Trademark Law
Kalamazoo - Trademark Law Blog

What is a Trademark?

Posted January 10, 2017

A trademark typically protects brand names and logos used on goods and services. For example, if you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself. You would apply to register a trademark to protect the brand name of the vacuum cleaner. And you might register a copyright for the TV commercial that you use to market the product.

Once you determine that the type of protection you need is, in fact, trademark protection, then selecting a mark is the very first step in the overall application/registration process. This must be done with thought and care, because not every mark is registrable with the USPTO. Nor is every mark legally protectable, that is, some marks may not be capable of serving as the basis for a legal claim by the owner seeking to stop others from using a similar mark on related goods or services. Businesses and individuals new to trademarks and the application/registration process often choose a mark for their product or service that may be difficult or even impossible to register and/or protect for various reasons. Before filing a trademark/service mark application, you should consider:

  • Whether the mark you want to register is registrable, and
  • How difficult it will be to protect your mark based on the strength of the mark selected.

Similarly, use of a business name does not necessarily qualify as trademark use, though other use of a business name as the source of goods or services might qualify it as both a business name and a trademark. Many states and local jurisdictions register business names, either as part of obtaining a certificate to do business or as an assumed name filing. For example, in a state where you will be doing business, you might file documents (typically with a state corporation or state division of corporations) to form a business entity, such as a corporation or limited liability company.

https://www.uspto.gov/trademarks-getting-started/trademark-process#step1

 

Should I Register My Trademark?

Posted December 7, 2016

While having a trademark attorney is not required, the cost of having an intellectual property attorney ensure that your trademark is truly protective is usually insignificant in comparison to the time and capital invested in developing your product or service. There are several steps that that must be accomplished in order to obtain trademark protection. Not every trademark procurement follows the exact same path. However, this will give you a good overview of the process that we will pursuing to help you obtain your trademark.

We help you determine whether you need trademark, patent, or copyright protection. If you are going to be investing a large amount of money into marketing your product or service, trademark protection provides a rock solid means of preventing others from capitalizing on your investment.

Identify your mark format. While the number and variety of trademarks issued is enormous, most fall into one of three overall categories: a standard character mark, a stylized/design mark, or a sound mark. Identify clearly the precise goods and/or services to which the mark will apply. This is essential. Without clear identification to a product or service, your trademark will be literally worthless.


Federal Court System and Pro Se Litigants:

Posted November 9, 2016

Although, in theory, they can proceed pro se, federal court litigants typically hire attorneys to help them navigate federal procedural rules as well as the substantive law that applies in their case. When parties do proceed pro se, they encounter significant challenges. A recent Federal Judicial Center report on pro se civil litigants (the “2011 FJC Report”) identified the following major issues in pro se cases: unnecessary or illegible submissions; problems with responses to motions; lack of knowledge about the law; failure to know when to object; and failure to understand the legal consequences of their actions or inactions. Similarly, a self-help center for pro se litigants established by the Northern District of California notes that pro se litigants are less likely to succeed in federal court “because they lack the [necessary] legal knowledge, training and experience.” Needless to say, such fundamental limitations can have significant consequences for the outcome of an action.

In light of these concerns, pro se litigants often receive more leeway from courts than parties represented by attorneys. For example, pro se pleadings generally are held to less stringent standards than those applied to attorney-drafted pleadings. Courts typically review pro se pleadings carefully and liberally and interpret such pleadings to raise the strongest arguments that they suggest. Some districts also have local court rules designed to help pro se parties.5 The 2011 FJC Report specifically noted that effective ways to assist pro se litigants included the provision of clear orders and instructions, standardized forms, prompt decisions on matters submitted to the court, and use of hearings and conferences to better understand the case and let litigants know the court has heard their case. Additionally, the study identified two practices that were “especially helpful” in helping pro se litigants: dedicated court staff to provide specially tailored information to pro se litigants, including forms and instructions; and pro bono programs, including mediation/settlement procedures and pro se help centers.

Pro se copyright litigants occasionally find success managing the federal court system on their own. Nevertheless, proceeding pro se in the procedurally complex federal courts can be a risky endeavor in which rights or defenses may inadvertently be waived or otherwise jeopardized due to a lack of familiarity with the court system or substantive law.

United States Copyright Office Copyright Small Claims

 

IP Claims:

Posted October 4, 2016

Copyright disputes are governed by federal law and, by statute, must be brought in federal district court. United States district courts capably serve a multitude of claimants, presiding over a wide range of disputes, including highly complex litigations with significant rights and millions of dollars at stake. In many cases, federal courts offer distinct advantages over other venues. Federal judges tend to be highly skilled and are more likely to have experience in the interpretation and application of federal law, including the Copyright Act.

In recent years, the number of copyright complaints filed in the U.S. district courts has ranged from slightly above 2,000 to something over 3,000, currently representing about one out of every 100 cases initiated in the federal system. But federal court is effectively inaccessible to copyright owners seeking redress for claims of relatively low economic value, especially individual creators who are of limited resources. It has been estimated that the median cost for a party to litigate a copyright infringement lawsuit with less than $1 million at stake through appeal is $350,000. Such costs, of course, are not only completely disproportionate to what most individuals could invest in a lawsuit, but also to what a copyright claimant could ever hope to recover in a relatively modest infringement case.

Small copyright owners, who frequently lack experience with federal courts, often find federal litigation too difficult or expensive to pursue and may be unable to navigate “the often complex procedural rules that govern federal litigation, leading to resentment and frustration.”

Stakeholders described federal court litigation as a very daunting task where it is virtually impossible to have pro se representation.  A number expressed the view that most infringements will never be prosecuted because it is economically unfeasible for the creators to commence an action in federal court.  Moreover, because the potential for recovery of damages is limited, small claimants have less ability to retain counsel, as most attorneys are unwilling to take copyright cases that are unlikely to yield a certain level of damages. Accordingly, even meritorious claims can effectively be shut out of court. For these reasons, the number of infringement actions actually filed in federal court likely significantly underrepresents the number of cases that copyright owners would choose to bring if they were able.

United States Copyright Office Copyright Small Claims

 

 

 

 

 

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