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San Francisco California Intellectual Property Law Blog

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Trademark vs. copyright: What is the difference?

When it comes to protecting creative work, it's important for artists from all mediums to know what tools are at their disposal.

Many people confuse copyright and trademark, and they both have their place in creative work. It's important to know the difference and understand what each protects.

The line between parody and copyright infringement

You probably know that you're not allowed to use a copyrighted song in your Youtube video. Such an action would be a violation of intellectual property protections. But why do roasts of popular songs on SNL get away with using other people's creative works? Today we'll discuss an important concept in intellectual property law: the fair use defense.

Under the Copyright Act, there are certain "fair use" exceptions to copyright law. An individual can use an artist's work without permission if it is for the purpose of critique, news reporting or for educational purposes (research, scholarship or teaching). Parodies--which are by definition a form of criticism--fall under this approved category. The law outlines a litmus test to determine whether a particular situation constitutes fair use:

A primer on Creative Commons licenses

The concept of copyright is generally straightforward. When you create something original, the law says the control over use and distribution is exclusively in your hands. As we noted in a previous post, however, the evolution of the internet has created new opportunities for plagiarism to occur - even if it happens to be unintentional.

One of the most common forms this may take is grabbing and using an image found through an online search. Assuming a copyright exists (a safe supposition to make), the user faces potentially costly liability for infringement. On the other side of the coin is the challenge to the copyright holder to police such possible misuse. As we noted in that earlier post, one possible way to manage copyright issues is through Creative Commons licensing. But what is that?

Hey, that's my photo on your website

Hey, that's my photo on your website 

You've just written the best blog post of your life and now all you need is a photo to make it perfect. Since the post is about you taking a short break from accepting new clients, you decide the best photo is of a movie star famous for saying he'll be back. A quick Google image search and you have your photo.

Or maybe you are a photographer, and you come across one of your photos being used on a company's social media platform. You'd posted it in your website's gallery, but here it is without your permission, much less any mention of your name.

What does dilution mean and how is it stopped?

Dilution can be a good thing and a bad thing. It all depends on the situation. For example, you wouldn't want to open a packet of powdered drink and chug it down. Rather, you want to dilute it with the appropriate amount of water. For an owner of a famous trademark, dilution is always a bad thing.

Tis the season to be wary

If you're doing any holiday shopping this season, chances are at least a portion of that activity will be happening online. Google and all the other search engines out there do an amazing job of delivering opportunities for getting just the right item at the best price. Sometimes the product comes direct from a manufacturer or brick and mortar retailer. Just as often, the same images and product descriptions appear on sites like YouTube, Amazon, eBay or Craig's List from third-party sellers.

Reselling online this way seems straightforward. But it might be worthwhile to ponder the question: Is it legal as a matter of fair use, or is it a violation of copyright law to show photographs of products with copyrighted material on them? What about the marketing text that's separate from the photograph of the product? The answer depends on the specifics.

How can I best protect my brand in the Chinese market?

San Francisco creatives, whether they are artists or forward-thinking business people, know globalization is not a passing fancy. Money-making opportunities abound in markets other than the United States, but taking advantage of them requires extreme due diligence to protect your interests. Without proper care, something could get lost in translation, literally, with harsh financial consequences.

Protecting intellectual property through proper trademark registration is a crucial step that takes on a new dynamic when the objective is to expand beyond U.S. borders. China is one of the most attractive areas for realizing growth, but the communist nation suffers from a bad reputation when it comes to protecting IP rights of foreign entities.

Dollars and scents: Trademark disputes over smells

Dollars and scents: Trademark disputes over smells 

Traditionally, trademarks have consisted of logos or brand names that are uniquely associated with a particular company. However, trademarks aren't necessarily limited to logos or names. In rare cases, they can be a nonconventional part of the product -- such as its scent.

Registering a smell is much more difficult than registering a logo, but it is possible, and some companies are attempting it. This year Hasbro applied for a trademark to protect the unique odor of one of its most iconic products: Play-Doh.

Beer trademark dispute takes iconic twist

Last week, our post was about a cross-border trademark fight between a nearly monolithic beer brewer and one that has no presence beyond a small town in one U.S. state. This week, we take another plunge into the brewing world without the tongue-in-cheek tone of the last. That's because of the iconic nature of the mark in question - Route 66.

Anyone of a certain age knows special associations go with that name. Once called the country's "Mother Road," it connected California and Chicago, passing through five other states along the way. It has been the subject of song and a 1960s TV show. Now it's in the news because an international company claims it owns the trademark for Route 66 Beer and its logo-like "shield" design. The target of the claim is the Route 66 Junkyard Brewery in a small New Mexico town.

Getting serious about funny beer trademarks

There's something about craft beer that seems to encourage unusual names. Who would drink a Pabst or Budweiser when there are such products available as Buttface Amber Ale? Or "I'll have what the gentleman on the floor is having - Polygamy Porter." From Palo Alto, we have Hoppy Ending Pale Ale.

For whatever reason, the moose gets a lot of play on labels. There's Moose Drool brown ale out of Montana. And on the other side of the country in Vermont, there's Hop'N Moose Brewing Company in Rutland - though a trademark challenge could bring an end to that name. The company looking to remove it from bar walls and liquor stores is the largest Canadian-owned brewer - Moosehead Breweries.

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