Avoiding Litigation with Maria Speth
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Transcript of Avoiding Litigation with Maria Speth
Presented By:
Maria Crimi Speth
Jaburg & Wilk, P.C.
Avoiding Litigation: Top Tips for Identifying & Mitigating Common Legal Mistakes
#1: What Is Intellectual Property
Trademarks
Copyrights
Trade Secrets
PatentsNot sure where to start? Visit Traklight.com to ID your IP today!Stay online for limited time offer.
Trademarks
Anything that identifies the source of goods or services
Sometimes called service mark when it identifies your services
®
#2: Top Valued Brands
Coca-Cola $70,452 million IBM $64,727 million Microsoft $60,895 million Google $43,557 million GE $42,808 million McDonald’s $33,578 million Intel $32,015 million Nokia $29,495 million Disney $28,731 million HP $26,867 million
--Interbrands
#3: Branding
Who makes this soup?
#4: What Can Be a Trademark?
Names
Words (tag lines)
Pictures
Trade Dress
Colors
Sounds
Smells
#5: Trademark Symbols
Use ™ after a trademark or service mark that is not registered with the USPTO
Use SM after a service mark that is not registered with the USPTO
Use ® after a trademark or service mark that is registered with the USPTO
BONUS TIP: Use the correct one!
#6: Avoid Trademark Infringement It’s Costly!
Is the use of the trademark likely to cause a reasonable consumer to be confused about the source of the goods or services or about sponsorship of the goods or services?
BONUS TIP: Choosing a Trademark
Arbitrary/Fanciful
Suggestive
Descriptive
Generic
Protectio
n
Ad campaigns
Xerox Corp.’s “You can’t Xerox a Xerox on a Xerox. But we don’t mind at all if you copy a copy on a Xerox® copier.”
Chrysler LLC’s “They invented ‘SUV’ because they can’t call them Jeep®.
”
Kimberly-Clark Corp.’s “ ‘Kleenex’ is a brand name…and should always be followed by an ® and the word ‘Tissue.’ [Kleenex® Brand Tissue] Help us keep our identity, ours.”
#7: Why Register with the USPTO
Constructive use throughout the U.S.
Presumed Valid
Prevent Others from Registering
Other Statutory Benefits
#8: Trademark Searches
Identify your potential TMs and:– Search engine– Preliminary -- www.uspto.gov– Domain name– Professional Trademark Search
BONUS TIP: Do this BEFORE you visit an attorney- visit traklight.com to get started!
#9: Document Your First Use When You Use It!
Invoices Marketing materials Website capture Record dates & store
– Example: Traklight’s IP Vault Time-Stamped Third-Party Verification Meta Data
#10: Don’t be Pennywise & Pound Foolish
Consider using your attorney to:– Register– Proper Timing, Class
Mistakes can mean complete “do-over” costing $275-325!
#11: Copyrights
– Paintings– Sculptures– Books – Poems– Songs/Music
– Software Programs
– Web Sites
– Trade Articles
– Videos
– Your business Plan
– Your Company Logo
– Your Corporate Image
• Original expression of an idea
• Fixed in a Tangible Form
#12: Legal Rights As Copyright Owner
Exclusive right to:– copy– create derivative works– distribute– publicly display
Who owns the Copyright– The creator owns the copyright – It does not matter who paid for it
Terms– Author’s life +70 years– Work for hire lasts 95 years from publication or 120 years from creation whichever
comes first– After expiration- work is in the public domain
#13: How to Properly Mark with a Copyright
©2006, 2012 Jaburg & Wilk, P.C.
BONUS TIP: Just because it isn’t marked, doesn’t mean it’s fair game!
Exceptions
• Assignment or transfer of the copyright in writing
• Works for hire• A work prepared by an employee in the scope of
employment• A work specifically commissioned in one of nine
specific categories when there is a written agreement stating that it is a work for hire
Example: Logo design, software code
#14: Why File Copyright Registration?
Must be registered to file a lawsuit
Presumption that you are the owner
Statutory damages
Attorney fees
#15: “Fair Use” Defense to Infringement
Fair use defense is very limited– Can not in any way interfere with author’s ability to
benefit from the work– Small portions– Educational Purposes– Parody
Note: Doesn’t always work!
#16: Patent Rights
– 20 year monopoly– Public disclosure– No renewals– Does not create a right to sell
What Can Be Patented?– Processes– Machines– Chemical compounds/formulas– Software program
#17: Patent requirements
Must be new or novel– Filed within one year of public disclosure/publication– Demonstrably different from publicly available ideas,
inventions or products
Must be useful
Must be non obvious
#18: Trade Secrets
Proprietary Information Software Code Customer Lists Formulas Financial Information Business Processes Training methods
#19: How to Handle Trade Secrets
If you don’t want your competitors to see it then treat it as a trade secret
Share on a need-to-know basis Use NDAs when possible Label as a trade secret Identify Trade Secrets to your
employees/contractors
How Traklight Can Help:
ID your IP– Identify your potential intellectual
property– No prior IP knowledge required– Custom strategic report
IP Vault– Secure storage for IP – Time-stamped– Collaborative Vaults available
Questions?
10% OFFA Collaborative IP Vault Visit Traklight.comUse the coupon code WEBINAR05offer ends 5/31
Get started on IP Identification & Protection Today!
Stay informed about IP! Become a Traklight member- it’s free!
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Maria Crimi SpethJaburg & Wilk, P.C.
Avoiding Litigation: Top Tips for Identifying & Mitigating Common Legal Mistakes