Intellectual Property Valley

Industrial Design How To Start ?

2012-02-14T16:14:00.000-08:00

Industrial design is the use of a combination of applied art and applied science to improve the aesthetics, ergonomics, and usability of a product, but it may also be used to improve the product's marketability and production. The role of an industrial designer is to create and execute design solutions for problems of form, usability, physical ergonomics, marketing, brand development, and sales (Wikipedia)

A good industrial design makes an item appealing or perhaps attractive, therefore boosting it's demand as well as increasing it's store-bought price.

The design could possibly be three dimensional depending on the form or area of the item, or even two dimensional according to the particular object's designs, outlines as well as colors. Uniqueness, originality and also looks are crucial if the industrial design shall be patented, even though all these requirements could vary from one particular place completely to another. It's visual characteristics must not be enforced because of the techie capabilities of the item.

Lawfully, the term "industrial design" relates to the name given simply by an official power, generally the Patent Agency, to safeguard the visual as well as attractive element of an item. This method safeguards exclusively the non operational options that come with an industrial product and doesn't guard any kind of technical highlights of the item to which probably it is actually put on.

Industrial design legal rights are generally approved for the inventor of designs in order to give them a break because of their hard work and also expenditure throughout production of the product. Such legal rights make it possible for the owner to create content articles for which your design can be put on or perhaps when the design might be embodied.

The actual owner of that lawful name has got the special right to produce, import or even promote virtually any items to which the design and style has been applied. They might provide authority to other people to be able to take advantage of the design and also take a legal action towards anybody when using the design without having authorization.

On the whole the time scale involving safety of course is actually through ten years to twenty five years. However this is frequently split into conditions as well as an extension for the term needs restoration of the enrollment.

The reason why to preserve an industrial design?
Customers frequently go ahead and take looks of your product or service into account when selecting among various products. This is especially valid in the event the industry facilitates quite a number products along with the very same functionality. Since the visual charm of your product could figure out your customer's preference an industrial design contributes industrial benefits to a product.

Preserving an industrial design is yet another incentive with regard to creative imagination as well as stimulates financial improvement. First and foremost, this guarantees safety towards unsanctioned duplicating or even counterfeit of the design and style and definitely will be not at all hard as well as affordable in order to develop. An industrial design is not safeguarded until this has been released within an recognized press release.

Industrial design vs copyright laws
Objects coordinating the prerequisites for safety within industrial design law can even be guarded within copyright law. In case a design brings together components or perhaps characteristics that are protected by each of those industrial design laws and regulations as well as the laws of copyright after that claims under each regulations can be accomplished. The actual inventor may prefer to get protected under simply one of several laws and regulations however in this instance they might not really then produce the additional law when coming up with claims

Source : ArticleBase

Further Information regarding Industrial Design (ID)

1. Definition Industrial Design

2. What is Industrial Design

General : IP Issues in Developing a Business Plan

2012-01-24T15:39:00.000-08:00

What A Business Plan ?

A business plan is a mechanism to ensure that the resources or assets of a business are applied profitably across all its activities for developing and retaining a competitive edge in the market place. For a new business it provides a blueprint for success, while for an ongoing business it provides an overview of where a business is at present, how the business is positioning itself, and how it seeks to achieve its objectives to become and/or remain successful.

Putting together a good business plan takes a lot of work. Then what justifies the time and energy you'll spend creating a plan? A business plan can be used for a variety of purposes:

To examine the feasibility of your business idea: A written business plan forces a company to think through all the key issues - such as the potential demand for its products or services, the nature of the competition, entry barriers, the unique selling proposition of the new or improved products or services, resources required, critical employees, relevant technologies and strategic partners, raising funds, projected start-up costs, marketing strategies, and the like.
To access start-up services and financing: Business incubators and potential investors and lenders require well-formulated and realistic business plans. This is often not the case; no wonder some 80 % of business plans received by investors and business incubators are rejected.
To provide strategic guidance: A business plan is a reference point providing you and your management team with an objective basis for determining if the business is on track to meet the goals and objectives in the time frame set and with the available resources.
To furnish a standard/bench mark against which to judge future business decisions and results. This standard /bench mark may evolve along with the business, and as such the business plan is a dynamic document that should be revised based on new and evolving circumstances.

Why should intellectual property be integrated in your business plan?

New or original knowledge and the creative expression of ideas is the driving force of successful businesses in the 21st century. Therefore, safeguarding such knowledge and creative expression from inadvertent disclosure or its unauthorized use by competitors is becoming increasingly critical for developing and retaining competitive advantage. Building a business also requires various types of other resources, including a network of relationships and sources of funds.

The intellectual property (IP) protection system provides a key tool for

(1) keeping at bay unscrupulous competitors,

(2) developing relationships with employees, consultants, suppliers, subcontractors, business partners and customers, and

(3) obtaining funds.

To be accepted by a business incubator or to attract investors, it is necessary to have a quality business plan that takes an objective look at the prospects of the proposed business. In order to convince investors you will have to show that

(1) there is a demand for your product in the market place,

(2) your product is superior to competing products, if any, and

(3) you have taken adequate steps to prevent `free riding' on your success by dishonest competitors.

Most entrepreneurs would argue that the product they are offering is innovative, unique, or superior to the offerings of competitors. But is this really so? If you believe it is, you will have to prove it, and a patent (or the results of a reliable patent search) may be the best proof of novelty you can get.

Trade name, trademarks and domain names may be the prime elements that differentiate your product from those of competitors. Therefore, your proposed trade name, proposed trademark(s), and proposed domain name(s) should be carefully chosen and the steps taken to register these should be referred to in your business plan.

In addition, start-up service providers and investors will want to make sure that the product you propose to sell is not relying, without authorization, on other companies' trade secrets, copyrighted materials, patents or other IP rights as this may bring the downfall of your own business through expensive litigation. In some high-tech sectors the risk of infringing on third party IP rights is high and start-up service providers and investors may be reluctant to take the risk unless you can prove (e.g. through a patent or trademark search) that no such risks exist.

For many businesses confidential business information (such as details of production, secret inventions, and technical, financial and marketing know-how) alone may be the source of their competitive advantage. In such circumstances, it is important to communicate to start-up service providers and investors that your enterprise has proprietary and significant business information - known as trade secrets - and that you have taken adequate steps to protect it from employees and competitors. In fact, even your business plan is a secret document that should not be disclosed except on a 'need-to-know basis' and that too, generally, only after the employee, investor, or whoever else concerned, has first signed a non-disclosure or confidentiality agreement.

In short, if IP is an important asset for your business (i.e. if you own patents or patentable technologies, industrial designs, trade secrets, reputable trademarks or hold the economic rights to copyright works), then it should be a key part of your business plan. An adequate reference to the assets of a company and of its market opportunities should not only list the tangible assets (e.g. factories, equipment, capital, etc) but also the intangible assets as the latter are increasingly the key to a company's success in a hyper competitive environment. As such, any indication that confirms due diligence on your part in the management of IP assets is likely to play an important role in convincing start-up service providers and investors of your company's potential.

How can IP be integrated into the business planning process?

Writing a plan requires good preparation. Before drafting your business plan, you need to think over a number of issues. You should understand what is the nature of your business; what resources would be required to meet your business' objectives; what are your target markets; what is the viability and growth potential of the business, etc. Also, you should identify the commercial relevance of IP assets, whether owned by you or to which you have authorized access, and the resources needed for obtaining and maintaining these assets.

The outline presented below lists some key points relating to IP that you need to consider while preparing your business plan. The importance of different points will depend on your particular situation and business. Further, the list is not exhaustive, and many additional issues may have to be considered depending on your circumstances. However, the answers to these questions may help you to integrate IP assets into your business planning process.

1. What IP assets do you own?

Identify and classify your IP portfolio. This invariably includes confidential information/trade secrets, trade name(s), and trademark(s), often also domain names, industrial designs and copyright and related rights, and sometimes utility models and patents for inventions.
What other intangible assets do you have? In this context, also consider franchise, license and distribution agreements, publishing rights, covenants not to compete, information databases, computer systems software, marketing profile, management expertise, distribution network, technical skills, etc.

2. What is the status of your IP portfolio?

Do you have a system for identification of your IP assets?
Do you have an IP portfolio? When was it created? Who created it?
Which of your IP assets are registrable? If so, are they or should they be registered? Are they also registered in foreign countries/ export markets? Is the registration to be renewed? If yes, when?
Do you conduct or plan to conduct IP audits? If so, at what periodicity and by whom?

3. How do you plan to protect your IP assets?

If you commercialize your IP assets (regardless whether in-house or with a partner), do you have arrangements securing the ownership or co-ownership of your IP assets?
If you outsource a part of your business activities, do you have contracts in place that ensure your IP rights over the outsourced work and prohibit others from taking advantage or commercializing your product without your prior agreement?
How easy or difficult is it for others to properly acquire or duplicate your secret business information? What measures are taken to guard the secrecy of your confidential business information? Do you have an integrated security policy and plan for your physical and electronic assets? If you commercialize your IP assets (regardless whether in-house or with a partner), do you have arrangements maintaining the confidentiality of your secret business information? Have you included confidentiality or non-disclosure clauses and non-compete clauses in the employment agreements with your key employees and business partners?
Have you ensured that confidential business information/trade secrets are not available or lost by display on or through your web site? Are all your URL headers free of confidential information? Do your web pages provide links to pages that have confidential information?

4. How important are IP assets to the success of your business?

To what extent are your IP assets currently being used, potentially useful, or no longer of use to your business?
Does your enterprise depend for its commercial success on IP assets, whether owned or licensed? On what types of IP assets does it depend?
Do you have new products or processes which will provide a unique competitive advantage? If so, will they revolutionize an industry? Can the associated IP rights be secured, providing additional differentiation and bar competitors from entering the market?
What competitive advantage do your IP assets (whether owned or licensed) provide to your enterprise? Assess and explain how IP provides or adds value to your customers and contributes to developing a sustainable competitive edge.
Do your trade secrets, patents, trademarks, copyrighted works and industrial designs go far enough to protect those aspects of your business that determine your business' success?

5. Do you own all IP assets that you need, or do you have to rely on IP assets owned by others?

Do you own the IP assets that you are using? Can you prove it? Do you have the records, registrations, contracts and other proof that an investor, business partner or a court of law may require? Have you identified any potential third-party claims on your IP (for example, industrial sponsors or contract research clients)?
Are you sure you are not infringing IP rights of someone else? Can you prove it (e.g. have you conducted a patent, trademark and/or industrial design search)? Have you verified if any of your key employees, who has worked for a competitor in the past, is bound by post-employment non-compete or non-disclosure confidentiality agreements by the previous employer(s)? Do you need access to third party IP in order to exploit your business idea? Have you been granted the license(s) you need for the use of IP, which is not owned by you?
Have you signed non-disclosure and/or non-compete agreements with key personnel, contractors, consultants or other external suppliers which assign to your business any IP they develop when working for you?
When you use external contractors to write and design your marketing and promotional material or your web site/web pages, do their contracts specify who owns the IP that would be created? If employees do so, then is the work within the scope of their individual employment? If not, then have you taken a written assignment of copyright and other appropriate IP rights? Have you proper permissions to use written material, graphics, photographs, music or anything else created by a third party for use on your web site or in any other manner?
Does your web site have any metatags, hypertext links, frames or deep links to other web sites? Are these duly authorized by the third parties concerned?

6. Do you know enough about your competitor's IP strategies and IP portfolios?

Do you have a plan for gathering competitive intelligence? Do you gather or plan to use IP information/databases for obtaining competitive intelligence on your competitors? By searching patent, trademark and industrial design registers, you can gain detailed legal, technical and business information about a competitor's operations and products. You can use this information to assess whether there is likely to be a market for your products. In addition, an IP search allows you to verify whether you can protect your IP, whether you are infringing another party's IP and whether others are already infringing or likely to infringe your IP rights.
Are there any IP related barriers to enter your competitor's market, e.g., patents, trademarks or industrial designs which underscore customer loyalty to competitor's corporate image, brands, etc.?

7. Do you have an IP policy and IP strategy for your enterprise?

How do you currently identify, protect, leverage and manage your IP assets?
What plans do you have in place to derive the maximum value from commercializing your IP assets?
Do you have a special marketing strategy? Do you plan to export? If so, have you used or plan to use a regional or international filing or registration system (such as the Patent Cooperation Treaty, the Madrid system or the Hague Agreement) for patent applications and trademark or design registrations?
Have you assessed the potential to commercialize some or all of your IP assets partly or wholly through licensing, franchising and/or selling them?
Have you conducted an independent IP audit periodically? And has valuation been done of your IP assets? Was this done independently?
How far have you considered taxation and incentives issues associated with the commercialization of your IP? There may be taxation-related requisites (such as registering) to the commercialization of IP. The taxation treatment of revenues and expenses resulting from the commercialization of your IP can differ widely from the accounting treatment. There may be government financial assistance measures associated with IP assets and their commercialization.
Do you plan to use your IP assets as security or collateral for a loan, or to create a tradable security in the securities market? What is the possibility of securitization of future revenue streams linked to a bundle/portfolio of your IP assets?
Do you have a staff education program that covers the management and protection of your IP assets?

Summary

Business plans are a crucial tool for approaching start-up service providers and investors and considering the market opportunities for your business. Because IP provides your enterprise competitive advantages and increases its value, it is necessary to let start-up service providers and investors know about your IP assets by adequately integrating them into your business plan.

Source : WIPO , IP Australia

How to get a Patent ?

2012-01-12T16:42:00.000-08:00

A quick guide to the patent process.

While fairly straightforward, the technical terms and legal aspects of filing a patent application can be confusing. I've attempted to outline the patent process step-by-step and include simple explanations of patent terminology you will encounter along the way. It should be noted that getting a Trademark or Copyright follows a very different process.

Contact Noro IP for more specific information in those areas.

Step 1: Record the Invention ASAP

When you first invent something, it is important to write up a complete, dated description of the invention. Later, this record will provide evidence that the inventor possessed the invention on the date indicated. In the United States, a patent is given to the first to invent, not the first to apply for a patent. The inventor must sign and date the description and have one other witness sign and date it as well. The record can be simple and short, but should include enough details to convey clearly what the invention is. In most cases, it will utilize patent drawings or diagrams, which show how the invention works.

Step 2: Don't Talk About It!

If the invention has been described in a printed publication, has been in public use or on sale before the invention was recorded (here's where that dated record comes in handy), it can not be patented. Also, if an invention has been described in a printed publication, has been in public use or on sale for more than one year before the formal patent application date, it cannot be patented.

Step 3: Perform a Patentability (Novelty) Search

Many people don't realize just how much has already been patented. Even if you don't see your invention on the shelves, that doesn't mean it's not already be owned by another inventor. Because of this, Noro IP highly recommends getting a Patentability (Novelty) Search done before applying for a patent. Patent applications can cost approximately $2,000 - $10,000 and take years to complete. But Patentability (Novelty) Searches start at $300 and take approximately 1-2 weeks, saving you considerable time and money to determine if your invention is patentable and if filing a patent application is worth it.

An invention must be new, useful and non-obvious to get a patent granted. You may conduct a Patentability (Novelty) Search on your own using keywords and search terms using the free USPTO Patent Database or other patent databases. You will also want to search the USPTO's Patent and Trademark Depository Library for other patent-related publications.

However, given that millions of patents exist, a Patent Agent or Attorney will be more efficient at conducting a professional, exhaustive search that proves an invention to be new, useful and non-obvious.

Your Patentability (Novelty) Search done by a reputable Patent Agent or Attorney can answer the following questions:

a) Is your idea truly novel, has already been patented, has been anticipated or rendered obvious?

b) Is it worth the cost of filing a patent at all, given the scope of patentability?

c) What is your competition doing?

d) Is it worth the effort and expense to fully develop and market your concept?

The results of the Patentability (Novelty) Search will be printed on your patent and serve as evidence that your invention is novel. During the application process a Patent Examiner from the USPTO will also conduct a similar search and may discover different findings.

Step 4: To Apply or not to Apply?

After analyzing all the related information from your Patentability Search and marketing and development research, you need to make a decision whether to apply for a patent or whether to continue developing your invention further. In the case of applying, you have several options available depending upon your time schedule, the invention's need for protection and available funds. Your registered Patent Agent or Attorney can help you with professional recommendations, but the ultimate decision is yours as an inventor.

Step 5: Filing a Patent Application

There are three categories of patents you may apply for: Design, Plant, and Utility. The majority of Patent Applications are Utility Patent Applications and there are two types of Utility Applications: Provisional and Non-Provisional.

A Provisional Utility Patent Application provides immediate protection for your invention while giving you time to file a regular, Non-Provisional Patent Application. A Provisional Patent allows an inventor to claim "patent pending" status for the invention for 12 months at a fraction of the price of a regular Patent Application. Often five to ten pages, a Provisional Patent Application consists of text and drawings that describe how to make and use your invention.

It provides the inventor with a 12 month period to further develop the invention, determine marketability and seek licensing agreements. If you file a regular, Non-Provisional Patent Application within 12 months of filing the Provisional, you can claim the original Provisional filing date to prove that your invention came before other similar developments.

A Non-Provisional Patent Application is a regular Patent Application that will protect your invention for 20 years. It is more detailed than the Provisional Application and includes a full set of claims and patent drawings. It costs more than the Provisional to prepare and file and takes longer to process as well. The US Patent and Trademark Office has very specific requirements for preparing and filing a Non-Provisional Utility Patent Application, which must include a data sheet; a specification; a claim or claims; drawings, when necessary; an oath or declaration; and the prescribed filing, search, and examination fees.

There are many other legal nuances in the Patent Application process which can affect patentability and enforceability such as rules about who can apply for a patent, claim types and specific patent law definitions of new, useful and non-obvious. Noro IP can walk you through the entire process from start to finish. Articlebase

Why We Should Apply Patent ?

2011-12-23T21:04:00.000-08:00

According to patent law, only the inventor may apply for a patent, with certain exceptions. If a person who is not the inventor should apply for a patent, the patent, if it were obtained, would be invalid. The person applying in such a case who falsely states that he/she is the inventor would also be subject to criminal penalties.

If The Inventor Is Dead, Insane, or Refuses to Patent. If the inventor is dead, the application may be made by legal representatives, that is, the administrator or executor of the estate. If the inventor is insane, the application for patent may be made by a guardian. If an inventor refuses to apply for a patent or cannot be found, a joint inventor or a person having a proprietary interest in the invention may apply on behalf of the non-signing inventor.

Co-InventorsIf two or more persons make an invention jointly, they apply for a patent as joint inventors. A person who makes a financial contribution is not a joint inventor and cannot be joined in the application as an inventor. It is possible to correct an innocent mistake in erroneously omitting an inventor or in erroneously naming a person as an inventor.

The inventor or the company employing the inventor. When someone makes an invention, and does so as an employee of a company, usually the company owns the right to apply for a patent. The exception once again is the United States, where only natural persons may apply for a patent. In the USA, the employee will typically have a clause in his employment contract stating that he assigns all his patent rights to the company. The filing is then done on behalf of the employee, but the rights immediately go to the company.

Most countries do require that the employee's activities are in some way related to the invention. If the janitor invents a new medicine, his company will not automatically own the patent rights to that medicine. However, if a researcher in a medical company invents the same medicine, his company does.

The company may be required to pay the inventor compensation, unless his salary is deemed adequate for an inventor. In Germany, if a company decides it does not want to apply for a patent on an invention one of its employees invented, the employee has the right to apply for the patent himself.

Often, an inventor will assign all or a portion of their legal interests in an invention to a third party, such as an employer, prior to filing the patent application. In this instance, the third party may have the patent application prepared; however, the Declaration or Oath would still have to be signed by the inventor. Typically, an Assignment document would be executed and submitted to the U.S. Patent & Trademark Office with the application. The Assignment document, would then allow the third party to prosecute the patent application through the U.S. Patent & Trademark Office.

If an innocent mistake is made regarding the inventor or inventors, it usually can be corrected. In some instances, the name of a joint inventor may have to be deleted from the patent application. Usually this occurs when joint inventors have invented separate elements in certain claims and those claims, during prosecution of the patent application, have been deleted entirely or modified to delete the specific elements.

For more details on Apply for a Patent visit at haftvalue Source: Article Factory, Subhash

Book details - patent

Protect What You Create With A Copyright

2011-12-04T10:50:00.000-08:00

In the United States there are millions of people every year who create original music, research, or write books and other forms of creative expression. These are covered by the term intellectual property and are given protection under copyright laws. If you are a publisher, writer, or editor it is crucial that you are knowledgeable about copyright issues more than ever. With the Internet there has been an enormous increase in counterfeiting and pirating of books, music, and other intellectual property. A report last year from the World Customs Organization indicated over a half a billion dollars in counterfeit and pirated products were put in the marketplace globally in 2005.

Every business in the United States is susceptible to Intellectual Property theft; small businesses are at an even greater risk. Individual writers and owners of small publications offer a large cache of information for intellectual property thieves to grab, and as I pointed out above, the Internet has made it very easy to do. To guard against this happening to you or your company you need to know what your rights are.

A copyright under U.S. law protects authors of "original works of authorship" fixed in any material medium of expression. This can encompass sounds, notes, words, numbers, pictures, and virtually any other media. Works that are covered under copyright law are diverse and include artistic, architectural, literary, dramatic, audiovisual, and musical. A work does not have to be published to be covered.

According to the copyright law passed in 1976, the owner of a copyright has the exclusive right to distribute, reproduce, perform, and display their work. The rights are transferable by the owner who may license them, sell them, donate them to charity or even leave them to their heirs. According to the law, it is not legal to violate any of these rights, and if the owner of a copyright wins in a claim for copyright infringement, the court may order both preliminary and permanent injunctions barring any and all present and future infringements and may also order the surrender of the offending materials.

Many people think that there is some big process they have to go through in order to obtain a copyright. The fact of the matter is your work is protected by Copyright Law when you create it and it is placed as a copy or recorded the first time. An article you write is protected, as is a song or music whether it is in sheet music, on a CD, or both forms of media. Despite this fact it is still recommended that you register formally with the Copyright Office to establish a public record and give yourself concrete legal protection for any suits filed in court.

A copyright gives you protection for 70 years after your death or if you created the work with another it lasts 70 years after the last surviving author's death. As far as anonymous works and works that were made for hire, the time is extended to as long as 120 years from the date of creation.

Unfortunately there are no international copyrights to guarantee you copyright protection globally, but most countries recognize the Berne Convention on the Protection of Literary and Artistic Works and/or the Universal Copyright Convention. These are the top international copyright agreements for providing foreign authors with copyright protection. If you are in doubt about whether or not a work you have is protected, be sure to consult with a qualified copyright attorney. That is the only way to be absolutely sure you have all the bases covered.

Due Diligence in IP

2011-11-14T14:59:00.000-08:00

The importance of due diligence in any investment, merger, or acquisition decision cannot be understated. Decisions can no longer be made based solely upon a good business plan. In today's knowledge based economy intellectual property (IP) is often a company's single most valuable asset. However, IP due diligence is typically an afterthought.

The Goals
The goals of IP due diligence should be collaboratively identified by the organization leading the general due diligence investigation and the IP due diligence team. The goals should then be reduced to an IP due diligence plan.

The IP due diligence team should consist of independent IP counsel. The target company's IP counsel should not be used as one can never fully critique their own work, in addition to the potential conflicts of interest.

Several factors must be considered in identifying the goals of the plan. First, the team should discuss the nature of the transaction. IP due diligence goals will differ for investments, mergers, and acquisitions.

Secondly, the financial value of the transaction must be considered. There is no use in completing $1 million in due diligence for a $1 million dollar transaction. Third, the risk associated with the transaction must be analyzed. For instance, a $1 million venture capital (VC) investment in a high-tech start-up has a much higher probability of loss than a $100 million merger of established companies.

Fourth, the underlying reason for the transaction should be discussed. For example, if a company is acquiring a target company for a particular product line or technology there should be a primary focus on the IP protecting that interest.

The Scope
The scope of IP due diligence investigations is limited by the goals identified above. The scope of IP due diligence should include investigations into the patents, trademarks, copyrights, and trade secrets of the target company to identify weaknesses, potential liabilities, and potential opportunities.

There are some general considerations applicable to all forms of IP. For instance, all of the target company's current IP should be identified and cataloged, including current patent and trademark applications. This process should identify the dates of application, issuance, expiration, required maintenance payments, and whether foreign IP protection has been obtained. Additionally, the true ownership of each piece of intellectual property must be identified.

This is particularly true for IP that has been licensed or assigned to the target company. Ownership verification requires meticulously analyzing assignments and licensing agreements, as well as cross-referencing the Patent & Trademark Office files. A golden rule of IP due diligence is to independently verify everything!

There are several aspects of IP due diligence that are unique to situations wherein the target company possesses a patent portfolio. A complete investigation into a company's patent portfolio can be expensive, yet the cost is typically a drop in the bucket when compared to the cost of litigating a patent infringement claim. Carefully identifying the goals of the IP due diligence investigation will often eliminate the need to completely analyze over half of a company's patents. After all, there is no need to perform due diligence on outdated IP that the company no longer uses. Alternatively, IP that is essential to a company's operations should be afforded additional scrutiny.

An IP due diligence plan should include an infringement analysis of the company's key IP assets. Key patents should be analyzed first to determine if they sufficiently cover the product line of interest. It is not uncommon to find that a company's patent portfolio does not adequately protect their main product lines.

The analysis should then turn to competitor's products. It is essential to identify potential infringement lawsuits during the due diligence investigation. One must determine both whether competing products infringe the target company's patents and if the target company's products infringe patents owned by third parties. During this investigation the IP due diligence team can also identify whether the target company's patents are very broad and strong or narrow and weak. The strength of patents has a direct relationship to their value.

A target company may be willing to contribute to the cost of the infringement analysis portion of the IP due diligence. This is because a non-infringement opinion from counsel can protect a company from claims of willful patent infringement. When a company relies in good faith on a competent opinion of an attorney that the company's product does not infringe a third party's patent, the company will not be held to be a willful infringer. This is important because actual damages can be increased threefold in cases of willful infringement.

Comprehensive due diligence investigations into trademark, copyright, and trade secret matters are not nearly as involved as patent investigations. However, when mergers or acquisitions involve ownership transfer of valuable trademarks it is imperative to investigate the validity, ownership, and potential infringement claims of the mark.

Conclusion
IP due diligence is necessary to avoid costly mistakes and properly determine the value of business transactions involving IP. This is true for both traditional brick and mortar companies and high tech companies. The specialized nature of IP due diligence requires that an IP attorney be retained to properly perform the investigations. isnare, David Dawsey

iPhone Trademark

2011-10-28T19:37:00.000-07:00

Apple has already filed for the rights to the iPhone trademark. They also suggested that the company use the moniker in order for the trademark to become popular. This filing was made months before the Apple iPhone was launched on June 29 of this year.
The Apple iPhone's launch had been eagerly anticipated simply because it promised to be a mobile digital electronic device that is capable of doing what the other mobile models don't, such as sending and getting calls, faxes, email and other data such as MP3 and downloads. But it also promises to do so much more.
Apple has invested billions in order for the software to live up to the customers expectations. Surely, they have managed to do well because of the unprecedented sales of the mobile. In fact, they also struck a partnership with Cingular, asking them to only sell the mobile if the potential customer is willing to sign a 2 year contract with the provider.
However, there have been discrepancies in Apples filing for the trademark rights of the iPhone. Up to now, it is still being examined. Apple tried to get the trademark in March and also filed the same request in South Africa.
Journalists and analysts both often use iPhone to refer to Apples cell phone initiative, in order to follow up the success it received from the MAC and the iPod. Apple, though, faces more challenges in the mobile phone industry. This comes in the form of the two giants; Motorola and Nokia.
Chief executive officers of the company are already betting on the increased stocks Apple will gain because of the popularity of the mobile and they may not be wrong. In fact, they have commissioned for the prototypes that were released to their manufacturing partners which helped in getting the world the iPhone.
People who have been around Apple so long know that the company's technique is to design the handsets in such a way that it conforms with the previously released models but it leverages higher in the sense that the digital features are better than those of the mobile phones released before. Read history about iPhone
Inspired by the success of the iPod nano, the next marketing strategy for the Apple iPhone is to make it available in the candy colors which made iPods sell more. They say that they will make the iPhone available in three colors soon. Source : FreeArticles

Protecting Intellectual Property

2011-10-13T16:55:00.000-07:00

Among its many influences on modern culture, the Internet has provided a virtually unfettered outlet for writers, artists, musicians, inventions and ideas. Today more than ever, an individual's creative contributions can take on lives of their own, generating wealth in ways and from ideas the author or inventor never imagined. Such intellectual property has value under the law and should be included in an estate plan to protect heirs' rights to preserve those creations and any related financial gains.

John Steinbeck's works provide a case in point. In 2006, a U.S. district judge in New York granted publishing rights for 10 Steinbeck works to son Thomas Steinbeck and granddaughter Blake Smyle, who had cancelled rights to the works held by a publisher and the children of Steinbeck's third and last wife, Elaine, among others. Thomas Steinbeck is the author's son by his second wife. The granddaughter is the child of the couple's second son, John Steinbeck IV. The convolution of family relationships--first wife, second wife and children, third wife and step-children--illustrates the need for specific instructions in the estate plan and related documents such as a will for who will receive the rights and responsibilities for the intellectual property.

What if, however, the value of the property hasn't been determined--or possibly even imagined--at the creator's death? Author Robert E. Howard committed suicide in 1936 at age 30--46 years before Arnold Swarzenegger brought Howard's character Conan the Barbarian to life on screen. Prior to his death, Howard's works had only been published in Weird Tales and similar pulp fiction magazines. Paperbacks didn't appear until the 1960s, followed by comic books in the '70s and the film in 1982. Howard's father, his only surviving relative, could not have foreseen the popularity the works would garner in the decades following his son's death.

Intellectual property, defined by law as expressions of ideas and knowledge, falls into two categories: works protected by copyright, such as writings, music and visual art, and those protected by patents, including processes, machines, designs for manufactured items, software and internet applications and food products. Copyright protection begins at the moment of creation, with no action needed by the creator, and lasts 70 to 120 years, depending on the date of creation. Patent protection requires an application and approval from the U.S. Patent & Trademark Office and lasts 14 or 20 years from the date of application, depending on the type of patent.

Both types of protection can be transferred during the creator's lifetime or at death by a will or probate. Patent owners may transfer the ownership of the patent or grant licensing rights through a written document. Copyright transfers require a written document for exclusive rights but not for nonexclusive rights. Additionally, special copyright rules apply for works created under a contract or employment of another party, with ownership of the copyright usually residing with the creator unless otherwise specified in writing. If the creator sells the work itself, he usually retains the rights to the idea itself.

If that sounds complicated, you're right. That's why legal and estate professionals often recommend that individuals who anticipate bequeathing intellectual property rights name a qualified expert in the area (music, art, writing, etc.) to manage those issues. An entrepreneur whose intellectual property may be tied to his business should seek tax advice on transferring those rights to his heirs. Determining the value of these assets can be difficult, so professional help will be needed in that area as well.

Individuals often think only of tangible assets--real estate, securities and other personal property--creating a financial plan. Those whose work touches on copyright or patent issues should include detailed plans for those assets as well. Free Articles

How Do I Copyright My Music?

2011-09-21T12:32:00.000-07:00

Protection of copyright has always been a significant issue for the music industry. The advent of MP3 technology has seen a rapid increase in copyright infringement as audio files can now be quickly and easily distributed over the Internet.

Record companies have always taken active measures to combat infringement; however, this is proving to be an increasingly complex task as the anonymity of the Internet makes it difficult to identify those involved. Gathering sufficient evidence to commence proceedings is also difficult where information is stored electronically and can be amended or deleted with relative ease. Details of file structures, alteration and deletion details, email traffic and website usage logs can be helpful, particularly where there are gaps in the visible electronic record. Gaining access to electronic records in a format that allows forensic analysis of this information may become important in the context of copyright infringement.

Background to case

Sony Music, Universal Music and EMI Music (collectively, the record companies) identified that users of networks operated by each of the Universities of Tasmania, Sydney and Melbourne (the universities) were involved in copying and distributing audio files containing unauthorised copies of copyright sound recordings. During negotiations, the universities agreed to make backup copies of servers containing relevant websites, email systems and other files, in order to preserve the information for future use.

Subsequent investigations by the record companies could not identify precisely who was involved in infringing their copyright or provide sufficient evidence to determine whether the record companies could commence proceedings for copyright infringement. They sought access to the preserved material through preliminary discovery from the universities to try and further these investigations.

Preliminary discovery application

An application for preliminary discovery (Order 15A Rule 3 of the Federal Court Rules) from a prospective defendant or non-party may be made to assist an applicant determine against whom, and on what grounds, the applicant can commence proceedings. Orders will be made only if the applicant has been unable to obtain the information through reasonable enquiries and has reasonable cause to believe that the party has information or documents that may be relevant to the issue of identity or their right to obtain relief.

Extent of access – protection of privacy and powers of the Federal Court
The record companies proposed orders that would grant them access to all of the preserved material for searching as they saw fit. They argued that the rules governing preliminary discovery were beneficial and so should be interpreted broadly. They contended that any document that contains relevant information (even if it contains other information) was discoverable. As the CD-ROMs and tapes contain some relevant files (and are documents), they were entitled to access all of the information on them.

The universities were concerned that such an order did not protect the legitimate interests of the Universities or their users. They argued that the protection of the privacy of non-involved users of their networks was an important public interest and the access sought by the record companies allowed an impermissible degree of 'fishing'. They contended that only individual records that were relevant to the issue of identity, or a right to obtain relief, fell within the scope of the rules, and so orders for discovery could be made only in relation to those individual records.

A balancing act

Justice Tamberlin acknowledged that there was a tension between allowing broad access to the CD-ROMs and tapes, which impacts on third parties' rights to keep information confidential and the universities' rights to maintain claims of privilege, and allowing limited access, which may limit the usefulness of the discovery exercise for the record companies. His Honour said that the real issue for the court was exercising its discretion in a manner that balanced these competing interests.

Justice Tamberlin accepted the technical evidence given by the computer forensic expert called by the record companies as the basis for his orders and proposed the following process.

After giving appropriate undertakings as to confidentiality, the expert (or another nominee) was to be given access to all of the CD-Roms and tapes to search the material using the techniques and search tools he had suggested.

Information extracted from the searches was to be given to the universities. The universities could then seek legal advice in relation to claims of privilege or confidentiality (His Honour considered that this was an important protection).

The universities were to prepare an affidavit of documents and allow inspection of those documents contained in the affidavit.

What does this mean?

The decision shows the willingness of the court to adapt existing frameworks, developed in the context of paper files, to deal with the challenges presented by electronic records. Armed by technical evidence given by experts, the court will make orders that seek to recognise both the challenges and opportunities that electronic records present for parties.

The exercise of the court's discretion to make appropriate orders will be a key limitation. It appears that the court will rely heavily on expert evidence to inform it as to the amount, and type, of electronic information that should be accessible. Expert evidence that is appropriate and user-friendly will go a long way to ensuring that the court understands the technical issues and makes orders that appropriately balance the competing interests of the parties and other uninvolved third parties.

How To Choose Good a Patent Attorney

2011-08-15T11:04:00.000-07:00

Selecting the right patent attorney is a crucial step in the invention process. Your patent will only be as good as the patent attorney drafting it.

You should select an attorney whose engineering background relates to the field of your invention. There are four types of engineers, mechanical, chemical, electrical and computer science.
Ask the attorney, what kind of engineer he is, how long has he practiced patent law, how many patents has he drafted and for what kinds of inventions.
Only choose an attorney who can give you a quote for what the entire bill will be. They will have to inspect your invention first. Ask how the payments will be arranged.
Use a patent attorney that hires an independent professional patent searcher. An in-house searcher would provide a conflict of interest, leaning towards making the patent search more favorable.
You should select a patent attorney who is also an engineer. Both skills are needed to construct a good patent document.
Trust you intuition and only choose an attorney who you feel understands your invention.
Interview different attorneys until you have made your choice. You will be working with this individual for 2 to 3 years.

Tips:

Most reputable patent attorneys charge between $3,000 to $10,000 for a well-drafted patent application including the drawings and filing fee. Anything less than $3,000 should be scrutinized.
Educate yourself about the patent process and understand as much as you can. It will help you work better with your attorney.
You could hire a patent agent instead of an attorney, but the patent agent will not be able to litigate for you if any infringement issues arise.
Never deal with a salesperson, in choosing an attorney always deal directly with the attorney.

By Mary Bellis, Inventors
Read More at :http://www.inventor-mentor.com

Intellectual Property Management

2011-07-24T01:29:00.000-07:00

Intellectual property management is that the act of managing your intellectual property, conjointly known as IP. Now I'm positive you may be thinking to yourself right now 'No duh, tell me something I do not already understand', well I don't mind if I do. Before I will extremely begin to clarify intellectual property management I first have to supply a bit of data concerning IP.

Primarily intellectual property can be any kind of work that has been created by a personal or company. The scope is pretty so much and will cowl such things as industrial property like inventions, emblems and styles to copyrighted materials of creative works like literature, music and photography. An idea however isn't thought of a kind of IP. Your plan will only become an IP when work is been applied it, like writing the thought down or coming up with it and therefore the additional work you place into your idea the additional of an IP it will become.

Another half of intellectual property that you might have heard of are copyrights and patents. To briefly justify the distinction a copyright protects an IP that's meant to be copied like music or books, while patents are meant to shield the method of creating a product, for instance the approach the integrated circuit topography of a product is designed.

Ok, now that we have a tendency to have intellectual property out of the method it's pretty easy to perceive that managing any type of IP will involve a significant quantity of paperwork, deadlines, docketing, maintenance and communication, particularly when it comes to copyright and patent offices. This can be a time consuming procedure and each action usually needs immediate attention followed by prompt responses. As your IP portfolio grows managing these several responsibilities and administrative requirements will become a full time job.

Trying to stay on top of all matters will become quite taxing for a brand new company or individual and will clearly detract from free time which would be a lot of beneficially spent coming back up with new ideas. This can be where an IP management professional will come back in handy.

Intellectual property management is really all concerning identifying your IP assets and maximizing the profits of your portfolio. Your IP management policies ought to be consistent with your overall business strategy, whereas at the same time helping you to identify opportunities and manage risks to create business decisions in an organized and effective manner. With a properly developed IP management policy in place you'll be able to take advantage of your portfolio together with generating revenues from previously unused IP assets.

As a replacement company, or maybe a solo individual, this might all sound terribly daunting. If you have been acquiring patents and growing your portfolio it may be time to enlist the help of a professional to manage your IP for you. They will be ready to assist you acknowledge opportunities for licensing and different revenue generating concepts that you'll not have remember of at all. There are various corporations specializing in IP management however before signing any contract create positive you do your analysis and ask for a few recommendations from their previous and current clients.

adam howard

Copyright Infringement

2011-06-12T02:35:00.000-07:00

Copyright infringement occurs when someone other than the copyright holder copies the “expression” of a work. This means that the idea or information behind the work is not protected, but how the idea is expressed is protected. For example, there have been many movies about Pirates, but only one Jack Sparrow.

Copyright infringement can occur even if someone does not copy a work exactly. This example of copyright infringement is most easily apparent in music and art. Copyright infringement occurs if the infringing work is “substantially similar” to the copyrighted work.

To fully understand copyright infringement, you must understand what rights you hold as a copyright holder. You own more than just the rights to reproduce the work filed with the US Copyright Office.

An owner of a copyright owns a “bundle” of rights. Each of these rights can be sold or assigned separately. Copyright infringement occurs when one of those rights are used without the express consent of the copyright owner. The rights owned by the owner of a copyright include:

The Right to Reproduce the Work. This is the right to reproduce, copy, duplicate or transcribe the work in any fixed form. Copyright infringement would occur if someone other than the copyright owner made a copy of the work and resold it.

The Right to Derivative Works. This is the right to modify the work to create a new work. A new work that is based upon an existing work is a "derivative work." Copyright infringement would occur here if someone wrote a screenplay based on his favorite John Grisham book and sold or distributed the screenplay, or if someone releases or remixes of one of your songs without your consent.

The Right to Distribution. This is simply the right to distribute the work to the public by sale, rental, lease or lending. The music industry lawsuits targeting file-sharing web services claim that these services violate the right to distribution held by record labels.

The Public Display Right. This is the right to show a copy of the work directly to the public by hanging up a copy of the work in a public place, displaying it on a website, putting it on film or transmitting it to the public in any other way. Copyright infringement occurs here if the someone other than the copyright holder offers a work for public display.

The Public Performance Right. This is the right to recite, play, dance, act or show the work at a public place or to transmit it to the public. Copyright infringement would occur here if someone decided to give performances of the musical "Oliver!" without obtaining permission from the owner.

There are three exceptions to the copyright infringement rules, which allow one to reproduce another's work without obtaining a license or assignment of rights:

Fair Use. This is a doctrine which permits the reproduction of copyrighted material for a limited purpose of teaching, reviewing, literary criticism and the like. Without the “fair use” doctrine, books and movies could not be reviewed and colleges and high schools would not be able to study works by people like Arthur Miller. This is also how television programs such as The Daily Show are able to use copyrighted material in their commentary. "Fair use," however, is determined on a case-by-case basis.

Public Domain. This refers to works which are no longer covered by copyright law. For example, the song “The Star-Spangled Banner” can be performed without ever paying license fees to anyone because the copyright has expired.

Non-Copyrightable Works. Copyright infringement cannot occur when someone uses material that cannot be protected by copyright, such as facts or ideas. However, if someone puts a bunch of facts into the form of a book (e.g. The Farmer’s Almanac), copying all or part of that book would constitute copyright infringement.

The most important first step you can take to avoid copyright infringement of your own work is to register your work with the US Copyright Office. If you discover that there has been copyright infringement involving your work and you haven’t registered with the US Copyright Office, you won’t even be able to commence a lawsuit for the copyright infringement until you have registered the copyright to your work. Thanks : http://www.clickandcopyright.com

How to Protect Your Content With Copyright for Free

2011-05-27T19:15:00.000-07:00

The protecting copyright fact sheet has been produced to help authors of original works identify potential problems and understand how to more effectively protect their rights. The following points are recommendations aimed at minimising future risks.

Copyright notices
The notice should be obvious and legible, and if applicable, (e.g. web sites) the notice should appear on every page. Mark any copies of your work with a notice, on the body of the work as well as the cover or sleeve.

The notice should take the form of:
- The actual term copyright.
- The copyright symbol ©.
- The year.
  Normally when first published, but for unpublished work, use the year it was written.
- The name of the owner.
  This can be an individual, collective or organisation.
  e.g. Copyright © 2000 Joe Smith.
- For sound recordings you should also include a phonogram rights notice for the sound recording itself, using the phonogram symbol to denote the copyright of the sound recording.
  e.g. Copyright © 2000 Joe Smith/ 2000 Joe Smith
Extending the notice
You may also include additional statements expressing your wishes as the owner.
For most uses, a simple all rights reserved statement is sufficient.

Depending on the work and how you wish it to be used, you may choose a more explicit declaration, such as:Any unauthorised broadcasting, public performance, copying or re-recording will constitute an infringement of copyright.

There are many available wordings, depending on the terms acceptable to the owner, for more examples, check similar works by other authors.
Supporting evidence
Additional evidence to support your claim in case of dispute.
- In software include footprints (deliberate mistakes, algorithms etc.) which can uniquely identify you as the author.
- Include watermarks or comments in electronic image files.
- Keep as much of the background work as you can, e.g.
  Lyric sheets, music score, midi files, demo tapes and rough recordings.
  Working documents, sketches and drafts.
  Earlier versions, prototypes and out takes.
  (These items can also be registered with UKCS to ensure they will always be available as evidence to protect your work).
If you ever make a claim to a tribunal or court this can be very valuable as it demonstrates evolution of your ideas.
Register your work
To prove your work was created before a certain date, and to give stronger supporting evidence, we recommend that you register your work with us, so we can substantiate your claim in case of a dispute.

Once registered, you are also permitted to state: "This work is registered with the UK Copyright Service" as an extra deterrent against infringement.How to register a copyright and protect your creative work: A basic guide to the new copyright law and how it affects anyone who wants to protect creative work
Agreement between co-authors
In the case of work jointly authored by a collection of individuals, you should have some agreement, whereby if a member of your group or collective leaves you are all clear what will happen to the copyright of your work.

The most straightforward method to take when deciding your agreement is to think of the collective or principal writer/writers as an employer for whom you work. (Normally if you produce work under contract for a business or third party, the business will hold the copyright to that work).

Here are some points to bear in mind when coming to your agreement.
- If one person writes the bulk of the work, they may wish to take the work with them if they leave.
- If works are written as a group effort, will they remain the property of the remaining members after one of more of the authors leaves?
- Rights may exist in different forms. In music for example, lyrics will be protected as a literary work, the music will be protected as a musical work, and a phonographic right will exist in any sound recordings. For the purposes of an agreement, it is normally easier to include them as part of the overall work, but think through what this means to each of you.
- What happens to royalties and commissions if any work is later published or sold?
The key point is to think ahead, even if you think things will end amicably they may not, and it may cost you your friendship as well. The time to decide is before someone leaves, not after!Copyrights, Patents and Trademarks: Protect Your Rights Worldwide
Points to note
- If a work is produced as part of your employment normally the work belongs to the company which hired you, unless there is an agreement to the contrary.
- For freelance or commissioned work, rights will usually belong to the author of the work, unless there is a contrary agreement, (i.e. in a contract for service).
- Only the owner of the work, or his exclusive licensee can bring proceedings in the courts against an infringement.
- Names, colours, inventions or ideas are not protected, but works expressing or composed from these concepts may be.

Source : http://www.copyrightservice.co.uk

Small Intellectual Property : Geographical Indication (GI)

2011-05-08T02:01:00.000-07:00

In general, geographical indications are intended to designate product quality, highlight brand identity, and preserve cultural traditions. Examples of well-known geographical indications include Champagne, Florida Oranges, Prosciutto di Parma, and New Zealand Lamb. While most often used on food products, geographical indications can be used to identify any product (e.g., Czech crystal, Swiss watches, Indian carpets) that may be associated with a specific geographic place.

The use of geographical indications allows producers to obtain market recognition and often a premium price. With the increased internationalization of food and product markets, geographical indications have become a key source of niche marketing. Geographical indications are also often associated with non-monetary benefits such as the protection of knowledge and community rights.

Controversy arises when names that are protected in one region have a common usage in another. For example, products such as Dijon mustard, Feta cheese, or Basmati rice may be viewed as having obtained a generic status in the marketplace. Thus, some may claim that these names should not belong exclusively to a specific group of producers in a specific geographic location as consumers expect these names to identify a class of product that can be produced in one of many locations. On the other hand, others argue that the products associated with the name have a certain quality that derives from the geographic region and specific production process used. Thus, the protection of the name helps prevent the development of a generic association thereby preserving the ability of the product to be made in the traditional manner.

Geographically based products may be found in all parts of the world, both old and new. While the arguments about the value and necessity of legal protection for their names may be disputed, it is clear that there are foods that do contain qualities that derive from their geographical origin. Source : Geographical Indication , wikipedia

Some reading make you more understand :

Geographic indications battle heats up in WTO meetings.(World Trade Organization )(Brief Article): An article from: Food & Drink Weekly

EU moves to protect geographic indications of food products.(Brief Article): An article from: Food & Drink Weekly

U.S. claims victory in WTO geographic indications case.(World Trade Organization): An article from: Food & Drink Weekly

Intellectual Property News : The film business tries to learn from others’ mistakes

2011-04-15T23:11:00.000-07:00

HOLLYWOOD came late to the internet. Protected for years from digital piracy by huge file sizes, it was not forced to develop an online retail model, as the music business was. Nor, having watched newspapers struggle on the internet, did it much want to try. This week it finally stepped forward, touting two systems for selling films and television shows online. The initiatives are well thought-out, reflecting the lessons learned from watching others’ mistakes. But they may also be too late.

Legal film downloads in America accounted for just $250m last year, according to Adams Media Research. In many countries there is no legitimate market. That would not worry anybody, except that sales of DVDs, the silver discs that rebuilt Hollywood’s fortunes over the past decade, are faltering. They have fallen from $12 billion in 2004 to $8.7 billion in 2009 (see chart). It seems that consumers have rediscovered renting—which is less lucrative for Hollywood—through the post and the rapidly-proliferating kiosks owned by Redbox.

Hence the eagerness to sell online. This week the Digital Entertainment Content Ecosystem (DECE), a consortium that includes five of the six big studios as well as technology firms and retailers, agreed a format for digital films and named a single outfit to keep track of purchases. Consumers will be able to buy a film once and then play it on different gadgets. As it will be held on a remote server, they will not have to transfer it from device to device. Disney, the studio shunning the consortium, has a similar initiative called Keychest.

DECE’s initiative aims to stop a company doing to film what Apple has done to music and Amazon threatens to do to electronic books. By taking a huge lead in the market, and by tying content to their own devices, the iPod and the Kindle, these firms have been able to dictate terms to media firms. Instead of a closed system, Mitch Singer, the head of DECE and a Sony employee, wants to create something more like the CD or the DVD—an open format that will encourage competition and innovation.

One problem with the new scheme is that Apple is not on board. It already offers film and television downloads through its iTunes store. Another difficulty may be convincing consumers to pay for something “in the cloud” that they cannot touch. Set the price for online films too low, and the studios will revolt against a threat to DVDs. Set it too high, and people will probably go on renting, or downloading films illegally.

- The economist

How Copyrights And Patents Affect Your Business

2011-03-17T08:57:00.000-07:00

What’s Intellectual Property?

Registered patent attorney Patricia McQueeney explains, “Intellectual property can be broken down into four types: patents, trademarks, copyrights, and trade secrets.”

• A patent deals with a completely new invention — a useful item, a novel look on an already-existing item, or a new plant species. Depending on the type of patent, they’re good for between fourteen and twenty years. The scope of a patent is defined by its claims. A claim is only one sentence but it may go on for pages, which is why it’s best to hire an experienced patent attorney.

• Copyrights protect creative expression — books, web sites, songs. There is such a thing as common law copyright, which means that you have rights when you create something. The difficulty lies in proving you were first to create it.

The forms aren’t complicated, and you have a lot more protection in an infringement suit. The copyright is good for your lifetime and seventy years after you die, and you can make it assignable to anyone upon your death.

Copyrights don’t protect the information found in a book or on a web site, but they protect the lay-out and presentation. For web sites, registering your first and last twenty-five pages of code protects the code for your entire web site and the creative expression of your display screens.

• A trademark designates an object’s source — it’s a mark or name associated with quality.

In trade mark law, arbitrary names are encouraged — Kodak, Kleenex, Apple.The less your trademark describes your product, the stronger it is. If you sell film, using “Film” as a trademark won’t hold up in court. Again there are common law trademarks, but they’re hard to prove and offer less protection than a state or federal trademark (http://www.uspto.gov).

• Trade secrets are governed by state laws and vary from state to state. They encompass a variety of things from formulas (think “Coke”) to customer lists to product sources. Many companies have contracts that expressly prohibit their employees and vendors from giving away any information they’re exposed to while doing business with them. Commonly known facts aren’t considered trade secrets so it’s good to be discreet with your valuable information.

Get It In Writing
It’s important to remember that copyrights and patents give rights to the person who comes up with the idea, not the company that employs them. So if you hire someone to design your web site, the creator owns it unless you have the copyright assigned to you in writing. That’s why many business owners state in their employee agreements that any works or useful inventions created on company time with company funds will be assigned to the company. Cautions McQueeney, “You don’t own it unless you get it written over to you. Isnare- Chris Malta & Robin Cowie

How To Handle Trade Secret ?

2011-01-19T22:03:00.000-08:00

Trade Secret Law Origins

The first assertions of trade secret rights are reported to be in England in the sixteenth century. In the United States, the first United States case was in Massachusetts in 1868.

When Do You Have a Trade Secret?

Most states have adopted some form of the Uniform Trade Secret Act (UTSA). The UTSA sought to provide some consistency in trade secret law that, until recently, was protected only by state laws. The Act defines a trade secret as:

"..information, including a formula, pattern,compilation, program, device, method, technique, or process that:

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."

When you have information that has economic value as a result of its secrecy and you use reasonable efforts to keep it secret, you have a trade secret. There is no registration of trade secrets.

There is now also federal protection of trade secrets under 18 USC 1832 that defines and protects trade secret use, copying and theft in similar fashion to the UTSA.

A good example of a trade secret is the recipe for Coca Cola.

What's Required to Have a Trade Secret?

In order to keep the trade secret status of information, you must keep it secret.

For example, if you wanted to maintain trade secret protection of the code for your website, you would have to program the pages so that the "view source" option would not allow Internet users to freely view the code.

Other steps to take would be using confidentiality agreements to maintain its secrecy in business deals and discussion, allowing only employees who must know the information to have access to it, and keeping the information in a secured environment.

What Do You Have When You Have a Trade Secret and Is There Any Risk?

Having a trade secret means that you have a legal cause of action for damages, or an injunction to stop the use, if another party steals, copies or uses your trade secret without your permission.

The risk to maintaining trade secret protection is that you do not take advantage of other forms of intellectual property protection such as patent and copyright that require registration and disclosure.

Patent, upon granting of your application, requires full disclosure of the information patented. Copyright registration recognizes some trade secret protection and permit abbreviated registrations for some items, such as computer programs. In addition to missing these other intellectual property protections, the registration process provides proof of your ownership of the material as of the registration date.

In most intellectual property cases, the other party claims that he or she, in fact, created or used the item or information first and that your use is unauthorized. Therefore, it will be necessary to prove that you originally created and owned the trade secret.

It is vital to maintain dated proof of creation of your trade secret. You can do this cheaply by mailing the information to yourself and retaining the postmarked, sealed envelope. Alternatively, you can deposit a copy of the information with a source code escrow company that would maintain a dated copy of the information in storage.

Thanks : findlaw

World Intellectual Property Organization (WIPO)

2010-12-26T07:43:00.000-08:00

The World Intellectual Property Organization (WIPO) is one of the 16 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world."

WIPO currently has 184 member states,administers 24 international treaties and is headquartered in Geneva, Switzerland. The current Director-General of WIPO is Francis Gurry , who took office on October 1, 2008^.183 of the UM Members as well as the Holy see are Members of WIPO.

Non-members are the states of Cook Islands, Kiribati, Marsall Islands, Micronesia, Nauru, Niue, Palau, Solomon Islands, Timor-Leste, Tuvalu, Vanuatu and the states with the limited recognition. Palestine has observer status.

The predecessor to WIPO was the BIRPI (Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle, French acronym for United International Bureaux for the Protection of Intellectual Property), which had been established in 1893 to administer the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industry Property.

WIPO was formally created by the Convention Establishing the World Intellectual Property Organization, which entered into force on April 26, 1970. Under Article 3 of this Convention, WIPO seeks to "promote the protection of intellectual property throughout the world." WIPO became a specialized agency of the UN in 1974. The Agreement between the United Nations and the World Intellectual Property Organization notes in Article 2 that WIPO is responsible

"for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence and responsibilities of the United Nations and its organs, particularly the United Nations Conference on Trade and Development, the United Nations Development Programme and the United Nations Industrial Development Organization, as well as of the United Nations Educational, Scientific and Cultural Organization and of other agencies within the United Nations system."

The Agreement marked a transition for WIPO from the mandate it inherited in 1967 from BIRPI, to promote the protection of intellectual property, to one that involved the more complex task of promoting technology transfer and economic development.

Unlike other branches of the United Nations, WIPO has significant financial resources independent of the contributions from its Member States. In 2006, over 90% of its income of just over CHF 250 millionwas expected to be generated from the collection of fees by the International Bureau (IB) under the intellectual property application and registration systems which it administers (the Patent Cooperation Treaty the Madrid system for trade marks and the Hague system for industrial designs?. For more information please visit official webiste at here WIPO

Source : Wikipedia

Engaging With China Dealing With IP

2010-12-11T20:45:00.000-08:00

China is well entrenched in the global marketplace, but with Chinese piracy reported at 90 percent, it's the third least friendly country for protecting intellectual property(IP).

China's accession into the World Trade Organization started four years ago. With this commitment to regulatory and economic restructuring, China has indeed been a country of economic opportunity for multinational corporations.

In theory, WTO accession means that WTO members can enjoy IP protections. In China, secure those patent protections carefully. Dot the i's, cross those t's and 'watch your language.' Also, anticipate litigation.

According to attorneys A. Jason Mirabito and Carol Peters, in a March 2005 article published in Chip Scale Review: "In the past there was little enforcement of IP in China. However, in 2002, Chinese courts litigated more than 6,000 civil cases involving IP issues. About 2,000 cases involved patent suits. The rest were trademark and copyright actions."

Those 2002 statistics pale compared to recent figures, reported by the International Herald Tribune: In 2005, "Chinese courts dealt with 12,205 civil intellectual property cases, an increase of 32 percent from 2003 and a few dozen two decades ago."

Consider one recent case, which demonstrates that China's legal savvy is climbing with its growing stake in US markets and the global economy. The case also demonstrates the role of US courts in patent and IP protection, along with the perseverant or 'energized' stance required by US companies threatened by counterfeit goods or the prospect of piracy.

Energizer & Eveready vs. Just about Everybody

The dispute started in the spring of 2003, when Energizer Holdings, a US company, and its subsidiary Eveready filed a lawsuit with the International Trade Commission (ITC). The complaint addressed a signature product, a long-lasting battery design —- affecting in particular a line of zero mercury-added alkaline batteries that Energizer has held a patent on for three decades. Also mentioned in the suit are games, toys, and other products manufactured with batteries whose designs are protected.

Energizer asked the ITC to issue a cease-and-desist order and to ban US imports of these products, claiming the batteries exported to the United States by the 26 manufacturers, affiliates or distributors named in the suit had infringed on Energizer's US patent. Among the multiple respondents named in the complaint, nine were Chinese manufacturers, including Fujian Nanping Nanfu. Nanfu Battery is one of China's largest alkaline battery manufacturers and suppliers. Energizer requested the ITC investigation under Section 337 of the US Tariff Act.

At the time of the original filing, China was considered the world's largest manufacturer and exporter of this specific battery with an estimated 75-80 percent of its goods being exported to overseas markets. According to a China press report, "Chinese batteries usually cost between a 10th and a third less than US-made ones, making them very popular in overseas markets."

The ITC handed down a preliminary ruling in 2004, deciding that nine manufacturers from the Chinese mainland and Hong Kong infringed upon Energizer's patent, and recommended banning imports of the batteries. But four months later, the ITC closed its investigation, and ruled that Energizer's patent was invalid because it was …"indefinite as a matter of law…." Or, in the legalese: "The Commission held that Eveready's "proffer of alternative constructions of 'said zinc anode' was an admission of indefiniteness."

In plain terms, the main patent claim, or its language, was incorrectly written. Attorneys Mirabito and Peters reported that the Commission determined "there was no infringement of the Energizer Holdings patents, and the continued importation of Chinese batteries was permitted."

It Just Keeps on Going and Going…

True to the brand as "the battery that never quits," Energizer kept on "going and going," and appealed the ITC's final decision to the U.S. Court of Appeals for the Federal Circuit. In the suit, Energizer named the ITC as defendants. Energizer's main contention was that the issue regarding language was not substantial enough to invalidate the patent.

The Court's January 25, 2006 ruling, and a follow-up March 20 mandate reversed the earlier ITC opinion, finding that the ITC erred and the patent draft was written correctly enough.

"In that regard, we conclude that 'anode gel' is by implication the antecedent basis for 'said zinc anode.' The Commission's holding of invalidity on the ground of indefiniteness is reversed."

In the unanimous ruling, the Court directed the Commission to proceed in accordance with the Administrative Law Judge's prior ruling that the Energizer patent is valid, according to Legal Times analyst, Emma Shwartz.

It was a happy day at Energizer headquarters in St. Louis. "We are pleased that this case has been sent back to the ITC for review," said Michael Pophal, Senior Patent Counsel at Energizer, quoted in a company press release. "By issuing this mandate, the appeals court has cleared the way for additional inquiry into whether those companies that import mercury-free alkaline batteries into the United States are doing so illegally.

If it is indeed determined that they are doing so illegally, the ITC will then determine the appropriate remedy for that illegal activity."

As before, Energizer will seek the general exclusion remedy in the ITC. If the ITC upholds the company's claim, this remedy will bar infringing batteries, including those made or sold by the remaining respondents from importation or sale in the US, and will permit sanction enforcement by US Customs.

What’s Next? A Changing Landscape?

Energizer expects a favorable outcome from the ITC. But even as they await the ITC review, the Internet-surfing public has been reading about the recent ITC mandate in starkly opposite terms: in China, recent press accounts erroneously have been reporting that the Court ruled in favor of Chinese manufacturers. They fail to report that the jury, with respect to the ITC, is still out.

It appears that a gentle, collaboratively toned communication between Energizer and China has helped the situation. Many of the erroneous reports have been pulled from news sites.

While Energizer seems to be battling questionable imports the longest and hardest, they aren't the only company doing battle with Chinese manufacturers and companies alleging technology violations of patents, trademarks and IP infringements.

The litigious ranks include Hitachi-IBM and Cisco, who won its patent battle over the Shenzhen-based Huawei in 2003. Cisco eventually proved that Huawei, arguably the top Chinese provider of switches and wireless infrastructure, had copied the U.S. companies' firmware code line for line into its products. Huawei settled.

Still, other recent cases are coming to favorable conclusions for plaintiffs defending goods in China courtrooms, an indicator that China is serious about its place in the WTO and in the global economy.

-- In late 2005, java giant Starbucks Coffee won its two-year-old case against 'Xingbake' (translation Star Bucks), for trademark and logo infringement. The case was decided in Shanghai No. 2 Intermediate People's Court, and was considered a landmark judgment and litmus test of China's amended trademark laws. Xingbake has filed an appeal.

-- In 2004, Swiss agribusiness and agricultural chemical maker Syngenta was awarded an apology and compensation after its patent infringement lawsuit was successfully concluded against a Chinese business group. The case was heard in a Nanjing court, one known for its expertise in intellectual property.

There is little doubt that China's government will quickly improve its IP stance, but this analyst believes the most effective pressure will come from its own domestic companies, particularly as they evolve from a heavily manufacturing-depending economy to a service and integrated products economy. This more sophisticated economic profile makes IP rights even more critical, because more Chinese companies will have more at stake when IP is violated.

Recent positive announcements make it clear that rule of law increasingly will be guiding China's economy. In the meantime, keep your intellectual property under a close watch, and build trust with your Chinese partners. Good contracts, good guanxi, and good sense will prove invaluable. Isnare, Paul Ward

Guide to Understanding Copyright Infringement

2010-10-26T17:31:00.000-07:00

As you’re creating something, you may wonder what copyright infringement actually is. It’s necessary, if you’re creating a work -- albeit written, musical, videos, software or some other form -- that you know the definition of copyright infringement. This issue is very complicated, and not very easily spelled out in plain English.

Copyright infringement is defined by the jurisdiction -- the United States of America has different copyright laws than the United Kingdom, or Australia, or Russia, or even China. Because of this fact, you should first, before anything else, check the laws in your jurisdiction (country, city and province) before using something that isn’t in the public domain.

For our definition of copyright infringement, works in the public domain aren’t copyrightable. Works that aren’t copyrightable include ideas, works that aren’t eligible (150 years-old documents, or older -- think Beethoven and Frankenstein), data that isn’t categorized in a creative way (this could be a database, such as a phone book or other publicly-accessible data), or items that the owners have specified creative commons copyrights.

As you can see, copyright law is rather complicated. Wikipedia.org gives us the definition of copyright infringement as: “Copyright infringement (or copyright violation) is the unauthorized use of material that is protected by intellectual property rights law particularly the copyright in a manner that violates one of the original copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works that build upon it. The slang term bootleg (derived from the use of the shank of a boot for the purposes of smuggling) is often used to describe illicitly copied material.”

Our definition of copyright infringement includes the works of creative commons. Creative commons is an organization that allows for the copyright author to determine the uses available for people who want to use their works -- for such items as for audio, images, video, text, educational materials, and software. It allows for the copyright owner to allow people to use their works for non-commercial, commercial, no derivatives, share alike, or just by giving attribution. Creative Commons is a license granted by the copyright holder, and can be used in both online (electronic Internet) works and offline works.

The real definition of copyright infringement comes from your jurisdictions statutes. In the United States of America, our jurisdiction’s copyright laws are contained in Title 17 of the United States Code, §501 - §513. You can also find a definition of copyright infringement through such organizations such as the European Union or World Trade Organizations.

Copyright Infringement Statistics

Copyright infringement statistics, by most standards, are inflated. Most recent copyright infringement statistics cite that almost 30 percent of software is pirated in the United States of America. This means they think 30 percent of the software on your computer is illegal.

However, copyright holders have good reason to worry that we’re violating their rules: the number of suspects referred to the United States attorneys with an intellectual property lead increased twenty six percent in the period between 2002 and 2004 -- and this number is rising. Copyright infringement statistics are difficult to come by, but it’s plain to see it’s affecting every aspect of intellectual copy.

Copyright infringement statistics show a lot of violations in pirating software and music. Many unsuspecting people, from college students to thirty-something professionals, download music on a consistent basis, and often it’s not downloaded legally. Often times, someone will download a song off a MySpace or YouTube page, without giving thought to who owns the copyright and if it’s legal for them to have it.

Copyright infringement statistics, brought to us by the music recording industry, would have us believe that online infringement is seriously hurting the recording industry. Statistics also show that many people are downloading games off the Internet. With the litany of games available to us -- from complete alternate worlds such as World of Warcraft to the more mainstream “The Sims” series -- people are clamoring for PC games. They’re fun, intelligent games that play on a system everyone has -- a computer. Because of this, people are always looking for new games to play and download, and they may download a game without knowing that it’s not “freeware” (as many Internet games are).

In addition to computer games, copyright infringement statistics also show that movies are downloaded in abundance on the Internet. Many peer to peer file distribution sites and programs (such as Kazaa) allow transferring of large files; plus they’re easy to find online. Using a tool provided by one of many suppliers, users can search for any item they like -- and, of course, the system is abused and people download copyrighted movies and entire DVDs instead of publicly available works.

Copyright infringement also branches into written works, such as articles, books, poems, etc. Many times, a student will copy a paragraph or two without realizing the implications of such copying. While they may think of it as “borrowing,” if it’s used on a grander scale, the person could be opening themselves up to a large court fight, especially if it’s used commercially.

As you can see, copyright infringement statistics show us that many people use copyrighted works illegally. Do your best diligence when using another’s work -- and ask for permission every time you want to use something that you haven’t created. Chances are, if you just ask the question up front you’ll save yourself from becoming a copyright infringement statistic and save yourself from a major lawsuit.Read more: http://www.articlesbase.com

Copyright Infringement Cases Can Teach Us To Obey Copyright Laws ?

2010-10-10T17:24:00.000-07:00

Copyright infringement cases can be both costly and time consuming. Considering copyright infringement is something that isn’t as easily defined as theft or speeding, there are numerous copyright infringement cases changing the way copyright law is viewed in the U.S. By reviewing a few of these copyright infringement cases, you can get a better idea of what is, and what is not, acceptable use of copyrighted works.

As a forward, however, you’ll need to know something about copyright law. Most copyright lawsuits are brought to the courts because a copyright owner has found their copyright is being used outside the copyright laws.

This usually means the copyright holder hadn’t been asked for permission to use the work; or if they had, the work is not being used in an agreed-upon context or they have not been paid royalties. The copyright infringement cases, listed below, sample of what goes to the Supreme Court in copyright infringement.

Feist Publications v. Rural Telephone Service Co (6th Cir. 1996)
This copyright infringement case was brought to the Supreme Court in 1996 regarding the copyright of a database. The Supreme Court, in this instance, decided that compilations of data (such as in a database) are only protected by copyright when they are “arranged and selected in an original manner.” Although the level of originality needed to make the database copyright-able is not very high, the pages of a directory (such as a phone book) are not protected because the data contained therein is arranged geographically, then alphabetically.

Because of this, the data was not original enough to warrant a copyright infringement charge. The competing telephone company was allowed to tap into their competitors’ database and use that data in their own work without liability.

Princeton University Press v. Michigan Document Services, Inc (6th Cir 1996)
This case has to do with the Fair Use law, which is defined in the Copyright Act of 1976, 17 U.S.C. § 107. In this case, a photocopying service was sued for copyright infringement for making “course packs” for the University of Michigan. In this case, a course pack was a group of reading materials assigned by a professor -- then the course pack was bound together by a professional copy shop.

In the Fair Use system, there is a system available for payment of copyright fees to publishers whose works are used in course materials. The printing shop owner refused to pay the copyright cost. When it went to the Supreme Court, they analyzed the Fair Use code and found that it was NOT Fair Use, and the printing shop had to pay the copyright costs.

As you can see, copyright infringement cases are cases in which someone violates the rights of a copyright owner, as provided by 17 USC §106, or of the author as provided in §106A. These copyright infringement cases can be taken to either criminal or civil court, and can carry with it a hefty fine.

Copyright infringement cases are brought upon people who violate copyrights every day. In recent times, you’ll find many copyright cases in relation to electronic copyrights -- such as those you’d find on a website or PDF file, as well as other digital media such as music and audio files.

It’s probable that you’ve seen copyright cases brought against the common person -- such as a child or family -- for downloading digital music in the form of MP3s. In the current Internet age, it’s not surprising to see so many music and video copyright cases brought to us because of peer to peer file sharing made possible by the Internet. You can be certain that until people know the rules of copyright, and downloading copyrighted material from the Internet, we’ll see many more copyright cases.

How To Protect Your Own Intellectual Property

2010-09-30T12:29:00.000-07:00

Intellectual Property is term commonly used nowadays but only few people have really grasped its meaning. Not too many people understand the legalities involved. Intellectual Property is any intangible asset that consists of human knowledge and ideas. This includes patents, copyrights, trademarks and software. Wherever you are in the world, it is necessary for an individual, a business or an organization to protect and secure its trademark or identifiers. It is powerful in the sense that it can bring in economic growth and increase wealth; may it be for an individual or a business.

Vast information is rising and technology has been constantly evolving. Anything can go wrong since abuses to one's trademark are inevitable. So being online means grasping the challenges of intellectual property: to protect what may be one of your major assets and respecting the rights of intellectual property owners and users.

Be always on the lookout to protect your own interests. A responsible intellectual property owner must conduct a review of his or her intellectual property assets constantly.

Here are some tips to secure what it rightfully yours.

1. Registration - Get your ideas, trademark, or patent registered.

2. Invest in getting legal advice

3. Research and read - Although it is best to listen to what your lawyer has to say, it is still smart to bone up on knowledge regarding intellectual property.

4. Portray a complete image - See to it that you have already considered all the angles involved in your concept before you let the whole world know about it. A good deal of planning with thorough research is very significant.

5. Respect the work and ideas of others - The idea of others may help you in formulating your own trademark but see to it that your concept is all original. As much as you want to protect what is your intellectual property, others are also securing their own.

6. Get real! - It does not come hand in hand that when you have an idea, it will be a great success. It takes an extra mile of effort to make the brand a success.

7. Be competitive - You may not have a competition now but others may come up with the same concept in the near future. So why will you put off protecting your brand. Legal protection will give you the chance to participate in entrepreneurship seminars where you can learn more marketing strategies.

8. Non-disclosure Agreement - This document is necessary to ensure that business partners or new hires will keep the company's trade secrets protected.

9. Legal Security - The national government has existing laws that increasingly recognizes the value of intellectual property and is taking steps to protect your rights of ownership.

10. Have patience - Continue to develop your concept while the license or copyright to your trademark is being processed. This process takes time but our trademark lawyers are here to assist you and make things as convenient as possible.

Notary public parramatta sydney takes pride in offering professional legal services that touch the lives of others, and positively influence the community around us. It is our pleasure to serve people and serve the community. We believe that this approach is both generous and provides an easy to understand practical solution in what can often be a complex logistical problem. ezinearticles,

U.S. Copyright Law

2010-08-26T21:07:00.000-07:00

The US Copyright Law grants rights to individuals for the works they create. The US Copyright Act of 1790 has changed over the years. The current basis of US copyright law is based on the Copyright Act of 1976. US copyright law is relatively automatic.

Once someone has an idea and produces it in tangible form, the creator is the copyright holder and has the authority to enforce his exclusivity to it. In other words, the person is the owner of the creation. It is not necessary that a person register their work. However, it is recommended and it can serve as evidence if someone ever violates a copyright. It is interesting to note that when an employer hires an employee to produce a work that the copyright is given to the employer.

Violations of US Copyright Law are generally enforced in a civil court setting. However, there could also be criminal sanctions brought against someone who violates US copyright law. Someone in serious violation of US Copyright Law, such as counterfeiting, can find themselves on the inside of prison looking out. People need to understand the copyright symbol is not a requirement. Someone may have a copyright, yet their work may not have a copyright notice or symbol.

US Copyright Law covers a wide range of things that are derived from artistic expression, intellectual or creative work. This includes things such as literary works, music, drawings, photographs, software, movies, choreographic works such as ballets and plays, poems, paintings and more.

The law covers the form of expression, not the concept, facts or the actual idea of the work. This means that someone can use another person’s idea or concept and produce their own take on it. However, copying another person’s work is a violation. some things may not be copyrighted but they may be protected by a patent or trademark.

Individuals who have a copyright on a particular piece of work can do with it what they will. They may choose to copy it and sell it. They may display their work or perform it in public and charge admission, or they can assign or sell the work to someone else. Individuals who have a copyright can also choose to do nothing with their work, if that is their desire.

However, if someone comes along and takes the work and tries to use it in some way, that person is still in violation of the owner’s copyright. Copyrights cover published and unpublished work.

Anyone who is in the creative arts arena should be very careful that they do not violate US Copyright Law. For that matter, anyone who is a fan of the creative arts should make sure they are not in violation of a copyright. Simple things like uploading, downloading and sharing music or movie files can result in serious charges and fines being brought against them.

The popularity of the Internet and file sharing software has increased copyright violations. Copyright owners are starting to take a stand against copyright violators and are hunting down the perpetrators. Be careful you are not overstepping your boundaries and violating someone’s copyright law. Isnare, Brian Scott

Trademark Dilution ?

2010-08-14T08:49:00.000-07:00

Trademark law has evolved to give what is, in essence, a quasi-property right in a "word, name, symbol or device" that identifies and distinguishes one person’s goods (or services) from those of another. 15 U.S.C. § 1127. The justification for this is twofold. First, to protect the public from confusion or deception about who is the source of a given product or, in the case of a service mark, a given service. Second, to protect a business’s investment in the goodwill in the mark. Trademark Dilution: Federal, State, and International Law

Enforcement of such "right" typically takes one of two forms: "Infringement" or "dilution." Laws barring trademark "infringement" seek to protect the first interest. They focus on whether consumers are likely to be confused by the public use of two similar marks. Conversely, laws governing "dilution" seek to protect the second interest. In so doing, dilution jurisprudence focuses on whether the owner’s investment in a mark has been lessened or diminished when someone a third party uses a similar identifier. Put another way, it protects from a "free riding on the investment" the trademark holder has made. I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 50 (1st Cir. 1998).

Trademark Dilution is a Cause of Action in its Own Right

Trademark dilution is not a mere fallback position for an unsuccessful someone who was not able to prove infringement plaintiff. 4 McCarthy on Trademarks and Unfair Competition § 24:70 (4th ed.) (citing 15 U.S.C. § 1127, and Playboy Enterprises, Inc. v. Netscape Communications Corp., 55 F. Supp. 2d 1070 (C.D. Cal. 1999)). Rather, it is a distinct wrong and, therefore, a distinct cause of action.

The First Circuit explained this distinction rather eloquently in I.P. Lund Trading ApS v. Kohler Co.:

[I]f a cocoa maker began using the "Rolls Royce" mark to identify its hot chocolate, no consumer confusion would be likely to result. Few would assume that the car company had expanded into the cocoa making business. However, the cocoa maker would be capitalizing on the investment the car company had made in its mark. Consumers readily associate the mark with highly priced automobiles of a certain quality. By identifying the cocoa with the Rolls Royce mark, the producer would be capitalizing on consumers' association of the mark with high quality items.

Moreover, by labeling a different product "Rolls Royce," the cocoa company would be reducing the ability of the mark to identify the mark holder's product. If someone said, "I'm going to get a Rolls Royce," others could no longer be sure the person was planning on buying an expensive automobile. The person might just be planning on buying a cup of cocoa. Thus, the use of the mark to identify the hot chocolate, although not causing consumer confusion, would cause harm by diluting the mark.

I.P. Lund., 163 F.3d at 50.

The concept of dilution can be further subdivided in two categories: "Blurring" and "tarnishment." Blurring is best described above in the I.P. Lund Trading ApS v. Kohler Co. decision-to wit, it occurs when the "unique and distinctive link" between the plaintiff's mark and its goods or services is muddied and so its value is depressed. Tarnishment, occurs when a famous mark is associated with an offensive or inferior good, or is portrayed in a degrading context, thus lessening the value of the senior mark.Trademark protection and the Internet.(RESOURCE: legal)(Trademark Dilution Revision Act of 2006): An article from: New Hampshire Business Review

In short, the nature of dilution is to eat away at the value of another’s trademark. And, in precluding the otherwise competitive acts that might dilute a mark, the anti-dilution statute gives the mark-holder a much broader property right than a mere claim for infringement does. E.g., The Toro Co. v. Torohead, Inc., 2001 WL 1734485 (Trademark Tr. & App. Bd.), 61 U.S.P.Q.2d 1164. (It is a "bedrock principle of trademark law" that multiple uses of a term as a mark can co-exist when used for non-related goods. Dilution upsets this balance and enables the owner of a famous mark to prohibit the use or registration of the same or substantially similar mark even on unrelated goods.)

Dilution Cases Are Subject to a High Degree of Scrutiny

Dilution is thus deemed to be an "extraordinary remedy." Advantage Rent-A-Car Inc. v. Enterprise Rent-A-Car Co.,

238 F.3d 378, 381 (5th Cir. 2001). As the Fourth Circuit explained:

[W]e simply cannot believe that, as a general proposition, Congress could have intended, without making its intention to do so perfectly clear, to create property rights in gross, unlimited in time (via injunction), even in 'famous' trademarks.

Ringling Bros.-Barnum & Bailey Combined Shows v. Utah Division of Travel Development, 170 F.3d 449, 459 (4th Cir. 1999). See also Nabisco, 191 F.3d at 224 n.6 (quotation marks omitted) ("We agree that the dilution statutes do not prohibit all use of a distinctive mark that the owners prefer not be made .... [W]e agree with the Fourth Circuit that the dilution statutes do not create a 'property right in gross"'); I.P. Lund, 163 F.3d at 47 ("[T]he standard for fame and distinctiveness required to obtain anti-dilution protection is more rigorous than that required to seek infringement protection").Trademark Dilution, 2008 Cumulative Supplement

Thus, a plaintiff in a dilution case is likely to face an uphill battle. 4 McCarthy on Trademarks and Unfair Competition § 24:89.50 (4th ed.); e.g., The Toro Co. v. Torohead, Inc., 2001 WL 1734485 (Trademark Tr. & App. Bd.), 61 U.S.P.Q.2d 1164 (stating that unlike in trademark infringement cases, doubts are not resolved in favor of the party claiming dilution).

This article explains the elements and scope of a federal cause of action for dilution for a mark. Infringement is discussed in [Related Article].

Elements of a Federal Dilution Claim

Section 43(c) of the federal Lanham Act lays out the requirements for pleading and proving a federal dilution claim. 15 U.S.C. § 1125(c). This section, which comes from legislation called of the Federal Trademark Dilution Act (FTDA), says states that the holder of a "famous mark" may stop another from using "in commerce" an identifier that "is likely to cause dilution by blurring or dilution by tarnishment."

That definition sets up a neat four-part test courts can follow to determine if a mark has been, or is likely to be, diluted.

To prove dilution, then, a mark holder must establish all of the following:

(1) the mark is distinctive and famous;
(2) the defendant is using its own mark in commerce
(3) the defendant’s use begin after the plaintiff’s
(4) the defendant’s use is "likely" to cause dilution by blurring or tarnishment

15 U.S.C. § 1125(c).

A Distinctive and Famous Mark

The Lanham Act lays out four non-exclusive areas of proof that can weigh into whether a mark is sufficiently famous to warrant protection from the diluting use of a similar mark. These are: (1) the duration and extent of advertising or publicity of the mark; (2) the amount and breadth of sales of the item; (3) the extent to which it is actually recognized by the public and (4) whether the mark was registered. 15 U.S.C. § 1125(c)(A). These factors are looked at on a "totality of the circumstances" basis, to help a court decide if the mark is "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner." Times Mirror Magazine, Inc. v. Las Vegas Sports News, LLC, 212 F.3d 157 (3rd Cir. 2000)Trademark Dilution Revision Act of 2005: Hearing Before the Subcommittee on Courts, the Internet, and Intellectual Property of the Committee on the Ju

The Lanham Act was amended in October 2006 and these factors are revised substantially from the list of eight included in the previous version of the law. Amending 15 U.S.C.A. § 1125(c). Pub.L. 109-312, § 2, 120 Stat. 1730 (Oct. 6, 2006). It is unclear as yet whether the new formulation will change what marks might be considered sufficiently "famous" to be diluted. Under the earlier version, most courts disposed of the "fame" question summarily. E.g., Amica Online, Inc. v. IMS, 24 F. Supp. 2d 548 (E.D.Va. 1998). So it is possible that the "I know it when I see it" nature of this inquiry might be unaffected.

Under the earlier formulation of the law, however, and as examples to illustrate how the factors historically were applied, the following marks are some examples of those that have been considered to be sufficiently famous and distinctive to warrant protection: AOL, Barbie, Budweiser, Ford, Nike, NASDAQ, and Velveeta. America Online, Inc. v. IMS, 24 F. Supp. 2d 548, 48 U.S.P.Q.2d 1857 (E.D. Va. 1998); Mattel Inc. v. Jcom Inc., 48 U.S.P.Q.2d 1467 (S.D.N.Y. 1998); Anheuser-Busch, Inc. v. Andy's Sportswear, Inc., 40 U.S.P.Q.2d 1542 (N.D. Cal. 1996); Ford Motor Co. v. Lloyd Design Corp., 184 F. Supp. 2d 665, 62 U.S.P.Q.2d 1109 (E.D. Mich. 2002); Nike Inc. v. Variety Wholesalers, Inc., 274 F. Supp. 2d 1352, 1372 (S.D. Ga. 2003), aff'd, 107 Fed. Appx. 183 (11th Cir. 2004); Kraft Foods Holdings, Inc. v. Helm, 205 F. Supp. 2d 942, 63 U.S.P.Q.2d 1353 (N.D. Ill. 2002).

The following marks were deemed not sufficiently famous and distinctive to justify protection: Avery Dennison, for office supplies; Fun Ship, for a cruise line; Weather Guard, for vehicle tool boxes for contractors; We’ll Take Good Care of You, as a slogan for a chain of retail pharmacies. Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 51 U.S.P.Q.2d 1801, 1806 (9th Cir. 1999); Carnival Corp. v. SeaEscape Casino Cruises, Inc., 74 F. Supp. 2d 1261, 52 U.S.P.Q.2d 1920 (S.D. Fla. 1999); Knaack Mfg. Co. v. Rally Accessories, Inc., 955 F. Supp. 991, 42 U.S.P.Q.2d 1649 (N.D. Ill. 1997); Genovese Drug Stores, Inc. v. TGC Stores, Inc., 939 F. Supp. 340 (D.N.J. 1996).

Use in Commerce

"Use," very simply put, means commercial use. Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 903 (9th Cir. 2002) (the inquiry is basic, thought the requirement seems "ungainly.") In other words, the defendant must have employed the famous and distinctive mark – or one nearly identical to it - to sell goods other than those produced or authorized by the mark's owner. Panavision Int’l, LP v. Toeppen, 141 F.3d 1316, 1324-25 (9th Cir. 1988); Mattel, Inc., 296 F.3d at 903 (dilution found where MCA created and sold to consumers in the marketplace commercial products – the Barbie Girl single and the Aquarium album – that bear Mattel’s "Barbie" mark).

A non-commercial use of another’s mark, on the other hand, is specifically exempt from the Lanham Act. This ensures that references to marks that would otherwise fall within the penumbra of First Amendment protections are not inadvertently, and unconstitutionally, also brought within the ambit of the statute. Mattel, Inc., 296 F.3d at 903.

As such, the following activities are specifically authorized by statute:

1. Advertising that invites the consumer to compare goods or services;
2. Speech that "parodies, criticizes or comments upon" the famous mark owner, or the goods or services identified;
3. In news reporting or commentary;
4. In any other non-commercial fashion.

15 U.S.C. § 1125(c)(3).

Prior Use by Plaintiff
Timing is an important factor in the anti-dilution context. This is so because it would be unfair to hold someone liable for the use of a non-infringing, non-diluting mark while another mark gains fame in the marketplace. Hence, a plaintiff in an anti-dilution case must prove that its mark became famous prior to the constructive use date by any potential defendant of the challenged mark. To put it another way, the plaintiff must prove that the defendant first used its mark after the plaintiff’s mark became "famous and distinctive." AM General Corp. v. DaimlerChrysler Corp., 311 F.3d 796 (7th Cir. 2002), related reference, 246 F. Supp. 2d 1030 (N.D. Ind. 2003); Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1013 (9th Cir. 2004), cert. denied, 125 S. Ct. 1825, 161 L. Ed. 2d 723 (U.S. 2005) (the first commercial use of the diluting mark is what "fixes the time by which famousness is to be measured.") As one famous commentator explained, "this requires evidence and proof of the timing of two events: when the plaintiff's mark achieved that elevated status called "fame" and when the defendant made its first use of its mark." 4 McCarthy on Trademarks and Unfair Competition § 24:96 (4th ed.).

Likely Dilution by Blurring or Tarnishment
The last, and according to some, the most complex element in an anti-dilution case is determining when the associations of two marks have been "blurred," or when a mark’s reputation has been "tarnished." Indeed, the Ninth Circuit has said, in these and other respects, the FTDA poses "formidable problems of interpretation." Tahne Int’l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 905 (9th Cir. 2002).

Dilution by "Blurring"
Blurring occurs when the "unique and distinctive link" between the plaintiff's mark and its goods or services is muddied and so its value is depressed. Unlike infringement, with dilution the public isn’t confused about the source of a product, but rather two products will spring to mind when one mark is encountered. Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 903 (9th Cir. 2002); Playboy Enterprises, Inc. v. Welles, 279 F.3d 796 (9th Cir. 2002). The theory of dilution by blurring "thus protects the benefits that flow from a sharp and distinct connection between one mark and one product." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1037 (9th Cir. 2007) (citations omitted).

The Lanham Act provides that whether two marks have been blurred depends on a balancing of six factors:
1. similarity of the marks
2. the extent to which others use the mark,
3. actual association between the marks
4. predatory intent
5. distinctiveness of the senior mark
6. recognition of the senior mark

15 U.S.C. § 1125(c)(2)(B); and, e.g., Mead Data Cent., Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026 (2d Cir. 1989). According to one prominent commentator and several cases, though, the first and fifth factors are the heart of the determination of dilution. See 3 McCarthy § 24:94.1; and, e.g., Hershey Foods Corp. v. Mars, Inc., 998 F. Supp. 500, 520 (M.D. Pa. 1998) (stating that "whether the products are similar or not adds nothing to the analysis" because "dilution can apply to competitors")

The first requirement, that there be similarity between the two marks is, in practice, a foundational requirement for dilution. Indeed, mere similarity is not enough to support a dilution claim – the marks must be "identical or close thereto." Thane Int’l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 905 (9th Cir. 2002); and see Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1029 (2d Cir. 1989); Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 227-228, (2d Cir. 1999)("We hold ... that the marks must be ‘very’ or ‘substantially’ similar and that, absent such similarity, there can be no viable claim of dilution.’"). The fifth factor, distinctiveness of the senior mark, is redundant of that addressed in the foundational "fame" inquiry.

Few courts deal at any length with the remaining four factors. They are deemed less important to the inquiry and their absence will not preclude a dilution claim. See Mead Data Cent., Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1028 (2d Cir. 1989) (absence of "bad faith" not fatal). This is because, the courts say, these factors go more to the fame of the mark, which has already been decided, or to the similarity of the product or likelihood that profits will be diverted to a competitor, while dilution is expressly concerned with the impact of a mark on dissimilar and non-competing products. E.g., Federal Exp. Corp. v. Federal Espresso, Inc., 201 F.3d 168, 175 (2d Cir. 2000) (citations omitted).

Dilution by "Tarnishment"
Tarnishment comes into play when the reputation and value of the mark may be diminished because use of a similar mark may cause the public to associate the lack of quality in defendant’s good with the quality of plaintiff’s unrelated goods. In other words, a famous mark is tarnished when it is associated with an offensive or inferior good, or is portrayed in a degrading context. Playboy Enters. v. Netscape Communs. Corp., 354 F.3d 1020, 1033 (9th Cir. 2004).

A court evaluating a tarnishment claim will ask whether the defendant’s use of a similar mark created an association in the minds of consumers that is inconsistent with the pre-existing reputation of the plaintiff's mark. Starbucks Corp. v. Lundberg, 2005 U.S. Dist. LEXIS 32660 (D. OR. 2005).

So, for example, the Starbucks mark was deemed to be diluted and tarnished by another company’s use of the identifier "Sambucks." Consumer studies showed that the name "Sambucks" immediately brought "Starbucks" to mind. This association tarnished Starbucks because there was no evidence that the Sambucks store and products had developed the same premium reputation that the Starbucks brand enjoys. Starbucks, 2005 U.S. Dist. LEXIS 32660, *20; and see Playboy, 354 F.3d at 1033.
Likewise, posters that bore the phrase "Enjoy Cocaine" using a font and color scheme identical to those used by the Coca-Cola Company were found to dilute the Coca-Cola trademark, because the posters offensively associated the plaintiff's product with an illegal drug. Coca-Cola Co. v Gemini Rising, Inc., 346 F Supp. 1183 (E.D.N.Y. 1972).
Remedies for Dilution
An injunction is the standard remedy available to a plaintiff whose mark has been diluted. 15 U.S.C. § 1125(c)(1); 16 U.S.C. § 1116. And, if the defendant "willfully intended to harm the reputation of the famous mark," and if the allegedly diluting mark was first used after the FTDA was enacted, the plaintiff may also be able to obtain money damages. 15 U.S.C. §§ 1125(c), 1117(a) and 1118. The factors that weight into the availability of these remedies are discussed in [Related Article].

Federal vs. State Law
The federal dilution statutes were enacted in 1996 as part of the Lanham Act. This was the first time federal law recognized the doctrine. Until that time, protection against dilution was available only under state law. 4 McCarthy on Trademarks and Unfair Competition § 24:83 (4th ed.)

To date, 27 states have enacted anti-dilution statutes (Alabama, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Iowa, Louisiana, Maine, Massachusetts, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Washington) ("the anti-dilution states"). "Dilution of a Trademark," 38 Am. Jur. Proof of Facts 3d 1 (Supp. 2007); e.g., Cal. Bus. & Prof. Code 14330 (West); Ill. Rev. Stat. ch. 140, §22; N.Y. Gen. Bus. L. § 368-d (McKinney); Tenn.Code Ann. 47-25-513(a). Some of those that have not adopted anti-dilution statutes recognize the doctrine under their common laws. Others have explicitly rejected the doctrine of dilution altogether. "Dilution of a Trademark," 38 Am. Jur. Proof of Facts 3d 1 (Supp. 2007).

For the most part, because the law of anti-dilution seeks to protect the same interests at both the state and the federal levels, the anti-dilution states’ statutory elements for the cause of action resemble those of the Lanham Act. Compare Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 874 (9th Cir. 1999) (noting that the dilution requirements under California law are substantially similar to the federal requirements) with California Bus & Prof. Code 14330 et seq.; and compare Tenn.Code Ann. 47-25-513(a) with AutoZone, Inc. v. Tandy Corp., 373 F.3d 786, 801 (6th Cir. 2004) ("There are no Tennessee cases that analyze this statute, and in the past we have interchangeably analyzed the Tennessee and federal antidilution statutes.")

Those similarities transcend the statutory language. Anti-dilution cases in state court are subject to just as much scrutiny as in federal court. See, Gulf Coast Bank v. GCB & Trust Co., 652 So. 2d 1306, 1312 (La. Sup. Ct. 1995); Cushman v. Multon Hollow Land Dev. Inc., 782 S.W.2d 150, 162-3 (Mo. Ct. App. 1990); Skil Corp. v. Barnet, 337 Mass. 485 (1958); Little India Stores, Inc. v. Singh, 101 A.D. 2d 727 (S.Ct. NY 1984).
Toho Co., Ltd. v. Sears, Roebuck & Co., 645 F.2d 788 (9th Cir. 1981) ("Bagzilla," for garbage bags, deemed not to lessen the Godzilla mark under state law). The concern is that dilution will swallow up all competition in the name of protection against trademark infringement. Coffee Dan's, Inc. v. Coffee Don's Charcoal Broiler, 305 F. Supp. 1210, 1217 (N.D. Cal. 1969).

CONCLUSION

The dilution doctrine provides a separate and distinct cause of action for holders of well-known trademarks, and has slowly begun to expand the protection afforded to their investment from free-riders who might eat away at the goodwill they’ve developed. But it is not simply a fall-back for a mark holder unable to prove an infringement case. The requirements for establishing dilution are strict, and it is available only for those marks that are truly famous or well-known. Source : Isnare, Olivier A. Taillieu

If You Don't, Someone Else Will - Patent It !!

2010-07-29T17:16:00.000-07:00

Do you have an invention that has been burrowing away in your mind for years? Do you think it could make you real money, but you lack the financial ability to do anything about it at the moment? If you do, you might want to consider applying for a patent.

Whilst it can seem quite expensive to buy a patent for something that is currently only an idea, it can be well worth it in the long run. For every invention, from vacuum cleaners to mobile ringtones, there has always been somebody left kicking themselves because they had thought of it first – but were usurped by a company that is now making millions.

Patents are awarded by the government and give an inventor the right to stop others using, selling or manufacturing their idea without permission. This lasts for a limited amount of time, depending on how much is paid. Patents are often described as granting “intellectual property” – meaning that they can be bought, sold or rented to others.

A patent gives you the right to stop others from making your invention, but it does not give you rights above anyone else to have your invention made. Once you have one, you will need to start thinking about ways to manufacture your idea.

The two main types available in the United States are Design and Utility. Utility patents are awarded for the invention or discovery of any new, useful and developable process, article of manufacture, machine or composition of matter.

If you have a new, original and ornamental design for an article of manufacture, in the United States you may be granted a Design patent.

Additionally, Plant patents are available to anyone who discovers and can asexually reproduce a totally new variety of plant.

The rules for awarding these property rights include the fact that your invention must be “useful”. This means both that it should have a purpose, and that it should be manufactured by normal industrial processes. An invention that cannot be fesibly manufactured could be rejected.

Abstract ideas, including laws of nature and observed or created physical phenomenon, cannot be granted patents. Neither can you be granted property rights over an idea or suggestion – it is the actual invention or machine described by you that it patented, not your idea.

Sometimes you have an idea, but do not know it already exists somewhere. If other people in this country have known about or used your idea before you apply, you will not be eligable to have it patented. There are websites where you can check which ideas have already been granted a patent.

Furthermore, if your invention has appeared in a printed publication in any country in the world, for more than a year before your application, you cannot have property rights over it.

For more information, you may wish to look up the Patent and Trademark office of your government, which will highlight the full rules and procedure. Often, when people are sure they are eligable, they choose to hire a patent attorney or agent to help them with applications. Isnare, Loreno Lepe