur ross. “our patent system’s importance to the daily lives of every american has never been greater. given the rapid pace of change, we know that it will not take another 228 years to achieve the next 10-million-patent milestone.”

patent 10 million for “coherent ladar using Intra-pixel quadrature detection” symbolizes the breadth of american invention, with applications in such varied fields as autonomous vehicles, medical imaging devices, military defense systems, and space and undersea exploration. it was invented by joseph marron and is owned by raytheon company. additional information on patent 10 million can be found at: https://10millionpatents.uspto.gov/docs/patent10million.pdf.

“this patent represents one of ten million steps on a continuum of human accomplishment launched when our founding fathers provided for intellectual property protection in our constitution,” said under secretary of commerce for intellectual property and director of the united states patent and trademark office andrei Iancu. “some of the greatest leaps humanity has made have been fueled by our greatest inventors, americans who have changed the course of history with their brilliance and dogged perseverance.”

“the u.s. patent system serves as a reminder that our nation values and continues to be built by those who are willing to take risks, challenge traditions, push the boundaries of convention, and test new limits in design and thought,” said commissioner for patents drew hirshfeld.

patent 10 million is the first to receive a new patent cover design unveiled by the uspto during a special ceremony at the sxsw interactive festival on march, 11, 2018. this is only the second change in the patent cover over the last 100 years. the new cover is a forward-looking, contemporary take on the significance of what the document represents.

this milestone of human ingenuity perhaps exceeds even the founding fathers’ expectations when they called for a patent system in the constitution to “promote the progress of science and useful arts.” for a detailed, interactive timeline highlighting important moments, notable inventors, changing patent designs, and other interesting facts over more than two centuries of innovation in america, please visit: https://10millionpatents.uspto.gov/:

another reason to protect your trademarks: china may be out to get them

part of my work involves monitoring companies’ trademarks and making sure that others do not register similar marks to parasite brand recognition.  with increasing frequency, i encounter and challenge chinese companies that are trying to register marks (abroad or domestically) similar to those that i'm trying to protect.

today, the wall street journal reports one likely cause for what i see:  the chinese government pays its citizens hundreds of dollars for each trademark they register in the united states.  wow.  in one example, the chinese city of shenzen pays its residents about $800 for each trademark they register in the united states. 

unsurprisingly, chinese-based filings at the united states patent and trademark office (uspto) have simply exploded:

logan utah trademark attorney

mark cohen—a china-focused intellectual property expert at berkeley law school and former senior counsel at the uspto—states that trademark subsidies are part of china’s "planned approach to intellectual property," which is "highly metric and numbers-oriented.”       

the wsj article quotes uspto officials as saying that many of these trademark applications “seem to be not legitimate”, and further details a number of sketchy trademark applicant practices in this area.  many of the sketchy trademark applications simply aren’t caught in, or filtered by, the uspto trademark examination process.  when the trademarks do register, they provide crucial benefits like enhanced search engine optimization and competitiveness on seller platforms key to utah's entrepreneurs like amazon.com.  

if there weren’t already enough good reasons to act to protect brands and trademarks, this wsj article highlights the importance of: (1) taking proper and early steps to protect brands, and trademarks, and then (2) implementing a robust trademark and brand monitoring system. 

patents as ecotones

sometimes, if you’re lucky, you stumble across the right word to describe a concept so familiar it feels like home.  the term ecotone is used in ecology to describe a transition area between biomes where two otherwise disparate plant or animal communities meet, integrate, and coexist.  the word combines elements of ecology and the greek word tonos, meaning tension.  it hints to a unique place where different ecologies are balanced in a state of natural and meaningful tension.  there is also a dynamic in ecotones known as the edge effect.  the edge effect increases biodiversity due to a broader range of environments.  riparian areas—interfaces between land and river—are familiar examples of ecotones, and also a personal favorite.      

to come to the point, if a patent attorney isn’t getting outside enough to see real ecotones (or even if they are), and if he or she crosses their eyes just so, they may start seeing patents as ecotones.  patents can become places where elegance meets specification, emotion meets technicality, and innovation meets a smile or laugh.  of course, this thinking could be a patent attorney brain glitch or something.  but hopefully it’s just a different perspective on patents.  from what we learn about ecotones, such differences are at least ok and probably healthy.     

“in considering the study of physical phenomena, not merely in its bearings on the material wants of life, but in its general influence on the intellectual advancement of mankind, we find its noblest and most important result to be a knowledge of the chain of connection, by which all natural forces are linked together, and made mutually dependent upon each other; and it is the perception of these relations that exalts our views and ennobles our enjoyments.”

alexander von humbolt, cosmos:  a sketch of the physical description of the universe, vol. 1 (1845)    

Considering use: narcos, netflix, and trademarks

difference can find confluence in unique places.  here, former drug traffickers meet netflix at trademark law.       

as background, netflix’s growth in recent years has been impressive, due in part to successful original content like narcos—a series based on columbia’s medellin and cali drug cartels. 


 
netflix's pablo escobar:  happy with a lot of cocaine  

netflix's pablo escobar:  happy with a lot of cocaine  

 

roberto escobar—pablo’s brother and ex-assassin/accountant—thought it unfair that netflix reap the economic benefits of his family’s story.  trying to obtain leverage, he filed trademark applications before the united states patent & trademark office (uspto) for terms including “narcos” and “pablo escobar.”  these trademark applications sought to perfect rights in all kinds of consumer products. 

although escobar successfully obtained trademark registrations in “pablo escobar”, netflix drew the line at rights to the “narcos” mark.  the company initiated trademark opposition proceedings before the uspto trial and trademark appeal board (ttab).  earlier this month, escobar started abandoning several of his “narcos” trademark applications.  why? 

in answer, the parties may be reaching settlement.  but escobar also faces an uphill battle.  netflix is likely correct in arguing that its trademark rights in “narcos” are superior because escobar cannot prove prior and consistent commercial use. 

to explain, trademark rights originate from specific, demonstrable, and consistent use in commerce.  trademark applicants must prove to the uspto that they meet these requirements.  escobar’s evidence of such use seems doubtful.  although the use evidence passed preliminary uspto examination, it is vulnerable to the tougher scrutiny of netflix’s ttab challenge. 


escobar's evidence of alleged commercial use: candles, potions, sprays, etc.

escobar's evidence of alleged commercial use: candles, potions, sprays, etc.


an experienced trademark attorney can help a business properly use trademarks, protect trademarks through application and registration, prove commercial use of trademarks, and navigate trademark challenges within uspto administrative proceedings or litigation. 

logan utah patent tuesdays: hand cannon, dog ears, and step sliders

the patent application and examination process can take years.  inventors and their patent attorneys spend that time in cycles of analysis, strategy, advocacy, and wait.  for an invention that finally makes the cut, the united states patent and trademark office (uspto) grants patent rights on a tuesday.  this gives the inventor exclusive rights to the invention for up to 20 years.  patent certificates arrive later.  these are dressed in american—red ribbon, blue racing stripe, and gold seal with looming commerce eagle. 

here are logan utah patent tuesdays in september with unique cache valley flavor (and a hint of project cip):  

sept. 12:

us patent no. 9,759,500, firearm breech system, triple action llc - logan, utah

physics get tricky when you fire a .50 bmg round from a handgun.  please investigate here. among other issues, extreme cartridge expansion from chamber forces can impinge handgun components, hindering cartridge extraction and reload.  the invention to solve this problem uses a cam leverage-operated system in the breech lock.  (sidenote: the gun is nicknamed "the texan" after its own hugeocity and affiliate tanklogix's oil and gas work.) 


sept. 19: 

us patent no. D797,612, bicycle device mount, dogears llc - logan, utah

logan is a northern utah hotspot for biking.  serious bikers use garmin edge or similar computers for navigation, bio-, ride metrics, and feedback.  but, the plastic oem mounting system on the computer's housing is susceptible to wear and prone to premature failure.  the invention to solve this problem uses a specially machined, aftermarket replacement mount.  


sept. 26: 

us patent no. 9,771,024, robust rocker guard with automatic step, rock-slide engineering llc - north logan, utah

many trucks and suvs are getting higher, making running boards and automatic steps more popular.  also, serious rock crawlers (and posers) love vehicle body armor.  rock slide’s step slider (us patent no. 8,833,781) melds these two universes with a product that conveniently assists drivers in pirouetting vehicles over boulders (please investigate here from 1:50 to 2:50).  the newly patented gen 2 is even better, with new cartridge design for optimized production and assembly.      

the eagle, the cocks, and the attorney

there is much to admire in a slave who earned freedom through wit and intellect, even if Aesop is only a tradition.  i also like him for being a master storyteller with animals as protagonists.  the story of the eagle and the cocks teaches one possible consequence of crossing the line from capability to show:

there were two cocks in the same farmyard, and they fought to decide who should be master.  when the fight was over, the beaten one went and hid himself in a dark corner, while the victor flew up on the roof of the stables and crowed lustily.  but an eagle espied him from high up in the sky, and swooped down and carried him off.  forthwith the other cock came out of his corner and ruled the roost without a rival. 

maybe i’m off, but with a lot of self-deprecation, i find an attorney comparison.  from the wall street journal’s july 20, 2017 article: “the hottest field in law?  ranking the lawyers”:

a proliferation of attorney awards and rankings—more than 1,200 by one count—is inundating law-firm marketing departments. . . . law firms spend $157,000 annually on average in employee time and expenses to complete awards submissions. . . . for larger firms, the average is $691,000, with one reporting spending $5 million. . . .contests are often pay-to-play. . . . a whole cottage industry has developed on playing off of lawyers’ egos and insecurities. . . . joseph andrew, global chairman of 8,000-lawyer law firm dentons [says] “if you’re the world’s largest law firm, you want to make sure you’ve won more awards than anyone else.”

i do not mean to offend others who have sought for or achieved recognition.  but at this point, i seriously hope that my resume never reads: “super lawyer”, “best lawyer”, or “who’s who legal.”  i do hope that my clients are OK with that, as well as not being billed for whatever pay-to-play recognition.   

I relate most to one in-house attorney mentioned in the wsj article who “didn’t care about rankings [and] hires lawyers who show an interest in the industry and can serve as an extension of the company, qualities he says that can’t be ascertained in a lawyer directory.” 

i’ll plan on working towards that.  in my twist on aesop, the attorney that fits that description is the eagle [caaaw! chicky burp]. 

logan utah attorney

the most common sense business approach to patentable innovation in utah

sometimes you find fun articles or studies that venture to rank the “most important” innovations, like this recent one, the most impactful invention by state:  

infographic courtesy of midamerica nazarene university

infographic courtesy of midamerica nazarene university

what?!  utah’s own lester wire invented the electric traffic light, “letting drivers know when to stop, go, or slow down”?!  ohmyheck.  move over utah jell-o dessert! 

reasonable minds can differ about how to rank innovation.  whether and how patents are and should be involved in such innovation is also a good question.  some scholars are skeptical that patents drive innovation.  from a business perspective, i think at least some of the criticism misses the point.  by necessity, businesses are pragmatic, not scholarly.  for them, patents are not always most useful as merit badges of innovation.  rather, patents can be practical competitor management tools, deterring, hindering, or even halting competing products.   

so, getting back to the article, we might long to seal hunt with the genius inuit who prototyped the kayak (alaska).  but maybe more business props to the folks behind the modern tampon (colorado).  tampon inventor dr. earle haas protected his design with a patent, as well as his fledgling tampax brand (a portmanteau of “tampon” and “pack”) with a trademark registration.  in 1933, he sold the patent and trademark registration to german immigrant and denver businesswoman gertrude tendrich for $32,000—$589,757.56 in 2017 dollars.  ms. tendrich then founded and helmed the tampax company, which was eventually purchased by procter and gamble in 1997 for $2 billion.  somewhere in there (ww2), tampax produced large quantities of wound dressings and saved a bunch of soldiers - extra innovation points.   

how did utah son lester wire fare?  according to the salt lake tribune, while he thought of having his light patented, wire didn’t see the process through.  the first traffic light patent was awarded to someone else.   

disparagement reframed: SCOTUS paves the way for registration of controversial trademarks

on monday, the u.s. supreme court overturned long-established trademark practice with its opinion in matal v. tam.  the court held that a federal trademark statute prohibiting registration of potentially disparaging trademarks actually violates the first amendment’s free speech clause. 

the case was initiated by a frontman for “the slants”—a portland, oregon rock bandafter the united states patent and trademark office (uspto) refused to register the slants’ trademark application on the basis that it was racially disparaging. 

interestingly, the slants’ members are of chinese descent and embraced the controversial name, in part, with the intent to reframe it through their success.  “the notion of having slanted eyes was always considered a negative thing,” the slants' frontman simon tam says.  “Kids would pull their eyes back in a slant-eyed gesture to make fun of us . . . i wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead.” 

the ruling could have wide-ranging effects on former and current trademark disputes—like the washington redskins' mark that was canceled by the uspto as offensive to some native americans.  it also opens the federal trademark registration door to an entirely new category of controversial brands and marks. 

perhaps most importantly, these guys are not bad, a little depeche mode’y.  check out “capture me burning” or “kokoro (i fall to pieces).”        

the slants - photo courtesy of gage skidmore, wikipedia

the slants - photo courtesy of gage skidmore, wikipedia

Intellectual property in business transactions

Intellectual property helps businesses reach their objectives by providing strength and protection around key products and brands.  In corporate transactions—like mergers and acquisitions, financing, joint ventures, partnerships, or capital investment—one aspect of proper due diligence includes understanding a company’s intellectual property as well as its intellectual property practices.  The framework for analysis may vary depending upon the type of transaction contemplated and the position of the party in that transaction.  But, certain topics are almost always important to examine, including: 

utah patent and trademark attorney
  1. What, if any, intellectual property (e.g., patents, trademarks, trade dress, copyrights, trade secrets) does the business own? 
  2. What does the intellectual property cover?
  3. How important is the intellectual property to business objectives? 
  4. How strong is the intellectual property?  Is it susceptible to challenge?  Are potential competitors likely to get around protections to compete in the same space?           
  5. Have contractual assignments of intellectual property been made to the business?  
  6. What is the status of the intellectual property?  Has it been applied for?  If so, where is it at in the application or examination proceedings?  If it hasn’t been applied for, should it be?  Have rights already been issued?  If rights have been issued, are maintenance fee payments up to date?  Has any intellectual property expired?
  7. Are there any licenses, liens, security interests, or other conditions that could potentially affect the value, transfer, or use of the intellectual property?
  8. Has the business undertaken risk-mitigation measures, like prior art searches, freedom to operate opinions, etc., that could help protect it against infringement liability (which is usually not covered by business insurance)? 
  9. Has the business ever issued or received cease-and-desist letters, or been involved in any disputes relating to intellectual property?    

A registered patent and/or trademark attorney can help businesses ask or answer these questions within the context of corporate transactions, providing an additional layer of due diligence protection.   

trademark monitoring for brand and competition management

the best way for your business to begin to establish brand or name rights is through federal trademark registration followed by proper use of the registered trademark.  but, even once a trademark is registered, others can weaken that registration or block you from expanding into other product lines when they use or register confusingly similar names.  worse, the longer confusingly similar marks go unchecked, the more expensive and less likely it becomes to successfully attack them.  so, how can your business best maintain the protective breadth of your trademark rights?  one important strategy is adopting and following up on an effective trademark monitoring system.     

utah trademark attorney

trademark monitoring can operate on many levels.  for example, it can be as simple as:

however, monitoring mechanisms that identify potential problems earlier can provide a significant advantage.  if confusingly similar marks can be identified and challenged in their early stages of adoption, third parties are much more likely to abandon them because they have not heavily invested resources into marketing or inventory.  significantly, federal trademark application is often a marker of early trademark adoption.  a skilled trademark attorney can help you search for, identify, address, and attack others’ confusingly similar trademark applications during what’s known as the public opposition period—a step in the trademark application examination process that opens the application up to challenge by those that would be adversely affected if the mark were to proceed to registration. 

by implementing and following up on an effective trademark monitoring protocol, you can optimize the value of your trademark by ensuring that others are not encroaching on your rights and plans for future expansion. 

cache valley businesses receive utah genius awards - again!

the 2015 utah genius awards were held on may 6, 2015 at the little america hotel in salt lake city.  utah genius is sponsored by bateman ip, the utah governor’s office of economic development, salt lake chamber, and others.  awards are made to individuals and companies who drive utah’s creative economy as indicated by successful patent issuance and federal trademark registration.

as in previous years, i was very happy to see logan, utah-area companiesthat I represent as a patent and trademark attorneyreceive awards.  malouf (cvb inc) placed third (3rd) and simplified business group (dba rent dynamics and summit technology) placed twelfth (12th) in the state of utah for overall trademark registration for the year 2014.  significantly, this year represents the third consecutive year that Malouf has received a utah genius award (previously placing 11th and 10th).  also, icon and cache valley residents wade fallin (venture md) and William dalebout (icon) received awards in the patent category.       

the vibrancy, economic contribution, and strategic thinking of our cache valley and logan-area businesses are evident through this consistent recognition for intellectual property achievements.  congratulations to the award winners!

click here to check out the utah genius awards, and here to see the post from 2014. 

loganutahtrademarkattorney.jpg

trademark power on third-party platforms

sales through amazon.com and similar platforms are very important for many businesses.  but, these platforms also come with their own unique, competitive environments where tricky competitors can poach a business's sales in many different ways.  for example, they can appropriate existing listings and convey counterfeit products.  they can use identical or similar brand names.  they can even supply inferior products which then become associated with their target. 

these games are unlawful as unfair competition and/or trademark infringement.  they negatively impact not just legitimate sellers and their customers, but also platforms.  specifically, infringers generate poor buyer experiences, bad debt from customer claims, and chargebacks.  they also threaten the platform's reputation and brand.  moreover, platforms face legal risk in the form of contributory trademark infringement liability if they continue to supply services to known infringers. 

yet, platforms can be frustratingly passive or slow in noticing and taking action against wrongful activity.  significantly, companies can beat unfair competition and trademark infringement on third-party online platforms with a little planning and effort. 

first, companies should be vigilant in performing their own platform monitoring to detect infringers.  second, companies should familiarize themselves with platform policies, procedures, and enforcement personnel in order to make effective complaints when problems on the platform are identified.  third, and most importantly, any complaint to a platform should point to a proper trademark registration.  registrations catalyze platform action because they provide clear and concise evidence of perfected intellectual property rights.  in contrast, where there is no trademark registration, a complainant must rely on common law rights.  these provide the platform less clarity and excuses for inaction.

when these steps are taken, a business can obtain quick and decisive platform action against alleged infringers without resorting to any legal action.  successful complaints can persuade the platform to remove the infringer's listing—or in egregious cases, entire accounts—within just hours of notice.  and that adds numbers to the business's bottom line.     

utahtrademarkattorney

thanksgiving 2.0

i love thanksgiving.  food, family, and gratitude, not to mention deep history and tradition.  but, even thanksgiving can be innovated.  so, this month’s post is dedicated to the brave men and women who work around the clock to patent the technology behind thanksgiving 2.0.

first place goes to what I have dubbed "the turkey drone" (u.s. patent number 8,741,374; granted just this year).  its actual title is “device and method to simulate cooking stuffing in a bird.”  but, don't be fooled—this sucker is basically engineered to be the drone version of a dead turkey carcass’ complicated interior tunneling.  the sky appears to be the limit here.  to touch on just some of the many highlights:  [s]tuffing cooked in accordance with . . . the invention will have the appearance of a 'log', which holds its shape . . . .”  are you kidding me?!  log stuffing?!  where have you been my whole life?  beam me up scotty!  moreover, “[t]he invention . . . provides all the benefits of cooked-in-the-bird stuffing but in less time and without the safety concerns of bacterial contamination.”  this is robot turkey insides folks:  bigger, better, faster, and sanitarier.  dig into a steaming loaf from your contamination-free, "gut-o-matic" today!                  

 
 

second place goes to "the pie shoveler" (u.s. patent number 7,102,111; "multi-purpose food-serving apparatus" or "mpfsa").  ok, this thing is drawn for pizza, but the patent also specifies that it is just as appropriate for thanksgiving pie (probably after your log stuffing, see above).  essentially, it provides critical support of the pie as it journeys into your mouth.  then it conveniently folds to get out of your eating machinery's way, as you shovel deeper into the pie environment.  think of it as a disposable rocket booster for launching the pie into your digestive space.  genius.  from the dashed lines in figure 2, you can also see that innovative "eye-on-the-pie" technology is incorporated into the patent.  and bonus feature:  this is no kidding—it multi-purposes as a sail for a tiny boat!  (see figure 36).  so have some pie, then sail your tiny thanksgiving friends on the ocean blue.  spectacular!  patented! 

pieshoveler1

honorable mention goes to "drumstick car" u.s. patent publication number 2007/0113446 ("apparatus for decorating vehicles").  unfortunately, it didn't meet patentability requirements, so it never matured into a patent.  but it burned brightly (for a while) as a patent application.  hard-core thanksgiving fans don't even blink at the idea of turning their car or truck into a giant roving tom via an oversized, attachable drumstick ("decoration"), complete with a "happy thanksgiving" tattoo. 

 
 

and just when it couldn't possibly get any better, you find out just how super versatile this technology can be.  claim 18 of the patent reads that the decoration can be "one from the group consisting of a reindeer antler, a devil horn, a longhorn cattle horn, a candy cane, a cat ear, a bunny ear, a leprechaun ear, a turkey drumstick, a beach ball, a surfboard, and mouse ears."  outstanding! 

have a happy thanksgiving!