Copyright Law Blog

What New Artists and Musicians Can Do to Keep From Being Taken Advantage of – See a California Music & Entertainment Lawyer

August 4th, 2009 at 06:40am Under copyright infringement

There is probably no other profession than the music business where so many people will try to take advantage of you when you are starting out as an artist or musician if you don’t have a lawyer. Whether you or your band hails from Carlsbad, Encinitas, Del Mar, Solana Beach in San Diego, Anaheim or Santa Ana in Orange County, or Palm Springs, whether you developed your talent in La Jolla, or at Huntington Beach, Laguna Beach or Santa Barbara, and whether you live, studied or performed in Hollywood, Westwood, Santa Monica, Venice, Malibu, Palm Desert or La Quinta, when you are just starting out, the entertainment industry sees you as someone whom they can take advantage of.

Music contracts are notoriously long, complicated and almost undecipherable to all but a music lawyer. Thirty page contracts are nothing unusual in this business. And there are so many contracts you will be faced with as a musician. Sign the wrong contract and you can be married to a bad agent, promoter, manager, distribution deal, publishing deal or record company and have your career over before it ever began.

Besides the issues you will face with copyrighting your music and trademarking your band name and logo, if you have one, there are management contracts, recording contracts, publishing contracts, agent contracts, distribution deals, licensing contracts, promotion deals, festival and concert contracts, producer agreements and that doesn’t even get into the complex issues contained in many of these agreements.

A music lawyer must have knowledge of synchronization rights, digital rights, peer to peer file swapping, sampling, mechanical licenses, copyright infringement, publishing, advertising law, immigration, employment law, negotiation, ring tones, and have a good understanding of how music is made from mixing to mastering, from the roles of the producer to the needs of the musicians.

And yet, for the music lawyer, there is little that is as rewarding as being part of the recording process or helping a band make it to the big time.

My advice to musicians just starting out and being presented with any type of contract is that having their contract reviewed by a music lawyer is essential. You are likely being presented with the most one-sided type of contract in any business or profession. They are written by the attorneys for the company or manager who is handing it to you with absolutely no attempt to be even handed.

Worst of all, at this stage in your career, you have little leverage. No matter how good you think your music is, the music world is littered with great musicians who signed horrible contracts that stifled if not ended their careers. If you have to do an extra gig and save the money to have a contract reviewed, that’s what you need to do. Get yourselves a good music lawyer. Not a divorce lawyer. Not a trial lawyer. An entertainment lawyer who knows the music business and one, preferably, who is interested in music and who is willing to listen to your music.  

If you have an entertainment law, copyright or trademark issue in San Diego, Newport Beach, Irvine, Orange County, La Jolla, in the Inland Empire, Los Angeles, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your Huntington Beach Entertainment Lawyer and your Anaheim Entertainment Attorney. Be sure to hire a California law firm with entertainment law experience who can serve areas such as Los Angeles, Palm Springs, Palm Desert, Anaheim, Irvine, Beverly Hills, Malibu, Newport Beach, Carlsbad, Corona del Mar, Laguna Beach, Huntington Beach, Santa Ana, Rancho Cucamonga, Ontario, Fullerton, Del Mar, San Diego, Orange County, San Luis Obispo, Buena Park, La Jolla, Oxnard, Ventura, La Quinta, and Santa Barbara so you are properly represented and get the compensation you deserve.

If you have an entertainment law, or copyright dispute of any kind, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.sebastiangibsonlaw.com  and learn how we can assist you.

The Marketing of Candidates Using Trademarks and Campaign Slogans in California and the U.s

July 29th, 2009 at 12:42am Under trademark law

No matter where you live in America, whether it is in Orange County, California, Los Angeles, CA, San Diego, La Jolla, Del Mar, Encinitas, Newport Coast, Carlsbad, Oceanside, San Marcos, Vista and Escondido or the cities of Huntington Beach, Westminster, Buena Park, Anaheim, Santa Ana, Costa Mesa, Irvine, Newport Beach, Corona del Mar, Laguna Beach, and Laguna Hills, Santa Barbara, Ventura, Oxnard, Buena Park, Temecula, Indian Wells, La Quinta, Palm Springs, or the rest of the U.S., unless you never turn on the television or read a newspaper, you have been bombarded by campaign slogans in the 2008 Presidential election.

Marketing experts know that the best way for a product or a candidate to be remembered is with a slogan or platform that is succinct and easy to remember. Marketing experts know that the best way for a product or a candidate to be remembered is with a slogan or platform that is succinct and easy to remember. 

In addition, a great slogan can be trademarked for use on products such as clothing, mugs, etc. Many people do not recall this, but when Barry Goldwater ran for President, they actually gave out or sold cans of “Goldwater” a soft drink at his rallies and other events.

As a marketing and advertising lawyer in California, one has to wonder if future candidates who create original slogans for his or her election in the future, won’t try to trademark their  slogans for use on products and try to copyright their advertising materials using the slogans to prevent the relentless variations made of a good slogan by other candidates.

So far in this Presidential campaign, the slogans have been less than rememberable. In fact with each candidate stealing or using variations of the same slogans each other has used or slogans that were used against them in the primary, none of the candidates marketing experts have done them a real service.

First, look at the ever changing slogans of Hillary Clinton which may have contributed to her downfall. First she had “Renewing the Promise of America” followed by “In to Win,” “Working for Change, Working for You,” “The Strength and Experience to Make Change Happen,” and “The Change We Need.” Somewhere along the way, there was also “Ready for Change, Ready to Lead.”The changes in campaign slogans by Hillary Clinton were so many and so often, that columnists were commenting if it was a new week, it was time for a new slogan.

Obama’s slogans have been fewer in number but faced with the many “Change” slogans used in the primaries by Hillary Clinton, his slogans of “Yes We Can” “Change We Can Believe In” and “Change We Need” have all failed to be memorable. His success as a candidate is acknowledged to be due to his own charisma, rather than that of his slogans.

McCain has had fewer slogans, and has primarily used “Country First” and “Change is Coming.” The “First” slogan was better for not using the word “Change” in it. It sounds patriotic and fit the candidate. But somewhere along the way, for better or more likely for the worse, some marketing expert convinced the campaign they needed to confuse the public’s perception of who would bring change and separate themselves from George Bush and so they added the slogan, “Change is Coming” which could be the worst of all the “Change” slogans because, duh, with either candidate, George Bush will be out and one of the two guys running will be in.

If these slogans are the best that almost unlimited campaign money can buy, one has to wonder if the campaigns shouldn’t have gone to additional marketing agencies, or attorneys to come up with their slogans. Even Barry Goldwater in 1964 had “In Your Heart, You Know He’s Right” which quickly became parodied with “In Your Guts, You Know He’s Nuts,” either one of which would have been better than “Change blah blah blah blah blah.”

If this year is all about the economy, where are slogans today like “It’s The Economy, Stupid” and “Are You Better Off Than You Were Four Years Ago?” We all know change is coming. The economy is in the tank. Use a slogan that promises a better life, or if you have to be negative, at least blame the economic conditions on the other party’s candidate and use something we can all remember, like “This Is All His Fault” or let us know how the candidate really feels about the other’s leadership skills and use, “He Can’t Lead Us Out Of A Wet Paper Bag.”

San Diego California Sports & Business Law Attorney Sebastian Gibson – the Business of Sports

July 22nd, 2009 at 06:42am Under trademark law

Even if you don’t live in a town with a professional sports team like San Diego, California or Los Angeles, CA, it is likely you still have at least amateur sports teams in almost every city of Orange County, and even if your city just has high school teams in La Jolla, Del Mar, Encinitas, Carlsbad, Oceanside, San Marcos, Vista and Escondido or the cities of Huntington Beach, Westminster, Buena Park, Anaheim, Santa Ana, Costa Mesa, Irvine, Newport Beach, Corona del Mar, Laguna Beach, and Laguna Hills, Santa Barbara, Buena Park, Temecula, Indian Wells, La Quinta, or Palm Springs, you and the players on those teams are probably sports fanatics as we are, and may also have a legal issue in many of the sub-areas of sports law without even knowing it. 

Few firms in the U.S. today practice in the field of Sports Business Law. It requires a knowledge of entertainment law, intellectual property, sports brand development, professional regulations, broadcast and media law, sports sponsorship, corporate finance, labor law contract law, merchandising, anti-trust law and litigation.In addition to having knowledge in those fields, it helps to have a strong background in international law, if not English law as well.

Clients at a sports law, law firm are sports team owners, cities, athletes, stadium management companies, and sponsors. You will be dealing with product manufacturers, the media, banks, the USPTO, sports organizations, arbitrators and the courts.

If you are a true sports aficionado, you will wish the business of sport had less to do with the law, but with each passing year it seems to have more rather than less.The rules referees must now live by often makes it useful if they are lawyers in their spare time.

As society becomes more and more concerned with fairness, we see greater use of replays, and less discretion given to the officials to call the game or to correct a mistaken call on their own.Sports teams and their lawyers must constantly be vigilant to protect their trademarks and branding and spend as much time promoting their team and their sport as running the day to day operation.Fortunately, in the end, the time and cost of sports business law attorneys are worth it, with the value of most sport teams rising year after year.

The opportunities to get into sports business law are limited. Many more law students take courses in sports law than will ever have the chance to practice the little they learn in law school.

If you are an athlete, or a business in the sports world and need the assistance of a sports lawyer, call us or visit our website at http://www.californiaattorneyslawyers.com to learn more about how we can assist you. Or call us to speak directly to Sebastian Gibson about your sports law, entertainment law, intellectual property, trademarks, sports brand development, professional regulations, broadcast and media law, sports sponsorships, corporate finance, labor law contract law, merchandising, anti-trust law and litigation.

An Orange County, Fullerton and Riverside California Trademark Lawyer’s Humorous Take on Trademark Infringement

July 18th, 2009 at 06:42pm Under trademark law

To a great many people in Southern California, the law regarding infringement of trademarks, copyrights or intellectual property in general is so confusing, it is humourous. Whether you live in Indio, Riverside, Costa Mesa, Santa Ana, CA, San Diego, Huntington Beach, Orange County, Palm Springs, Palm Desert, or Newport Beach, you are as likely to be confused by the law of infringement as someone who lives in La Jolla, Anaheim, Irvine, Westwood, Santa Monica, Westminster, Mission Viejo, Newport Beach, Buena Park, Ontario, Rancho Cucamonga or Yorba Linda.

 

The standard for whether there has been an infringement by one person of another’s intellectual property, namely their patent, trademark or copyrighted work, often comes down to whether there is the “likelihood of confusion” in the public.

 

To test this test set forth by the courts and by statutes, I went out into the public to see how readily the public was confused.

 

I didn’t have to go far to find confusion.I found a dog walker trying to find an address.

 

“Can I help you find something?” I asked her.”I’m confused,” the dog walker said.

 

“I thought 64th street would be right after 63rd street.”

 

“They put another street between the two,” I said, “just to confuse people like you.”

 

“Figures,” the dog walker said.

 

Clearly, the city was guilty of infringement on a person’s senses and well being.

 

I next went into a coffee shop that wasn’t one that I normally went into. But instead of having the normal choices of tall, grand and venti, this shop had single, double and triple.I could see that I wasn’t the only one confused.

 

I asked the person standing in line ahead of me, “Is a triple three times the size of a single, or is it the same size but with three shots of espresso in it?”

 

“Beats me,” the person said. “What I want to know is what these low-fat sticky buns have that could possibly make them low-fat.”

 

I wondered, with such confusion among members of the public, was this coffee shop infringing on either the other coffee shop’s terminology or were we, the public, just naturally confused about things.

 

I decided I needed to see someone really smart, so I went to see a professor who was in part responsible for the new atom smasher and the super collider to see if he was faring any better than the rest of us.

 

“Professor, can you clear up some confusion the public is having?” I asked.

 

“I’ll certainly try, but first I’m having difficulty understanding how some news channels can ignore facts when they report the news.”

 

“We all wonder that,” I told the Professor.

 

“But they simply report dogma, assume that their opinions are correct and arbitrarily reject anything to the contrary. Or worse, they simply state what they want to believe and sprinkle it with a few facts.”

 

The Professor was clearly confused. “Is that how we scientists should be doing our work? Reject any type of testing or experimentation or observation to develop our theories?”

 

I left the Professor in a highly agitated state of confusion. Clearly the news anchors were adding to the public’s confusion.

 

I found myself wandering inside the mental ward of the local hospital for some clarity.

 

“Are you confused?” I asked one of the patients.

 

“Not at all,” he replied. “I know who I am today and even if I think I’m someone else tomorrow, I still won’t have any doubt about it.”

 

“What if you think you’re me tomorrow?” I asked.

 

“I still won’t be confused,” the patient said. “What you feel is up to you. Like they say, I’m okay, You’re okay. Who cares if anyone moved the cheese.”

 

I left the mental ward feeling much better about things. Confusion is in the eye of the beholder. The infringer isn’t the one confused. He may cause confusion in others, but the infringer is actually quite happy with him or herself.

 

At least some of the public appeared not to be confused, even if they might only be the ones believing they are someone else.

 

If you have an intellectual property matter in Orange County, San Diego, in Riverside, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your Riverside Trademark Lawyers, and Orange County and San Diego Trademark Attorneys. For this reason, be sure to hire a California law firm with trademark lawyers who are ready to serve you in many areas such as Chino Hills, Mission Viejo, Newport Beach and Palm Desert so you are properly represented when you need to be.

 

If you have an intellectual property matter and need to know your rights, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.sebastiangibsonlaw.com  and learn about your rights and options. You can also call us to speak directly to Sebastian Gibson on the phone about your legal matter.

Understanding Patent Infringement and Intellectual Property

July 16th, 2009 at 06:42pm Under intellectual property

Understanding patent infringement also means understanding intellectual property. Obviously, the material inside my head, my thoughts, my feelings, and the brain activity that makes me who I am is mine.
However that is not all considered intellectual property.
Attorneys are constantly setting new precedent when it comes to patent infringement law dealing with intellectual property, as intellectual property is the material which comes from the stuff inside my head. Intellectual property covers everything from the creation of written material to software to recorded media. Lawyers from around the world have yet to come up with exactly what encompasses intellectual property and what doesn’t. No national or international agreement exists as of yet.
Attorneys have been able to agree on a case by case basis when patent infringement of intellectual property has occurred. It is basically the theft or copying of another’s idea, material, compound, or product and claiming it as your own. Marketing of material that is the product of patent infringement is very illegal, and is prosecutable, typically leading to high end awards for claimants. It may very well be a complicated sector of law, but patent infringement attorneys certainly know it when they see it.
There is a difference between copyrighted material and intellectual material, and these law does not necessarily apply the same way as copyrighted law, however they are also very similar. As an attorney explains, copyrighted material can be copyrighted by the author or producer in any stage at any time simply by placing the copyrighted symbol on the page along with the necessary information. It may be cataloged with the copyright office, but it is not required to be.
On the other hand, nobody can be guilty of patent infringement if there is no registered patent. A registered patent is necessary for it to occur. Patent infringement is determined by numerous other factors as well, not solely on whether or not there was a patent.
In the quest for a patent, a company or individual typically retains an attorney to validate that there is not already in existence a pending patent of the same caliber. This is referred to as a clearance search. After the clearance search is complete, the patent infringement lawyer then offers his legal opinion to the status of the invention and then to the likelihood of the product being a threat of patent infringement. After these steps are completed, the inventor then files a patent application. Only after the patent application has been published can there be any threat of it.
Unintentional patent infringement is still prosecutable. However, only if willful patent infringement is determined can the jury then award the claimant up to three times the actual damages plus legal fees. Involuntary patent infringement does not allow for such high damages, however, damages for losses, estimated losses, or potential losses are a possibility along with the right to demand removal of the product from commercial venues.
Because it comes with such heavy consequences, it is typically agreed upon that attorneys are hired by the company at the onset of any new project. Attorneys are able to provide the valuable insight into latent law that can help a company determine whether or not to proceed with a particular project.
It is possible to purchase insurance, which protects the inventor in the event that they accidentally overstep laws. However, patent infringement insurance policies generally demand that the inventor or the inventor’s company confer with a patent infringement attorney prior to purchase of the policy.
In the event that the attorney ill advised the inventor, the insurance then protects the inventor and his company from financial devastation. Although patent infringement attorneys are well versed in law and the practices of avoiding a patent infringement lawsuit, they are still human beings and it is possible for an attorney to make an error.
Being able to invent something new and to improve the world in one form or another is really an amazing gift. Of course, everyone wants their just desserts when they produce something that no one else has thought of. Laws are there to help protect free enterprise and to encourage the continuation of developments and inventions. Intellectual property is one of the highest assets we as human being are blessed with, and it is always positive when it is applied in good turn.

A San Diego and Palm Springs California Literary and Publishing Attorney Looks at the Harry Potter Case Ruling and Copyright Infringement Law

July 10th, 2009 at 06:39pm Under copyright infringement

If you are a writer, a publisher, a California copyright attorney, a literary agent or lawyer anywhere from Corona del Mar, Rancho Mirage, San Diego, California Orange County, CA, Los Angeles, Malibu, La Jolla, Del Mar, Encinitas, Carlsbad, Oceanside, San Marcos, Vista and Escondido or the cities of Huntington Beach, Yorba Linda, San Clemente, Buena Park, Anaheim, Santa Ana, Costa Mesa, Irvine, Newport Beach, Laguna Beach, and Laguna Hills, Santa Barbara, San Luis Obispo, Buena Park, Temecula, Indian Wells, La Quinta, Palm Springs, or Palm Desert, you will be interested in a recent case involving the Harry Potter author, J.K. Rowling. This is an important decision for writers, copyright attorneys, and literary lawyers everywhere. 

In September 2008, a New York judge handed down a decision in favor of author J. K. Rowling and Warner Bros. who own the film rights in the Harry Potter books, in a literary and copyright law case involving a fan website that was planning on publishing a reference book on the Harry Potter saga.

What the ruling determined was that the reference book simply copied too much of the Rowling books to be considered fair use. The fact that what was copied was creative material as opposed to factual material, also hurt the website’s case as creative material enjoys a higher level of protection.

What the ruling does is to reiterate the rule that for a derivative book to enjoy the fair use protection under the law, it must be very transformative. It must create something else. Instead, the judge found that the reference book copied Rowling’s distinctive style and words in excess of what would otherwise be legitimate to create a reference guide.

The ruling does nothing to dilute the right of parody or literary criticism to be protected by the fair use doctrine. Rather, the ruling may elevate the importance of the “market impact” factor in the four part standard used by judges in evaluating fair use.

Those four factors are first, the purpose and character of the use (is the new work transformative into something different – in this case use of material from two companion reference books of Rowling made the website reference book less transformative). While another part of this factor is whether the use is commercial or noncommercial, most uses are for profit. Another part of this factor is whether the infringer acted in good faith or not.

The second factor is the amount and substantiality of the use, i.e. whether the amount of the use by the infringer is reasonable for the transformative purpose. Here, apparently, it was not.

The third factor is the nature of the copyrighted work, creative works being given much greater protection than factual works.

The fourth factor is the harm to the market of the original work by the infringing work. Here the court found that while the website reference book might not harm the market of the Harry Potter novels, it might very well harm the market of Rowling’s companion books.

Consequently, the New York judge issued a permanent injunction against publication of the website reference guide. The decision may be appealed and it is possible if the website reference book were edited, it might pass muster. But in this copyright lawyer’s opinion, the success of an appeal or an edited book to pass muster as being fair use is unlikely under these circumstances and as a result of this ruling infringers in California and the U.S. will now have an even harder time trying to make a profit off of another writer’s work.

If you have a publishing, literary, or copyright infringement law issue in San Diego, Newport Beach, Irvine, Orange County, La Jolla, in the Inland Empire, Los Angeles, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your Malibu Copyright Lawyer and your Palm Springs and San Diego Publishing Attorney. Be sure to hire a California law firm with literary and copyright infringement law experience who can serve areas such as Los Angeles, Palm Springs, Palm Desert, Anaheim, Irvine, Beverly Hills, Malibu, Newport Beach, Carlsbad, Corona del Mar, Laguna Beach, Huntington Beach, Santa Ana, Rancho Cucamonga, Ontario, Fullerton, Del Mar, San Diego, Orange County, San Luis Obispo, Buena Park, La Jolla, Oxnard, Ventura, La Quinta, and Santa Barbara so you are properly represented and get the compensation you deserve.

If you have a publishing or copyright law issue of any kind, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.sebastiangibsonlaw.com  and learn how we can assist you.

La Quinta, Garden Grove and Corona Del Mar California Copyright Lawyer Looks at Copyright Infringements in Conversations

July 10th, 2009 at 12:40pm Under copyright infringement

No matter where you live or try to make a living in Southern California, from Westminster and Mission Viejo to Murrieta and Temecula, from San Diego to Orange County, from Fullerton to Fontana, from Irvine to Anaheim and Rancho Cucamonga to Ontario, from Palm Springs to Indio, to La Quinta, Garden Grove and Corona del Mar, the law is the same for everyone because copyright law in the U.S. is governed by international treaties and administered by the Library of Congress.

While everything you write down is automatically protected by copyright treaties that countries like the U.S. have signed, there’s a reason why the same does not apply to words you speak. Otherwise, this would be the result in cities such as San Bernardino, Chula Vista,  El Cajon, Fontana, Moreno Valley, Garden Grove, Palmdale, Victorville and even Santa Monica.

Children at school would face this dilemma:

“You hit me harder than I hit you,” one child would say.

“No, you hit me harder than I hit you,” the other would reply.

“You can’t say that,” the first child would say.

 ”I already have that phrase copyrighted. You just infringed my copyright. You owe me big time.”

“You just infringed my copyright on ‘You owe me big time,’ the second child might respond. “Now you’re in big trouble.”

“But you just infringed my copyrighted phrase, “Now you’re in big trouble,” the first child might respond. I said that in second grade.

“Just how many times have you said my phrase?”

At this point, the second child would be wise not to say anything further before talking to an attorney.

A whole law firm of lawyers would probably have to be called in, the school might be named as a defendant for not warning the school children not to infringe other children’s copyrighted phrases, and its very possible that parent’s fortunes could be at risk if their children were not insured against copyright infringements.

In bars and nightclubs the results could be even more disastrous.

“What’s a nice girl like you doing in a place like this?” a man might ask a woman.

At which point the woman would probably start calling an attorney on her cell phone who would notify the man of how much he would need to pay for using that line.

If the man followed up his initial approach with, “You look familiar. Haven’t I seen you before?” the damages he would have to pay to settle the copyright infringement case would be double.

Even lawyers would not be immune to such results.

Every time a lawyer stood up in court and uttered the usual “Objection,” damages would have to be paid to someone.

The jury member who announced to the court at the conclusion of a case, “Not guilty, your honor,” would also have to fork out some money.

While the words you write down may be copyrighted, individual words and common phrases are not owned to the exclusion of everyone else.

What is protected by copyright are literary works, i.e. books, music, plays, even advertising. While it is true that a slogan that can be used in advertising and those advertising materials can be copyrighted, the slogan may also be trademarked for use on products. However, the owner of a trademark may not sue others for using that trademarked phrase in daily conversation.

If you have a copyright or intellectual property matter in Orange County, San Diego, in the Inland Empire, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your La Quinta Copyright Lawyers, and Corona del Mar and Newport Beach Intellectual Property Attorneys. For this reason, be sure to hire a California law firm with copyright lawyers who are ready to serve you in areas such as Garden Grove, Corona and Santa Monica so you are properly represented when you need to be.

If you have an intellectual property matter and need to know your rights, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.sebastiangibsonlaw.com  and learn about your rights and options. You can also call us to speak directly to Sebastian Gibson on the phone about your legal matter.

A Discussion of Patent Infringement and Trademark Law

July 9th, 2009 at 06:42am Under trademark law

Patent infringement and trademark violations are two different arenas. It involves the use, marketing, sale, or profit from and invention that is patented under someone else’s name or company. A trademark violator is someone who has attempted to use a company’s or individual’s trademark for personal or financial gain. A trademark is the company’s or individual’s “calling card”, the logo or point of reference used by that company to create associations.
Coca-Cola is a registered trademark, and thus anyone marketing under the name Coca-Cola would then be a trademark violator. Anyone who rebottled Coca-Cola in a different packaging and sold it as a Coke product is then looking at patent infringement. It occurs when you steal someone else’s invention (or create it on your own) and then market it as your own product.
A trademark violator may very well commit the act accidentally, just as easily as it can happen accidentally. With the vast number of trademarks and new inventions it is possible for someone to accidentally become a trademark violator or to accidentally commit patent infringement. In the eyes of the law, however, there is little difference between committing these acts accidentally or intentionally.
If a trademark violator initiates a violation of trademark laws, which can be anything from attempting to register the same trademark picture as another company or using another company’s logo as their own, they are subject to significant fines and damage awards to the company they offended.
The standards are held so high against trademark violators as a reflection of the importance of fair free enterprise. There is a great amount of effort that companies and individuals put into producing original concepts and creations and should be financially rewarded for their hard work and their ability to make daily life either better, easier, or more rewarding. On the basis of free enterprise and fairness in the free market, trademark violators are risking the financial health of those who truly deserve it. A trademark violator is equivalent to an intellectual material thief.
It is equally as harmful to companies large and small. Patent infringement robs companies of their right to market their own creative products exclusively and to profit from their ability to be the first to create said product. The law protects the rights of a company or individual to market their invention exclusively if they take the time to go through the process of obtaining a patent. Thus, it is taken rather seriously in the United States.
Whether you are a trademark violator or have committed an act of patent infringement, you can certainly expect to be taken as far as the length of the law will extend. With the power of today’s research capabilities, there really is no reasonable excuse for becoming a trademark violator or committing an act of patent infringement. The power of these same research tools makes it easier for companies and individuals to locate trademark violators and acts of patent infringement.
When a company discovers a trademark violator or someone who has committed an act of patent infringement, the first step is to send a cease a desist letter, explaining the violation and how the offended company plans to proceed if the trademark violator or the patent infringement does not immediately stop. Often a copy of the original patent or trademark registration will accompany the letter.
The trademark violator or the perpetrator of it must decide if the evidence before them is enough to consider themselves trademark violators or guilty of patent infringement. Then naturally, they either immediately cease or they choose to fight their battle in court.
Taking a trademark violator or the perpetrator of a patent infringement to court requires some evidence that there was either prior knowledge, or that you presented them with knowledge of it or the trademark violation. The burden of evidence is relatively low, and often the original cease and desist letter and copies of the patent or trademark registration will suffice.
Once the trademark violator or perpetrator of the patent infringement has been served, the burden is mostly on their shoulders to prove that they did not have prior knowledge of either the trademark or the patent which they infringed upon.
Even in accidental cases, the trademark violator or the perpetrator of the patent infringement may very well find themselves with an ample judgment against them. The damage that can be done by a trademark violator or through patent infringement does not have much to do with intent or prior knowledge. Once the damage has been done, it can not be undone.