Lawrence G. Townsend Intellectual Property Lawyer
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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.

Wine label dispute highlights one benefit of federal trademark protection, P.2

In our last post, we began looking at an ongoing lawsuit between two winemakers--one located in Clarksburg, California--which highlights the issue of federal trademark protection vs. state trademark protection. At the center of the disagreement is both companies' use of the term "essential" on their wine labels.

Apparently, the Clarksburg winemaker began selling its product the same month the Colorado winemaker had its trademark registered with the USPTO, though both had been using the term previously. Some months later, the USTPO rejected the California winemaker's trademark application based on a likelihood of confusion with the competitor's brand. Subsequent discussions about an agreement between the companies fell through, and the Colorado winemaker ended up filing a lawsuit seeking a court judgment that it isn't infringing on the California winemaker's trademark rights. 

Wine label dispute highlights one benefit of federal trademark protection, P.1

In our previous post, we began looking at the topic of trademark protection. As we mentioned, the United States Patent and Trademark Office is the agency responsible for federally registering trademarks, but the USPTO does not enforce trademark protection against third parties. That is the job of companies who hold a registered trademark.

One important point to understand about trademark protection is that it is not necessary to register a trademark through the USPTO. Trademark protection can be established under state law by state registration or by simply using a mark in commerce. There are certain advantages, though, with federal trademark registration

Selecting a trademark: a brief look at some considerations

Branding is critical for the success of businesses in many industries, and trademark protection is an important area of law for businesses to understand when it comes to branding. Trademarks can be highly valuable, and can help propel a business into greater success when carefully selected and protected. But what exactly is a trademark?

A trademark is some type of indication--whether a word, phrase, symbol or design--which distinguishes goods produced by one source from those produced from another source. Service marks are the same, except that they refer to services rather than goods. The USPTO, the United States Patent and Trademark Office, registers marks but it does not protect them. Protecting trademarks is the responsibility of trademark owners. Selection of a trademark requires careful thought and planning, as there are various factors that need to be considered to ensure the trademark is valid and effective. 

Understanding your rights after your artwork is sold

When an artist spreads the last daub of oil paint on the canvas, or a photographer finally captures the perfect scene, the sense of pride and ownership is profound.

That feeling does not simply go away after the artwork changes hands. Part of the artist’s heart and mind is still invested in the art. But do artists actually retain any legal rights to their creations after the pieces are sold?

Patent protection vs. trade secrets: a brief look at some relevant considerations, P.2

Last time, we mentioned that it is not always possible or desirable to obtain patent protection for valuable business information and that trade secret protection can provide a viable and even preferable alternative to patent protection in some cases. We'd like to pick back up on that thought in this post.  

One of the advantages of trade secret protection is that it has a broader application than patent protection, since there are stricter requirements that must be met in order to obtain patent protection. The information must, for example, be useful, novel, and non-obvious, according to technical definitions. In cases where confidential business information does not meet the criteria for patent protection, trade secret protection is an important way to keep the information from competitors and to hold those who misappropriate the information liable. 

Patent protection vs. trade secrets: a brief look at some relevant considerations, P.1

In our previous post, we briefly discussed some of the differences between utility and design patents. As we noted, patent protection isn’t necessarily limited to a single type of patent; in some cases, it may be desirable to obtain both a utility and a design patent on an invention.

This is often what happens in the world of mobile device design, where patent disputes are very common. One of the companies at the center of many of these disputes is Apple. In recent years, Apple has been involved in patent disputes with a number of other manufacturers, including Nokia, Motorola, and Samsung. 

A brief look at two types of patent protection

For businesses in highly competitive industries, patent protection is an important avenue for protecting valuable intellectual property from competitors. Two of the most commonly used types of patents are utility and design patents.

According to the United States Patent and Trademark Office, the most common patent is the utility patent, which protects inventions of a new and useful process, machine, manufacture or composition of matter, or new and useful improvements of these things. The holder of a utility patent is able to prevent others from making using or selling the invention for a long as twenty years, provided maintenance fees are paid. 

Businesses: carefully consider differences between state, federal trade secret protections

In previous posts, we've looked very briefly at trade secret protections available to businesses under both state and federal law. As we've noted, there are many similarities between federal and state trade secret protection law, but there are also some differences that business should be aware of when determining the best strategy to protect their trade secrets.  

Trade secret protections available at both state, federal level, P.2

In a previous post, we took a brief look at California’s Uniform Trade Secrets Act, and some of the basic features it provides to businesses in terms of trade secret protection. As we noted last time, businesses rather recently gained the ability to enforce trade secrets under federal law, with last year’s passage of the Defend Trade Secrets Act.

The Defend Trade Secrets Act provides businesses the ability to pursue a federal claim for trade secret misappropriation. Prior to the law’s passage, trade secrets could only be enforced in federal court when certain jurisdictional requirements applied, but the law changed that by creating a federal cause of action for trade secret misappropriation.

What is the right of publicity?

Although you may never have realized it, your personal identity is protected by law. This means that companies are not allowed to use your name, your photo, your voice, your signature or other personal aspects in their advertising without your permission. Your identifying features belong to you alone.

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