“This particular case is a prime example of one company trying to ride on the coattails of another,” said David Alden Erikson, a Los Angeles business litigation attorney. Mr. Erikson specializes in Los Angeles fashion law, Internet law, business litigation, trademark and copyright law.

This lawsuit involves a language translation company wanting to protect their trademark against another upstart company that has chosen to use their company name with a slight twist. “The original company name is The LanguageWorks, Inc., which is a foreign translation services company. In Michigan, another company, in the same line of work, has chosen to name their venture LanguageWerks LLC,” Erikson said.

LanguageWorks is asking for an injunction against the “other” company for using a similar and confusing name, as well as statutory damages. The LanguageWorks Inc., has been in business since 1995 and have their trademark federally registered and insist that LanguageWerks is using the confusingly similar name to steal their business; a form of unfair competition, among other things.

“LanguageWorks bases their case on the fact that they have spent years building up their business by offering a quality translation services that are globally recognized. Then, along comes an upstart company in Michigan with a similar name, providing a similar service and confusing people who need translation services. LanguageWorks fully intends to protect their trademark from unauthorized use and wants LanguageWerks to stop selling services that infringe on theirs, recall all of the advertising, pay damages and take down their website,” Erikson said.

Do they have a case? “Yes, the new company is infringing on the LanguageWorks trademark. It doesn’t get any clearer than that. This will be a good case to watch to see what the courts award LanguageWorks over and above their initial requests that the renegade company cease and desist their blatant use of the slightly changed business name,” Erikson said.

Companies that find themselves in a similar situation are best advised to contact a skilled Los Angeles business litigation lawyer and put a stop to any trademark infringement. These types of cases are typically fairly complex, but with the right lawyer, a trademark will be rightfully protected.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

“It’s rather amusing in a way to watch the squabbling going on over various trademarks and who has the right to use them. Not that there isn’t some validity in the whole process, but it seems it has been diluted by the petty infighting one sees today,” said David Alden Erikson, a Los Angeles business litigation attorney. Mr. Erikson specializes in Los Angeles fashion law, Internet law, business litigation, trademark and copyright law.

One first class example of a trademark spat involves the Facebook game company, Zynga. They have made it their mission to get a cease and desist order issued against game creators, Blingville, LLC. The Blingville game is in beta stage development at the moment. And the cease and desist order? Well, this may seem a bit ridiculous, but the order claims that the use of the word “ville” is a violation of Zynga’s trademarks.

“If you’re not too familiar with Zynga and their history, this might make more sense when you find out that they are well known to have copied their competitor’s games, such as Farmville.  FarmVille was a close copy of Farm Town, which came first. Zynga has also been sued over another game called Mafia Wars. The game was originally created by the makers of Mob Wars, and the case just keeps on getting even more interesting,” Erikson said.

In the final analysis, Blingville LLC is not going to take this latest legal insult sitting down. They have chosen to ask for a declaration from the courts that Blingville does not infringe on any trademark. As an added measure, they want legal fees and court costs.

“It’s a case well worth watching, because it highlights how ridiculous trademark infighting has become over the years. You might not recall this, but within the last couple of years, Facebook was going to see about trademarking the term ‘face.’ An endeavor that may well be doomed to failure,” Erikson said.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

If you have spent any time trademark watching, you would find out fairly quickly that if you watch the latest applications for trademarks, you can figure out who is about to introduce what to the marketplace. Likely this is only for serious geeks, but it does have an element of a treasure hunt about it.

For example, in 2010 Hewlett Packard sent in an application to trademark the term “PalmPad.” Not many were too excited about the name that they thought would be given to their webOS tablet. It is hardly catchy and does not really have commercial appeal. Then, along came another trademark application for the HP TouchPad – still not that classy a name, but perhaps a tad better than PalmPad, although that may be arguable in certain circles.

Never fear, it seems there are several more options that have also been sent in for trademarking, including HP Touchcanvas, HP Duopad and HP Touchslate. These are hardly barnburners, but were evidently prompted by the U.S. Patent Office turning down the PalmPad application. Why did the patent office turn down the application to trademark the name PalmPad?

If you have a good sense of humor or slightly skeptical nature, you will be interested to know that it was turned down because PalmPad was too close to an existing trademark, and that trademark would be Palm. Yes, the very same company that Hewlett Packard bought so it had access to the webOS software so it could ship it off to the market under the Hewlett Packard (or Palm) name. Looks like that went over like a lead balloon with the patent office.

This makes for an interesting conversation when it comes to trademark infringement and why it pays to have potential marks registered. In today’s fast paced marketplace, it is not hard to imagine one company either stepping on another’s toes or inadvertently using something that had no right to use.

International business is complex. IP and trademark infringement is even more complex and expensive. It pays to have a skilled Los Angeles business litigation lawyer with this type of knowledge on hand to answer your questions and keep track of who has what or who shouldn’t have what. It is called protecting your company.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Intellectual property, or IP for short, is a rather interesting area of the law, often fraught with strange happenings when someone tries to steal someone other company’s IP and claim it for their own. This is not just a local problem, as in solely based in the United States. You will find IP disputes on a global scale and quite commonly in China.

The latest hot news from China regarding IP infringement involves Huawei, a Chinese equipment manufacturer, which has pointed an irate finger at Motorola for transferring parts of their IP to equipment maker Nokia Siemens Networks in the midst of the sale of their telecom equipment manufacturing division. While this might sound pretty straightforward, it is not.

The whole story is rather confusing, but basically it boils down to when Huawei was trying to negotiate a supply agreement with Sprint, someone ostensibly tried to illegally transfer part of Huawei’s IP. No one is particularly thrilled with any of the legal machinations, but somewhere, buried in the accusations and counter accusations, lies a nugget of truth.

The story goes that the European company bought Motorola’s telecom division within the last year for $1.2 billion. Huawei just about snagged it, but was not able to get a U.S. regulatory approval, even though they had a better offer.

It appears that Huawei had been working together with Motorola since 2000 on a variety of projects that included network cores and radio waves. The American company sold Huawei-made hardware under the umbrella of their own name.

While all that was taking place, Motorola and Huawei inked an agreement to keep Huawei’s IP and their technologies a secret, which only makes sense if you want to stay in business and be competitive. The idea behind the agreement was that Motorola was only going to be involved as reseller. What has happened is that part of that IP was woven into the Nokia Siemens Networks buyout without the permission of Huawei.

You are pretty much going to need a pen and paper to figure out who is related and not related to whom if you want to figure this mess out, but suffice it to say that it appears that Motorola may have stepped in it, so to speak. Here is the sticking point though – Motorola did not offer the Chinese company any guarantees that their IP would be guarded and that nothing would be passed to third parties.

On the other side of the fence, Huawei feels they have sustained commercial damage and launched this recent suit to protect their technologies. It is no wonder they did file an IP infringement lawsuit, as they want to protect their research and development. Any company with over 100,000 workers and over 50,000 patents likely has a right to get touchy about someone stepping on their toes.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Without getting too confusing and technical, there are several searches that may be made to check for copyright infringement of a work or picture. You can do your own searches or have a Los Angeles copyright and trademark lawyer do them. There are trademark searches to find out if a potential new mark is already registered and patent searches to see if an invention is really new and capable of being patented.

Back to the copyright searches. Copyright protection is Johnny-on-the-spot when it is first created. In fact, just about anything with some component of creativity gets copyright protection – restaurant menu designs, website designs, etc. However, federal registration for copyright is another can of worms entirely. They are easily searched because the government has a complete list.

But it is virtually impossible to discover all non-registered and copyrighted images. In other words, if someone does not register his or her copyrighted material, it will not be found on a search. You can imagine the potential for infringement. If you have written or created a brochure, file it and forget about it, no one will ever know you did it, even though you had copyright protection from the minute it was created.

While this may seem like a huge legal problem, you should know that copyright infringement typically needs proof of access to the original work and evidence of copying. No access, no copying, no infringement. It is like you playing around with a design for a work shed for your yard. That design may look just like one another guy in another town is trying to draw. That does not mean you copied it, because you did not have access to it.

This is why copyright searches are viewed as being dangerous, because to search is to access information. What if you did perform a search for non-registered copyright images and registered copyrighted images and happened to find something very similar to your shed design? You have now accessed a similar work. If you build your shed and use ideas from the work you found, you may well be infringing on another’s copyright. Put another way, even if you do a search, it does not avoid the infringement issue.

Thus, if you did copy your work shed design from a work, it follows you would know about that other work and you would not need to do a search. If you did not copy your design from something else, you will risk becoming informed of something similar by doing a search. Once you have done that, you are at risk to be sued for copyright infringement.

Confused? Join the crowd. Copyright law is convoluted and does not get much easier. Really, to get a good grasp on what you need to know, talk to a Los Angeles copyright and trademark lawyer. It is time well spent and may save you a lawsuit.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

It goes without saying that large companies these days have an enormous amount of intellectual property behind them. It is what made them the success there are today. The most valuable thing for any company, but the larger ones in particular, is their brand and IP value. This leads to an interesting question. How much more do you think a company would be valued at if they actually invested more in IP registration and identification? It is food for thought.

For those major players on the block in the corporate world, such as BMW or Coke, they have gone to the trouble to clearly identify, maintain and keep their IP rights secure. It is obvious these efforts have played a big part in their successes as well. IP rights affect their operations, their appeal to current and potential investors, the ability to choose certain partnerships and increase the business value for a merger or sale.

What is the attraction here? What is more important than fixed assets? The answer is information. Information is more valuable now than actual physical property. Information has the added benefit of being a highly tradable asset when it is protected by IP laws, etc. This is what increases the value of a company and this is why you need to have even a passing knowledge of how IP works and why you need to make sure it is legally protected.

Still in the dark? Here are some of the areas you may create IP in, beginning with trade secrets. Trade secrets protect proprietary information, such as what is in the Coke formula, how do they run their company and what systems do they have that makes them successfully competitive? IP also comes in the form of trademarks that protect parts of your general brand. E.g. names, pictures and slogans.

Copyright is a very big part of IP and acts to protect things like recordings, pictures, books, documents and videos. There are of course exceptions to every rule and if you do not understand how IP works, then it is usually best to discuss your concerns with a competent Los Angeles trademark and copyright lawyer. You may also want to ask about inventions, processes and types of ideas, an area that deal with industrial designs and patents. It is a big and confusing world out there and knowledge is power for your business.

Where do you start? The first thing to do is identify what you currently have for IP in your company. If you are not certain how to do that or what to do and what classifies as IP, make that call to an experienced Los Angeles trademark and copyright lawyer and find out. Once you know what you have, the next step is tracking and managing it and registering it. While that may sound simple, it is not always that easy to do. That is why a good IP lawyer is worth their weight in gold, not to mention the fact that with the right legal advice, your business will be worth its weight in gold.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

If you are on the verge of trying to corral all of your intellectual property (IP), because it is time to manage it adeptly and wisely, you need first need to know just what you are dealing with in the first place. If you do not really know what intellectual property is, you are going to have a problem. You need to at least have some basic knowledge before you move forward.

Intellectual property is any work created by a person or company. This may include, but is not exclusively confined to, the areas of trademarks, designs, copyrighted materials of literature, music, pictures, music and inventions. The area is actually quite vast and many things that may be seen to be intellectual property may not be. It depends on a variety of qualifiers. When in doubt, consult with legal counsel for a determination of what is and is not intellectual property.

If it helps any, there is a standard definition of what IP is that has been created by the World Intellectual Property Organization, or WIPO. That definition, in short, is that IP relates to information that may be included in tangible objects at the same time in an infinite number of copies at various locales worldwide. The IP is not in the copies, but in the information contained within them.

Thus, if you follow the WIPO definition, copyright protection of IP safeguards against copying of information and patents protect the method of creating a product. This may well be as clear as mud to you, and don’t feel badly. This is a confusing area of the law. Yes, even those lawyers that practice IP law for a living have their moments over definitions and what they mean.

There is one thing that people do not realize about IP; that an idea is not a form of IP. It becomes IP when work is done on it. For example, jotting down an idea and roughing out how to accomplish the desired end result. The more work you do on that idea, the more of an IP it becomes. The more ideas that get fleshed out, the larger one’s IP portfolio may become and time management becomes an issue. So does keeping abreast of all the legal ramifications of the various properties. This is what an IP lawyer is born and bred to do, provide advice. When you are stuck and cannot figure things out, speak to the attorney. It is the best investment you will ever make.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

SAP and Oracle have been rivals since anyone can remember. Unfortunately, over time, SAP took a few more liberties than they perhaps should have and crossed some lines in the sand. They were sued by Oracle and they lost; a huge loss of $1.3 billion. The court’s decision will have major ramifications for other companies when it comes to copyright infringement issues.

This particular loss was so large that the company may be faced with folding its tent and vanishing into the desert sands. It’s either that or appeal, an unappealing proposition given the nature of the decision and the court’s verdict.

The court’s decision was quite blunt about finding SAP to have been outrageously flagrant in swiping software and documents from Oracle’s secured websites. So outrageous in fact, that they also awarded Oracle just about all of the damages they wanted. Given that, and the fact that if SAP chooses to appeal, they can pretty much count of being the poster boy for really bad publicity, it is doubtful they will appeal. The bad publicity would be good for Oracle, but enough said about what it would do to SAP.

Since this particular trial took three years to grind to a close, SAP needs to carefully consider what their next step will be for the future. As the initial verdict was $3.1 billion, there is a chance that the award may be reduced. Nonetheless, the money involved is unbelievable; certainly a hard lesson about stealing from the competition. There is not much doubt that the company was tagged with unarguably one of the largest software piracy penalties anyone has ever seen.

SAP hasn’t been heard from that much since the decision was rendered, other than to say they are trying to figure out what to do next. No kidding. The interesting thing is that there is a chance they will pay the fine, whatever it may be, largely because they have at least $4.1 billion on hand to dip into, thanks to reserves stockpiled. Mind you, the $1.3 billion will still knock the stuffing right out of them for a while and mean a long, hard comeback to regain their reputation.

While it may not affect their sales, if they choose to pay and go forward, since they are a world leader in their area of expertise, they still learned a valuable lesson. And that lesson is: you have to be very cautious about copyright infringement, because even if you think it’s not a big deal swiping something from another person, you could potentially wind up paying out a lot of money.

The wild card here is that there may also be a criminal investigation. Where that may lead will likely be another story.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Currently, a large portion of the open source community, referred to as OpenStack, is working on a set of rules that actually let anyone take the software from their open source project and do whatever they want with it. Yes, including sending it all over the place and reselling it, if that’s what the person taking it wants to do with it.

In any other company or group on the planet that was developing software, one of the first issues they’d want to deal with is trademark protection, patent protection, patent infringement, etc., provided they weren’t working on other open source technology, such as Open Office.

OpenStack is a compilation of open source products that offer secure, scalable, standard-based cloud computing software solutions. They are in the midst of tweaking OpenStack Compute and OpenStack Object Storage. Who uses this software? Anyone who needs it can use it, ranging from service providers to corporations and from researchers to global data centers. All of the code is available to anyone, because they believe in the open development model.

Other open source projects do have trademark policies, but the mostly focus on who cannot and who can use the trademark. This is what people find amazing. You’d expect that the policies would deal with who could and could not use the software, so it comes as a bit of a surprise to find out that if you’re dealing with open source technology, all you can protect is the trademark itself and not the product.

Here’s how open source trademarking is protected. The rules are usually written that anyone may use the trademark for general community promotion and that anyone may use the mark if they are shipping a product that is based on the open source technology. So far, so good. But there is a bit of a glitch and that has to do with each particular open source community, meaning, each community has their own set of rules that outlines what they feel is a product that people may take and use open source technology in.

It’s the “what is a product” part of the equation that makes it very difficult to figure out what is trademarked and what is not. This is largely due to the fact that the whole reason for being for the open source community is for others to take what you may have worked on as a solution, tweak it, perhaps modify it, improve it and then pass it on to someone else, without any restrictions.

While it may sound like all the community needs to do is just figure out who gets what, when and why, the needs and reality of the open source community has to be in balance with customers outside the open source community. For instance, in OpenStack’s case, they offer two endeavors that can either go together or remain separate. It’s up to the end user as to how they want to use the technology. This has the potential to create interesting problems legally.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law

In the news lately is the story that Apple, who always seems to be walking a bit on the wild and woolly side, is being accused of trademark infringement over its use of the iPad name. While the lawsuit is being brought by a smaller company, they are serious in pursuing what they feel is a valid case.

Proview Technology, also known as Shenzhen Co., indicated to the media that they have plans to file a lawsuit against Apple for using their registered trademark – iPad – on the Chinese mainland. This is a big step for this small company, as they are in financial hot water, allegedly as a result of Apple selling the iPad on the Chinese mainland and using the same name. While it seems the two companies have met over this issue, there was no resolution of the dispute and no agreement relating to compensation.

Apple isn’t saying much. In fact, they aren’t saying anything in light of the threatened lawsuit. Proview, on the other hand, is quite vocal about taking the giant to court. The date of the lawsuit is not yet clear, but Proview’s spokesperson did indicate they would seek compensation that would include what they consider to be significant financial losses from the dismal sales of Proview’s desktop computers, or iPads, when they were released on the Chinese mainland.

This lawsuit is important for another reason. Proview is struggling to restructure a $200 million debt with creditors and should the win this trademark infringement suit, they may find their way back to financial stability sooner rather than later. Of note is that Proview owns Proview Electronics, considered to be one of five of the largest computer monitor manufacturers globally.

The rest of the story goes that Proview Electronics registered the iPad trademark in Europe and other parts of the world. In 2001, Proview Technology (Shenzhen) registered the trademarks for iPad on the Chinese mainland. Here is where things take a turn for the questionable. Apple bought the trademark for Proview International’s subsidiary in Taiwan in 2006 for $55,000, but, did not get the Shenzhen branch’s trademark rights. Therein lies the problem and the foundation for the lawsuit.

Will they be successful? Will the courts find that Apple is indeed infringing on Proview Technology’s trademark? Or is the fact that the rest of the same holding company, Proview International, sold the trademark in 2006 going to affect the decision? Can a branch of the parent company be considered separate in cases like this?

It is an interesting case to be sure and one that may have the potential to set a precedent, but only time will tell.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

In an interesting international development, U.S.-based Smart Blocks Inc., a maker of construction toys, sued the Danish company Lego A/S, noted as one of Europe’s largest toymakers. Smart Blocks petitioned the federal court for a determination that they were not infringing on Lego trademarks.

Evidently, Smart Blocks, whose headquarters are in San Marcos, Calif., are noted for their talking building blocks that feature six built-in depressible pins. The toys are marketed in seven different colors and have a variety of themes that appeal to children.

Smart Blocks had a shipment worth close to $200,000 blocked by U.S. Customs at the Los Angeles/Long Beach Port in July because there was a trademark issue with Lego. Two months later, the shipment was still on stall and there were no signs it would be released. The company ended up paying thousands of dollars for detention and storage courtesy of U.S. Customs.

“As you can well imagine, this was a significant setback for the company who indicated it had a limited supply of blocks on hand and if they were delayed any further, they may be forced to go out of business,” said David Alden Erikson, who specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

On the other side of the globe, Lego was saying Smart Blocks packaging is infringing on their trademark. “Smart Blocks says they are not, and there is the rub. Lego actually lost a court challenge asking for European Union trademark rights for the shape of their toy bricks. The question is whether or not they will also lose this case,” Erikson said.

Right now, Smart Blocks is asking the federal court to declare its packaging and products are not infringing on Lego’s trademark and they want Lego to stop saying that they are. In addition, they also want their shipment released and the cancelation of several Lego trademarks because they are generic or invalid.

“Where will this case end up? At this point, that is anyone’s guess, but largely, this case depends on how the court views Smart Blocks products in relation to Lego’s products. On the surface, they sound different and look different, but their inherent design may become the key issue. This is yet another good case to watch to learn about trademark infringement,” Erikson said.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

A food packaging company may have crossed the line with its fruit-juice packaging and infringed on Coca-Cola’s trademarks. Where that line actually is often causes lawsuit like this one, but behind these types of lawsuits is the desire to protect a well-known brand and not confuse consumers.

Johanna Foods of New Jersey filed a suit in federal court asking for a ruling that says it is not infringing on the trade dress and design patents for Coca-Cola’s Simply Orange brand juices packaging.

“While this may seem to many like a tempest in a teapot, these are important issues to Coco-Cola, which wants to ensure its trademarks (trade dress) are clearly recognizable to its customers. If someone uses a mark close to Coca-Cola’s and causes confusion, not only does Coca-Cola lose business, the consumer is cheated out of an original product,” said David Alden Erikson, a Los Angeles business litigation attorney. Mr. Erikson specializes in Los Angeles fashion law, Internet law, business litigation, trademark and copyright law.

A letter from Coca-Cola’s counsel warned the New Jersey-based company that other companies who had used the carafe-shaped container for their juices had been sued and if they persisted in using the same container, they could expect to land in court. Johanna uses an eerily similar bottle for its line of Nature’s Nectar and Tree Ripe juices, although the labels are different than the ones Coca-Cola uses. Johanna disputes Coke’s contention that the design is an indicator or origin and thus protected by trademark law.

“Counsel for Johanna states that the carafe shaped container is mostly a functional object and therefore can’t be inherently distinctive and that consumers aren’t very likely to be confused by using its containers as opposed to Coke’s,” Erikson said.

This will be an interesting case to watch, as Coke has deep pockets and can hang in there for a substantial amount of time to try and make a point. On the other hand, the court may just make a point of its own based on the interpretation of the functionality of the carafe-shaped bottle design.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

There will always be people with bright and inquisitive minds who love to create and invent new things to make existing technology even better. This appears to be the case with two Chinese brothers, Pan Lei and Pan Yong. These two enterprising young men put their heads together and invented a device that craftily converts Apple’s iPod Touch into an iPhone. It’s quite the idea, and the marketplace hails it as being innovative.

On the other hand, Apple Inc. isn’t so thrilled with the invention and is suing the brothers for patent infringement, saying they are nothing but copycats. The problem might actually be that Apple is planning a similar device. At least, that is what a recently published patent application may indicate.

The bothers’ new product, dubbed the Apple Peel 520, is a case that includes a circuit board and battery. It wraps around the iPod Touch media player and lets the user make calls, once the appropriate software is installed. This particular device requires breaking into Apple’s operating system, but it is not considered to be a counterfeit iPhone, insisted the two brothers.

The Apple Peel is, according to the brothers, original and was the joint collaboration of Pan Lei, an interior designer and Pan Young, a software engineer. They launched their new company, Yosion Technology, with the Apple Peel as its flagship product.

While consumers might be thrilled to bits with this new development, Apple, based in California, is taking a rather dim view of the whole thing. The company is seeking a patent on comparable technology, thus the reason why they are so defensive in this latest patent infringement lawsuit. There is a lot of money at stake here given the existing iPod market – 220 million music players released since 2001.

Consumers will also like the price of the Apple Peel, pegged to be about $60, a far cry from initial guesstimates of what Apple’s product (when it’s developed) would cost. Initial speculation is that it may run around $830. What consumer wouldn’t jump at the chance to save $770?

This will be an interesting case to watch as it develops. The core of it will be whether or not the Apple Peel is a copyright infringement or something that takes existing technology even further by inventing something new to turn a product into something else.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Intellectual property is just one of those things that people have difficulty getting a handle on, particularly if it happens to be something they think ought to be patented but isn’t, or is patented but they think it shouldn’t be or wonder why it is. Confused? Join the crowd. This area of the law is circuitous at the best of times.

The easiest way to begin to explain what intellectual property is means laying out the concept that it’s a physical product that can be patented so that others can’t copy the design. From there, things tend to get a bit complicated when trying to protect ideas, a range, brand or piece of software. Usually, the best way to find out if you need to patent what you have is to consult with a Los Angeles business lawyer with extensive experience in this area; a lawyer with an IP background.

It might help to know that international law has methods in place to protect ideas and, in fact, that happened in 1967 when the World Intellectual Property Organization proposed that intellectual property protection included rights relating to things such as inventions in every possible field, performances, broadcasts, artistic and scientific works, literary works, industrial designs, service marks, commercial names, trademarks, designations, scientific discoveries and protection against unfair competition. It’s quite the laundry list, but it was intended to be as all encompassing as possible.

In retrospect, if you think you have a case of intellectual property infringement, you need to first figure out what kind of intellectual property you are trying to protect. This is because copyright also applies to books and scientific publications, artwork, broadcasts, performances by artists and phonograms. Phonograms are a phonetic writing system symbol for a speech sound, syllable, or other sequence of speech sounds.

You’ll find copyright protection also used in business deals when the property needing protection is something like a brand name or trademark, whose value lies in the information it provides to consumers in terms of product recognition. Another option you could discuss with your Los Angeles business lawyer is trademarking to protect brand wording.

The concept of intellectual property may apply to new inventions as well as new designs. For instance, if an invention is definitely unique (as in not a take-off of something already in existence), or advances some known technology even further, it’s quite possible to use patent law to protect the invention so others can’t copy it for the future.

The first thing to do when dealing with intellectual property laws when you don’t know which way to proceed is to ask questions. It’s better to hire a knowledgeable Los Angeles business lawyer than to thrash about in limbo and not know what you are doing. If you do it the wrong way, it may come back to haunt you later. Look at it this way, it’s your property, idea, invention, show, design, etc. and you want to protect it. Ask how to do that and save yourself some grief later.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

“This is quite the case,” said David Alden Erikson, a Los Angeles business litigation attorney. “A naked cowboy, who sings and plays guitar for a living in Times Square, is suing what he considers to be a cheap imitation of himself – a naked cowgirl.” While this isn’t as big a patent and trademark case as NTP v. Apple-Google, it is important, as the Naked Cowgirl is accused of devaluing a well recognized brand and icon; one that has been in Times Square every day for the last 10 years.

The Naked Cowboy, better known when he has his clothes on as Robert Burck, insists the Naked Cowgirl should be paying him a franchise fee for wearing “his” proprietary grab – albeit in different anatomical locations. What is his proprietary clothing? It turns out to be a uniform of sorts, although only vaguely, as a pair of underwear is really just a pair of underwear. Or is it? Some attorney saw it as more than just undies, and now has Burck as his client.

The decision that needs to be made in this case will deal with whether or not Robert Burck owns the trademark to “naked.” And furthermore, does he also own the trademark to “cowboy?” The cowboy makes his living standing in Times Square, naked but for a pair of undies and his guitar and hat, singing for money. Does that mean he owns trademark to street guitar playing? What about this case might say there is something here that is devilishly creative and unusual and different that distinguishes his trademark?

“At the risk of sounding slightly amazed, which I have to admit I am,” Erikson said, smiling, “this case will offer the courts a whole new challenge in trying to deal with those who want to trademark any activity they do in public while in their underwear.”

Needless to say, the outcome of this case, which will no doubt achieve infamy of some sort or another, will be very interesting. Will it make it to court? Only time will tell, but try to remember that the issue of trademark infringement is a serious one and there are laws in place to prevent it from happening. Whether or not there are laws in place to deal with the Naked Cowboy’s latest endeavor – getting married by the Reverend Naked Cowboy in Times Square for a starting price of $499 – well, that’s another story.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

There are quite a number of different forms of intellectual property protected by law. “You may immediately recognize this form – the trademark,” said David Alden Erikson, a Los Angeles business litigation attorney. “A trademark may be a logo, phrase or even a word. Overall, the reason for using a trademark is to that the consumer is able to tell the difference between one company or entity and another. While in theory that works just fine, in actual practice, there are times when a trademark becomes diluted, meaning the distinction between one trademark and another is not clear and distinct.”

Trademarks are registered because they are intended to represent or be the “face” of an entity or a company. Think Nike and their “swoosh.” It’s vital that their trademark be different from all other trademarks. If somebody creates a similar trademark, it could be a rip-off, and could cause trademark dilution. “Dilution of a trademark happens in many different ways, like tarnishing, blurring and genericization. There are other ways to do this, but you get the general idea,” Erikson said. “Most jurisdictions these days, and that includes the U.S., have laws to prevent this kind of thing from happening. Of course, it does anyway, but there are guidelines and rules established to protect trademarks.”

The law, as it relates to diluting a trademark, was designed to address two issues. The first one deals with consumer protection. What that boils down to is that when a customer buys a trademarked item, they do so because they identify with the trademark. When they buy by trademark, say a pair of Nikes, the consumer is also identifying with the company that owns the mark or the business the mark represents.

“What’s important to note here is that the trademark isn’t just some form of representation, it is closely tied with and into corporate responsibility when it comes to quality. For example, Louis Vuitton luggage has their trademark on all products. It stands for attention to detail, classy presentation, quiet elegance and clean and simple design,” Erikson said.

“If you have done any shopping at stores that have a reputation for selling knock-offs, you’ve likely seen and perhaps even purchased a Louis Vuitton knockoff purse. If you take the time to examine it carefully, you’d notice things like the traditional Louis Vuitton trademark is slightly blurred, that the stitching isn’t quite as detailed and precise or that the zipper pull isn’t precisely the same kind or quality as the original. This is done by other companies who want to confuse consumers by getting them to think they’re getting an original at a cheap price,” Erikson said.

For those original designers and manufacturers who feel they have been ripped off by a company specializing in knockoffs, it’s time to talk to a Los Angeles business litigation attorney about defending the trademark. After all, there are laws in place to protect original creations.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

Krispy Kreme (KK) went to court to stop a franchisee from operating their New York Penn Station booth and another location. This case took place in a federal court and resulted in a preliminary injunction being granted to KK because the franchisee (Satellite Donuts) was lagging behind on their financial obligations, and were in contravention of the Lanham Act.

Evidently, Satellite Donuts was infringing on KK’s trademarks, continuing to run their business without authorization and “diluting” KK’s trademarks by making lousy donuts. Satellite had actually filed for Chapter 11 bankruptcy, which meant they had an automatic stay. However, the bankruptcy court altered the stay to allow KK to request their injunction in federal court.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

This sad saga began in 2008, when Satellite signed a franchise agreement for Penn Station and in 2009 also signed an agreement for a location in Baldwin, NY. When 2010 rolled around, KK sent a demand letter to Satellite pointing out they had failed to pay $310,046 as their part of the franchise agreement(s). Satellite said they could find another party to invest in their business. KK wasn’t impressed and sent a cease and desist letter along with notification their franchise had been terminated.

KK then sued and got a temporary restraining order that let KK get a quality control person at both locations. At the same time, the court ordered Satellite to smarten up and live up to the quality control standards in the agreements they signed. Satellite felt they had been denied the chance to fix their errors; that KK had inflated the debt and didn’t let them bring in a new investor. The court didn’t agree with that argument, stating KK had proven it would suffer irreparable harm if they didn’t get an injunction.

The key to the decision in this case is the judge’s dictum that said; “When in the licensing context unlawful use and consumer confusion have been demonstrated, a finding of irreparable harm is automatic.”

Cases like this can go either way, and if you are faced with a similar situation, your best bet is to discuss your case with a skilled lawyer who handles trademark and copyright law. It’s an area that many people don’t understand, and consequently wind up walking on the wrong side of the law – either intentionally or unintentionally. Either way, the original owner of the trademark has vested rights and if someone infringes on them, they are well within those rights to sue.

This is an interesting story and one that may cause a chuckle or two, but, in the long run, may make its mark on the U.S. as a first. Some enterprising pot growers tried trademark their crop recently and were almost successful. The trademark application was actually for something called Tartukan death weed. Sounds attractive, right? Like someone would want to go right out any buy it and give it a whirl.

This application was almost successful for one major reason – on April 1,2010 (not an auspicious day to do this, given it is April Fool’s Day) the U.S. Patent and Trademark Office started offering a new category for medical marijuana trademarks. The category wasn’t open long, but it was definitely no joke, despite the hilarity the Tartukan trademark application engendered. Said the trademark gurus; “We noticed that since the state law dealing with medical marijuana was introduced, there may be questions, etc. about whether or not trademark applications for this could establish lawful use relating to interstate commerce.”

Interstate commerce? As in taking medical marijuana across state lines? It’s a delicate subject. Nonetheless, despite various reservations and concerns about trade marking medical marijuana and any services related to it, this has not stopped Oakland’s Harborside Health Center from making their company name a trademark and also striving to trademark their logo.

Trademarking a health center is one thing; trademarking a specific brand of pot isn’t a good idea, because brands of pot aren’t reliable enough to trademark. Their quality, origin, reliability and potency, among other things, tends to go up in smoke, and there is no surefire scientific method to confirm a certain patch is a certain strain.

Well, the long and short of this story is that if other scientists can patent genes that alter the food we eat, maybe marijuana growers should chase down that avenue and ask about patenting plant hybrids instead.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Despite the fact that many business entrepreneurs know their stuff inside out, many of them still get hung up on the difference between a trademark and a trade name. “The trademark is considered to be a branding tool and it will identify ‘their’ goods and services as being uniquely theirs – thus distinguishing ‘their’ goods and services from others in the marketplace,” clarified David Alden Erikson, a Los Angeles business litigation attorney.

On the other hand, a trade name is a business name, and it’s normally registered with the Secretary of State where the business is incorporated. The name basically identifies the business for the purpose of incorporation. “The thing to remember here is that just because you may successfully register a trade mark, does not mean you have additional trademark protection. The truth is that there a quite a number of trade names filed that conflict with existing trademarks, which means if they are used as marks they may result in a lawsuit for trademark infringement,” summarized Erikson.

“When a business registers a mark related to a ‘service’ and not a product, it is generally called a service mark. But, just to throw a spanner into the works, a service mark (legally speaking) is the exact same thing as a trademark. Thus, you have the leeway to trademark a company name, slogan, logo, product name or some other symbol that may be associated with what you offer to consumers. By the way, you may want to combine any of these categories (say a slogan with a company name) and call that your trademark,” Erikson advised.

The origins of trademark law are rather interesting. They came about as a companion to the unfair competition law – something that protects businesses against the unscrupulous doings of other companies. “Trademarks are also related to intellectual property rights, copyrights and patents. For a further explanation, I’d recommend you talk to a Los Angeles business litigation attorney,” suggested Erikson. Federal patent and copyright protection is in place to protect a business from other people copying their ideas. Trademark protection is in place to protect consumers from copying a businesses’ ideas.

“If you want a strong mark that will hold up in just about any situation, then give me a call. We’ll talk and I will walk you through what you need to do to accomplish your goals,” added Erikson.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

Who hasn’t landed on a fake blog style website at one time or another? The problem is, not everyone knows they’ve landed on a flog. Typically, a flog deals with false advertising and unproven claims with fake testimonials. “It’s the latest way to scam money from unsuspecting surfers. Why is this important to know? It’s important to know because this practice is just beginning and lawyers need to be in a position to provide advice to advertisers and consumers about these sites,” explained David Alden Erikson, a Los Angeles Internet law attorney.

“When advising an advertiser, I’d tell them that flogs may leave them open to both civil and/or criminal liability according to federal advertising laws and FTC rules. Yes, truth in advertising, honest and legit testimonials, etc., may reduce liability for false ads, but it’s important people ‘know’ their boundaries and save themselves a potentially expensive lawsuit,” commented Erikson.

As for consumers, if they are sucked in and buy goods or services from a flog, they need to know that they may have a remedy available to them. Any harm done to a consumer may mean they can file a lawsuit. “This area of the law is so new, it is literally developing as you are reading this news release,” Erikson observed. One thing is for sure, the FTC is working on ways to protect consumers from these schemes and scams.

The biggest risk with many of these flogs are the claims made on them enticing someone to take a significant financial or legal risk. “It’s hard to not want to spend money on something if you think that the celebrity endorsement you just read is legitimate and the product claims sound reasonable,” he added.

For those companies who want and intend to run an honest business online, they need to talk to an attorney familiar with Internet law to find out how to use testimonials, why they need proper disclosures and what things to avoid if they don’t want to get slapped with a false advertising lawsuit or investigated by the FTC.

“Without over simplifying things here when it comes to flogs,” said Erikson, “it’s important to remember one simple rule to do business by, and that is always remember that truth in advertising is crucial and must come before all else,” he reiterated.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

Over the last ten years the world marketplace has expanded exponentially to meet the ever increasing demands of consumers worldwide. With more efficient communications, better software and technology, sophisticated equipment and greater investment in the manufacturing sector, global trade has exploded. Did you know that the Department of Homeland Security revealed that 81 percent of all counterfeits in the U.S. come from mainland China?

Most people think that the increase in availability of various goods is – well, a good thing – totally ignoring the reality that some of those goods may be counterfeit knockoffs. While the knockoffs may very well be less expensive than the originals, they are not as well made as the originals (that’s why people pay big bucks for the original in the first place.) Not worried about that? You should be, because making counterfeit items is not only illegal, it is an incredibly dangerous risk for people who buy those products later. This relates to defective products.

Generally speaking, most manufacturers do a good job of quality control for their goods. If something does get messed up, a recall will totally tank that company’s reputation and affect their sales. One only had to look at recent baby accessory recalls to know that is true. That aside, one thing is brutally clear when it comes to bootleggers or counterfeiters, most of them have no clue (nor care) what the technical niceties are when it comes to making various goods.

They don’t know how to make sure seams don’t rip, that zippers work, that baby toys won’t choke a baby or how to keep the dyes from leaching out of fake leather goods. In short, their only concern is getting something out on the market as fast as possible that looks OK and is cheap. Looking OK and cheap is one thing; whether or not that product works, will last or won’t harm someone is another can of worms entirely.

Knockoffs are not just clothing, shoes, handbags and jewelry. They can and do include things like exploding fake Zippo lighters, fake diabetic strips that may not give accurate readings and fake power cords, power strips and night-lights that may fail. While those may be the smaller things in life, there is more bad news. The latest media reports include stories about how fake/counterfeit computer components from China are winding up in US ships and warplanes. Gives one pause for thought, doesn’t it?

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

You may have noticed that sculpture downtown in the middle of the rotunda at your local city hall. At least you “think” it’s a sculpture, but then again, it might also be a bike rack. That’s the prevailing problem with art – what is it? This is actually a question that has been argued in many courts across the nation, and frankly, no one is even close to being able to define what art really is and they may never be.

The reason for that? It changes all the time. One year the “in” thing may be pictures of soda cans in a back alley depicting the angst of modern society and their throwaway habits – and this will be considered to be art. The next year, and honestly sometimes even the next month, those same soda cans become passé and the newest hot item is something that passes for finger painting done on steel panels. Go figure. Nonetheless, someone somewhere may find their “art” being knocked off and the battle may be on in the form of a lawsuit.

When defending the rights of the creator of the “art,” the main issue is what belongs to whom, and let’s also not forget who actually owns the “art.” While most would say the creator of the art is the owner, are they really? They don’t have anything appropriated to their work once it’s not in the studio.

Then, there is the often contentious issue of the relationship the artist has with the gallery. The artist is the worker who produces the work, but the gallery also has ownership rights to the work because they represent the artist. Often they get a whopping 50% cut of the final sale price for the work because they promoted it, showed it and raved about it and that got the artist and the work noticed.

Ownership changes hands through sale of the work, or does it? That’s the multi-million dollar question and one that poses an endless conundrum for those with a philosophical bent. It also poses some interesting questions in legal cases as well.

Here is an example of the problem of legality and ownership issues. Have you heard about Associated Press (AP) suing Shephard Fairey? They sued him over the Obama Hope posters that he artistically interpreted. Problem is that AP says his posters amount to copyright infringement because he mass produced a photo originally owned by AP without their permission. Fairey didn’t use the exact photo, he artistically interpreted it.

Fairey’s portrait version of the original image was based on a photo taken in April 2006 by AP photographer Mannie Garcia. AP kicked up a stink and in reply Fairey sued for a declaratory judgment that his poster, despite its origin, was “fair use” of the original photo. This is just one example of the kinds of issues that are floating around in the world of art law with the underlying confusion threaded into the mixture of what happens when you give art a primary holder. Is its meaning, which only the artist seems to know and understand, affected by giving it an owner?

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Being in business means dealing with everything that comes up. That includes copyright issues.

“Copyright is almost a four letter word for many in the world of business these days. While it’s something they know they need to deal with, they would rather not. This is largely due to the fact that this particular area of the law is complex, complicated and ultimately, a royal pain to deal with without the help of an attorney with experience in this area,” commented David Alden Erikson, a Los Angeles business litigation attorney with extensive background in this area of the law.

“To sum it up, copyright protects authorship of original works and that includes artwork, music and the written word, not to mention intellectual property. But, for now, I’m only going to deal with copyright to try and simplify things,” added Erikson.

Copyright actually protects more than just published works – meaning things you may read, write, etc. – it is applicable to “things” put out there in the public domain, such as exhibited, performed or made accessible by the Internet. This is where any similarities between countries ends. Every country has its own copyright laws. “If you don’t know what laws apply in your country (area), make tracks to talk to a lawyer with experience in this area. Better to be safe than find yourself being sued for violation of copyright,” Erikson remarked.

“Think copyright doesn’t apply to you because you don’t dabble in the creative arts? Think again, and then go take a look at your website copy, brochure copy and your flyers. All of those materials are affected by copyright,” explained Erikson. “You hopefully wouldn’t ‘borrow’ someone else’s copy from their site and call it your own, and you sure wouldn’t want someone pinching copy off your website either. If someone did swipe your copy without your express permission or giving you credit, this breach may result in a lawsuit,” he added.

What if the website owner did not write the copy for the site, but had someone do it for them? In a case like that, the copyright would still vest in the business. This is due to the fact that the owner would hold the copyright under “work for hire.” Work for hire is a section in the copyright act that covers situations like this where the copy is written by another person.

“While you might not develop an appreciation for the finer points of copyright law and copyright infringement, you really should have a passing acquaintance with the general highlights. Put another way, you’d likely want to know what to do if someone stole your copy and vice versa, should you make the same mistake,” suggested Erikson, a Los Angeles business litigation attorney. “If you find that copyright is about as clear as mud, give me a call for a more in-depth explanation,” he offered.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

The US Supreme Court has said the NFL can’t avoid antitrust laws when dealing with team jerseys.

“The last place one would expect to find the US Supreme Court is on the football field, but there they are, dealing with the sale of NFL team jerseys and hats. It was actually an interesting case and may well set precedent for the future,” remarked David Alden Erikson, a Los Angeles business litigation attorney.

The core nugget of the case decision was that the National Football League isn’t exempt from antitrust laws relating to the sale of team jerseys and hats. The decision said the NFL could be sued by someone who formerly supplied the NFL with clothing who alleged the NFL participated in “illegal restraint of trade” because they gave an exclusive licensing agreement to one company for their 32 teams.

At first, it looked like the case may have been lost at a federal appeals court when they ruled the 32 teams were acting as a single entity in offering a licensing agreement. That meant the league as a whole was then protected from restraint of trade accusations. The supplier, American Needle, took their case to the Supreme Court because they did not agree with the Chicago Federal Court ruling.

“As it turns out, that was a smart tactical move, as the Supreme Court reversed the lower court by indicating that the teams don’t just compete on the field. Indeed, they compete when it comes to dealing with trademark issues and with intellectual property. Put another way, every team has/is a source of a valuable trademark, as they are not all the same,” explained Erikson.

“So the bottom line here is that the initial idea by the NFL to license their 32 separate trademarks in a collective manner to just one person ultimately took away the independence of each team’s decision making and quashed any actual or potential competition,” Erikson clarified.

This case is also interesting for the fact that it is the first time a private plaintiff won an antitrust case since 1992. Having said that, this isn’t over yet because the case has now been shuttled back down to the lower courts to take a look at whether the NFL acting collectively to create jerseys, hats, and other items complies with antitrust laws. The NFL may still pull a goal out of this situation.

What we can say for sure here is that the NFL isn’t granted immunity, but they do ultimately get a chance to present an argument saying that the anticompetitive benefits of joint licensing outweigh anticompetitive harms.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

The online world is indeed getting more and more sophisticated, particularly when it comes to using open-source collaborative efforts to develop programs. The most well-known example of that would be Open Office, much the same as MS Word, but users seem to feel it’s easier to use. In addition to that observation, it is also constantly updated, because it’s open source, and it’s free. You can’t beat that as a major motivator to use it.

Over ten years ago, Linux was the first company to drive the revolution to open source technology and now, a drug company is dipping its toes into the open source waters for developing a new drug. GlaxoSmithKline PLC (GSK) is on the cutting edge of what may be the latest in creating new drugs quickly in response to perceived threats to humanity.

Just recently, GSK allowed the public to access the designs for about 13,500 chemical compounds that it feels may inhibit the parasite that causes malaria. The idea here is that by sharing information and partnering with others, scientists may find the right combination faster than if they were trying to do it by themselves.

It’s certainly not too far-fetched to think that everyone who sees the chemical compounds are going to see them they same way GSK scientists do. Often innovation and success comes from pooling the ideas and expertise from others with different approaches. At the moment, two government websites and one private one will act as hosts for the data.

This step forward into sharing what has previously been a deep, dark company secret may open the doors to the creation of drugs that are not owned by a single company. That in itself would be a giant step forward for the global community. Would it mean they would lose money or are we seeing the greening of a global sense of community responsibility for everyone affected by disease?

Interestingly, drug formulas are typically tightly guarded trade secrets and often end up being blockbuster sellouts with billions being made for the drug company. Is GSK about to give that potential up in this experiment? Chances are the answer is no, largely because malaria usually plagues poor countries and drugs for those countries aren’t famous for providing a large payback, thus reducing the drug company’s risk.

Just when you’d think Microsoft would have nothing to do with a venture of this type, up pops the information that one of the three websites hosting this open source effort is called Collaborative Drug Discovery, an Eli Lilly & Co spin off with funding from the Bill and Melinda Gates Foundation and Flounders Fund.

While the current drug information sharing is being done to experiment with “neglected” diseases, there is some speculation this process may be viable for developing commercial drugs. That might be a bit of a stretch for the simple reason that intellectual property issues would need to be dealt with before anyone could proceed. No matter what the outcome of “this” experiment in camaraderie, it may turn out to be “the” way of doing business in the future.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

There is one exception to the general rule of copyright vesting in an author’s work. It’s called “work for hire.”

In a nutshell the concept of work for hire is meant to let a company train, share ideas and educate the people they employ without the underlying fear that they are creating their own future competition. Generally speaking, this is an exception to the general rule of copyright where it vests in the author of a work.

Let’s take a closer look at this doctrine. A company employer is assumed to own copyright on any work created by their workers during the scope of their job. Along with this assumption is the fact that businesses will usually also lay claim to ownership of work produced by independent contractors (if they commissioned the work); if both parties agree in writing the work was work for hire, and that the work itself fits in one of nine categories enumerated in federal law.

As you may expect, the language in the statute leaves the door fairly wide open for vigorous arguments. Let’s look at an example. What if you had a tech support person working for you during the day that went home at night and created software applications? Is that person now working outside the scope of their job at your company? What if the person used skills or ideas learned at your workplace? While you might have thought to put scenarios like this in a work for hire document, the vital question is whether or not “you” will own the work.

There is no right or wrong answer to those questions because an answer is dependent on the facts of each case individually. This is why it is critically important to speak to a Los Angeles business litigation attorney with expertise in this area to outline what you would need to protect your company.

Now, here comes the fly in the ointment – startup tech companies who need their software developed for them and they hire out work as they need it done and when they can afford it. The fly in the ointment is that computer code isn’t really in any one of the nine federal work for hire categories, which puts a crimp in what the company is supposed to do. Put another way, this means the company almost has to hope the programmer’s ethics are superior, and that they won’t use what they’re working on to start their own firm.

The good news is that a recent court decision, JustMed, Inc. v. Byce offered this area of the business world a bit of elasticity when dealing with work for hire issues. The court held that a software developer was an employee and that meant any code developed belonged to the company that hired the developer.

This is an interesting case for another reason as well. The court came to this verdict by almost flying in the face of considerations that would usually lead courts to classify a relationship as being that of an independent contractor. Those factors included: the parties never having a written employment agreement; the business didn’t withhold taxes, provide benefits or a W-2; the company didn’t offer much in the way of direction for the job; the contractor used their own equipment and worked remotely.

The bottom line here is that this area may yet be open to further interpretations as new cases develop for consideration. In the meantime, each case is based on and dealt with on its own merits virtually guaranteeing different results every time. When in doubt about the work for hire doctrine, talk to a Los Angeles business litigation attorney. It could save you some grief later.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

“Trademark infringement online is not that well understood, nor do people comprehend that what they are using from someone else’s site without express permission, amounts to stealing,” Los Angeles Internet law attorney David Alden Erikson outlined.

“When it comes right down to it, trademark infringement on the Internet is out of control. Quite regularly you will see third parties using established trademarks and domain names, etc. with the trademark holder’s permission. Furthermore, the usage of third party trademarks as keywords in ads on MSN, Yahoo, Google and other ad networks is very controversial, as is using those marks in the text of ads triggered by keywords,” added Erikson.

This brings up the need to know about keyword trademark infringement. “Basically it works like this,” outlined Erikson. “Trademark law prevents third parties using established trademarks when using them would confuse consumers about the origin, sponsorship, source or affiliation between the rightful trademark holder and the third party using the mark,” he explained. Of note is that fact that keyword infringement lawsuits have been launched against companies using a trademark and companies like Google who offer the software that people use to advertise.

In a nutshell, bidding on trademarks as keywords will trigger an infringement threat letter from the holder of the trademark; which makes eminent sense, because bidding on their trademarks as a keyword for advertising competition acts to divert their consumers to the competition by taking advantage of the trademark holder’s good will.

On the other side of the fence, the person bidding for the trademark sees using it as a bonus to give consumers even more choices. In other words, the issue is whether or not keyword advertising is an illusory business or valuable marketing. The courts haven’t really delved into this issue a whole lot. Those that have agree that none of the general rules apply.
“What it all comes back down to is whether or not – the ultimate test – is whether the use of the keywords by others (than the original holder) would confuse buyers. This also brings up the concept of ‘initial interest confusion.’ This means most buyers wouldn’t be confused once they got to the competing website, but allows for a trademark infringement claim if the buyer would ‘reasonably’ have been deceived before clicking on the ad,” said David Erikson, a Los Angeles Internet law attorney.

“When push comes to shove, if you go ahead and use trademarks as keyword triggers and also use them in ad text for keyword ad programs, watch your step to avoid being sued. If in doubt, give me a call and we’ll figure it out,” offered Erikson.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

Most people tend to think of knockoffs in terms of the fashion industry: a knockoff of a famous designer’s dress, shoes, handbag or jacket, etc. “Think McQueen vs. Madden, a rather famous shoe knockoff lawsuit. While clothing seems to have been the major source of the latest knockoff lawsuits, it looks like other companies are getting fed up with people copying their designs and trying to pass them off as their own. Witness this latest case of lighter-making giant Zippo Manufacturing Company who is suing four Chinese companies,” suggested David Alden Erikson, a Los Angeles fashion law attorney.

It’s not just the lawsuit that is making headlines in this case; it’s the fact that Zippo is going to be laying off about 15% of their production line workers, in part because of the knockoffs of their lighters. The country really doesn’t need any more layoffs in these tough economic times, but that appears to be what will happen soon. The company has filed a complaint with the U.S. International Trade Commission to stop the manufacturing and sale of the knockoffs from the biggest source of knockoffs in China.

Along with a downsizing in their workforce, Zippo also cites a 30% drop in their business, due to the knockoffs. If they can stop the flood of fake lighters and business picks up, the out-of-work employees will be called back. “While a lighter is hardly an item of clothing, the principal behind it being ripped off is quite similar to a fashion designer seeing their creations sold at cheap prices to anyone who wants a look alike,” added Los Angeles fashion law attorney Erikson.

Sick of being knocked off, fashion designers have started to fight back and are working with the Council of Fashion Designers of America to get their fashions copyrighted. Those who can’t afford the big ticket original designs appreciate getting the almost originals for less money, but fashion designers have had it with the rip-off artists cutting into their bottom line profit.

If designers are able to register their designs with the U.S. Copyright Office, they would then be protected for three years, and it would be illegal for anybody to make anything even remotely similar. “Would this solution, should it come to pass, work for knocked off lighters? It may, but only time will tell who will win the war of the similar looking product with a similar (but misspelled) name at the cheaper price,” speculated Erikson.

The whole question here is the rights of designers and original makers of various items (purses, jewelry, watches, etc.) to have their product protected from someone else who would steal it and profit from it. This problem isn’t really new, but the time has come when the original makers are fighting back and taking action.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com

The Genetic Information Nondiscrimination Act (GINA) gives the nod to the fact that advances in genetics is crucial, indeed critical, to medical progress. Unfortunately, these advances held the potential to have the information misused against employees. In order to avoid this possibility, Congress passed GINA to ostensibly protect genetic information of workers and ban employment discrimination that may be based on genetic information.

What does genetic information include? Typically, it is a sign of the possible manifestation of a disease or disorder that may run in an employee’s family. Genetic testing usually takes place in clinical research or other areas that examine human RNA, DNA, proteins, chromosomes and/or metabolites which detect chromosomal changes, mutations or genotypes.

Just to avoid some confusion here, according to the Act, it is against the law for employers to fire, not hire or discriminate in other ways against a worker. This would apply to circumstances dealing with pay and the conditions and terms or privileges of their employment based on genetic information. It is also against the law for employers to refuse workers opportunities or use genetic information against them to affect their employment status.

It would seem logical that GINA would also make it illegal for an employer to ask or demand genetic information from an employee or their families. There are, however, some exceptions to the rules, and this is certainly an area you will want to speak to an experienced attorney about if you find yourself in the position of having been requested to provide genetic information.

The exception to the rules come into play when an employer – by accident – asks or requires a family medical history; when a company offers health or genetic services as a component of a wellness program and worker’s provide their written consent; when an employer asks for or requires a family medical history from workers under the FMLA; where the company buys material publically available that includes a worker’s family medical records; and where the genetic information is used for monitoring biological effects of toxic substances in the workplace.

It may seem like there are just too many exceptions that an employer could use to get the prohibited information and if that is the case, then what was the point of the Act in the first place? Fair question and a valid one too. This Act does address this by saying that even if the employer gets genetic information under an exception, they are still prohibited from using it against a worker for any reason.

While there are other safeguards built into this Act that are intended to protect workers whose employers to happen to get their genetic information, it still raises questions about violation of secrecy and privacy. If the employee happens to be dead set against that kind of information being at the hands of their employer and they say so, the company may not retaliate against them.

As you can see, this is a new area and largely untried and untested in the legal arena. It will be interesting to see how the rules are interpreted, if a case that’s filed under a breach of the provisions of this Act makes it to court.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Young entrepreneurs in the fashion design industry often want to know if they are able to copyright their latest creation. Unfortunately, they can’t.

Copyrighting a fashion design is not possible because it does not provide the creator of that design with the kind of protection they really want – protection from knockoffs. In fact, the converse is true when a fashion designer gets ready to launch a new design; they expect they will be copied. Often, they get knocked off before their product even hits the market; such is the cutthroat competition within the industry.

Until recently, this dire state of affairs has caused a great deal of angst among designers who want to go places but want their creations to remain their own and not show up under someone else’s label as a “less than perfect copy” of the original. There may be good news on the horizon in the form of the Design Piracy Prohibition Act – if it actually passes into law. This bill would offer copyright protection for fashion designs widely defined as eyeglass frames, duffel and tote bags, handbags, purses and clothing. Admittedly, clothing is a tad vague, but chances are that would be sorted out in the courts when push came to shove and a lawsuit was filed.

This Act actually amends Chapter 13 of the Copyright Act, which you may find rather interesting since that chapter provides protection to one category of useful articles, boat hull designs. Wondering what boat hull designs have to do with clothing, et cetera? The key here is the term “useful article.” Currently, fashion designs are classified as “useful articles” and have what is referred to as an intrinsic utilitarian function. There is more to that definition, but you have the key element.

Right now, designs of useful articles may be protected under copyright law “only if such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” In addition, there is very limited protection to be had under trade dress (trademark) and design patents (patent) law. The problem with those two “protections” is that they’re not practical for the fashion industry.

The proposed Act suggests a three year protection for fashion designs. Why? It’s limited because typically fashion trends are rather short-lived at the best of times. You’ll also find out that applications for protection may be filed at the U.S. Copyright Office, where it would be put on a database of protected designs and images of that design.

The Act also aims to narrow the definition of innocent infringement so that the courts are able to impose liability on those who had reasonable grounds to believe a design was protected. It would also boost damages for infringement, something the fashion industry would be enormously happy to see.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Internet law is a bit like a Wild West frontier town without a sheriff in sight. Trademark infringement is common online.

“Trademark infringement online is not that well understood, nor do people comprehend that what they are using from someone else’s site without express permission, amounts to stealing,” Los Angeles Internet law attorney David Alden Erikson outlined.

“When it comes right down to it, trademark infringement on the Internet is out of control. Quite regularly you will see third parties using established trademarks and domain names, etc. with the trademark holder’s permission. Furthermore, the usage of third party trademarks as keywords in ads on MSN, Yahoo, Google and other ad networks is very controversial, as is using those marks in the text of ads triggered by keywords,” added Erikson.

This brings up the need to know about keyword trademark infringement. “Basically it works like this,” outlined Erikson. “Trademark law prevents third parties using established trademarks when using them would confuse consumers about the origin, sponsorship, source or affiliation between the rightful trademark holder and the third party using the mark,” he explained. Of note is that fact that keyword infringement lawsuits have been launched against companies using a trademark and companies like Google who offer the software that people use to advertise.

In a nutshell, bidding on trademarks as keywords will trigger an infringement threat letter from the holder of the trademark; which makes eminent sense, because bidding on their trademarks as a keyword for advertising competition acts to divert their consumers to the competition by taking advantage of the trademark holder’s good will.

On the other side of the fence, the person bidding for the trademark sees using it as a bonus to give consumers even more choices. In other words, the issue is whether or not keyword advertising is an illusory business or valuable marketing. The courts haven’t really delved into this issue a whole lot. Those that have agree that none of the general rules apply.

“What it all comes back down to is whether or not – the ultimate test – is whether the use of the keywords by others (than the original holder) would confuse buyers. This also brings up the concept of ‘initial interest confusion.’ This means most buyers wouldn’t be confused once they got to the competing website, but allows for a trademark infringement claim if the buyer would ‘reasonably’ have been deceived before clicking on the ad,” said David Erikson, a Los Angeles Internet law attorney.

“When push comes to shove, if you go ahead and use trademarks as keyword triggers and also use them in ad text for keyword ad programs, watch your step to avoid being sued. If in doubt, give me a call and we’ll figure it out,” offered Erikson.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

The post Keyword Infringement Common in Cyberspace first appeared on SEONewsWire.net.]]> http://www.seonewswire.net/2010/06/zippo-sues-over-chinese-knockoff-lighters/ Thu, 03 Jun 2010 16:20:03 +0000 http://www.seonewswire.net/?p=3707 Knockoffs don’t just happen in the fashion industry, as this case demonstrates. Here a lighter is the leading light in a lawsuit. Most people tend to think of knockoffs in terms of the fashion industry: a knockoff of a famous…

The Genetic Information Nondiscrimination Act (GINA) gives the nod to the fact that advances in genetics is crucial, indeed critical, to medical progress. Unfortunately, these advances held the potential to have the information misused against employees. In order to avoid this possibility, Congress passed GINA to ostensibly protect genetic information of workers and ban employment discrimination that may be based on genetic information.

What does genetic information include? Typically, it is a sign of the possible manifestation of a disease or disorder that may run in an employee’s family. Genetic testing usually takes place in clinical research or other areas that examine human RNA, DNA, proteins, chromosomes and/or metabolites which detect chromosomal changes, mutations or genotypes.

Just to avoid some confusion here, according to the Act, it is against the law for employers to fire, not hire or discriminate in other ways against a worker. This would apply to circumstances dealing with pay and the conditions and terms or privileges of their employment based on genetic information. It is also against the law for employers to refuse workers opportunities or use genetic information against them to affect their employment status.

It would seem logical that GINA would also make it illegal for an employer to ask or demand genetic information from an employee or their families. There are, however, some exceptions to the rules, and this is certainly an area you will want to speak to an experienced attorney about if you find yourself in the position of having been requested to provide genetic information.

The exception to the rules come into play when an employer – by accident – asks or requires a family medical history; when a company offers health or genetic services as a component of a wellness program and worker’s provide their written consent; when an employer asks for or requires a family medical history from workers under the FMLA; where the company buys material publically available that includes a worker’s family medical records; and where the genetic information is used for monitoring biological effects of toxic substances in the workplace.

It may seem like there are just too many exceptions that an employer could use to get the prohibited information and if that is the case, then what was the point of the Act in the first place? Fair question and a valid one too. This Act does address this by saying that even if the employer gets genetic information under an exception, they are still prohibited from using it against a worker for any reason.

While there are other safeguards built into this Act that are intended to protect workers whose employers to happen to get their genetic information, it still raises questions about violation of secrecy and privacy. If the employee happens to be dead set against that kind of information being at the hands of their employer and they say so, the company may not retaliate against them.

As you can see, this is a new area and largely untried and untested in the legal arena. It will be interesting to see how the rules are interpreted, if a case that’s filed under a breach of the provisions of this Act makes it to court.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Unfortunately, they can’t.

Copyrighting a fashion design is not possible because it does not provide the creator of that design with the kind of protection they really want – protection from knockoffs. In fact, the converse is true when a fashion designer gets ready to launch a new design; they expect they will be copied. Often, they get knocked off before their product even hits the market; such is the cutthroat competition within the industry.

Until recently, this dire state of affairs has caused a great deal of angst among designers who want to go places but want their creations to remain their own and not show up under someone else’s label as a “less than perfect copy” of the original. There may be good news on the horizon in the form of the Design Piracy Prohibition Act – if it actually passes into law. This bill would offer copyright protection for fashion designs widely defined as eyeglass frames, duffel and tote bags, handbags, purses and clothing. Admittedly, clothing is a tad vague, but chances are that would be sorted out in the courts when push came to shove and a lawsuit was filed.

This Act actually amends Chapter 13 of the Copyright Act, which you may find rather interesting since that chapter provides protection to one category of useful articles, boat hull designs. Wondering what boat hull designs have to do with clothing, et cetera? The key here is the term “useful article.” Currently, fashion designs are classified as “useful articles” and have what is referred to as an intrinsic utilitarian function. There is more to that definition, but you have the key element.

Right now, designs of useful articles may be protected under copyright law “only if such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” In addition, there is very limited protection to be had under trade dress (trademark) and design patents (patent) law. The problem with those two “protections” is that they’re not practical for the fashion industry.

The proposed Act suggests a three year protection for fashion designs. Why? It’s limited because typically fashion trends are rather short-lived at the best of times. You’ll also find out that applications for protection may be filed at the U.S. Copyright Office, where it would be put on a database of protected designs and images of that design.

The Act also aims to narrow the definition of innocent infringement so that the courts are able to impose liability on those who had reasonable grounds to believe a design was protected. It would also boost damages for infringement, something the fashion industry would be enormously happy to see.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

The whole point of this Act, should it get passed, is to extend intellectual property rights and concepts and related litigation to the world of fashion and design. The Act has been kicking around for some time, but because it evidently has some teeth, it’s been viewed as being controversial and thus put on the back burner, until now.

The latest attempt to stop knock-offs, the stalled Design Piracy Prohibition Act, aims to provide sui generis protection to fashion designers for a period of three years. Sui generis is a Latin expression, meaning of its own kind or unique in its characteristics. Design piracy legislation is already in place in Japan, India and Europe.

The Act would extend protection to “the appearance as a whole of an article of apparel, including its ornamentation,” with ‘apparel’ defined to include men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear; handbags, purses, and tote bags; belts, and eyeglass frames. To get the protection for three years, a designer would have to register with the US Copyright Office within three months of going public with a design.

“Fashion piracy and knock-offs are extremely unfair and economically hurtful for emerging designers. This is because many may see their designs knocked off before their own creations get to stores. While there needs to be a way to stop this, I worry that the legislative approach may have some unintended consequences,” said David Alden Erikson, a Los Angeles fashion law attorney.

With the advent of more and more knock-offs and rip-offs of aspiring designer’s creations, and the subsequent more frequent legal battles this has engendered, this issue has come to the forefront once again. While the general public doesn’t think much about it, other than what they are ultimately paying for an item, designers are quite fed up with being knocked off. It costs them money and prestige.

Currently, fashion only has the protection of copyright if its shape is non-functional enough to be classified as a creative sculpture; or that a design, pattern, or image on the clothes qualifies as pictorial/graphic. The law does offer some protection against counterfeiters, but this only if the trademark defense is used and not when a knock-off is copied under a different label. There is also patent protection of sorts available that only applies to an ornamental design that is new, original and not obvious. The definition for new, original and non-obvious is pretty tough to pin down.

The prevailing opinion is that the “new” law would have the right kind of impact and clout, plus have the potential to drive many small fabric and apparel companies out of business because they don’t have the money to hire a lawyer and fight the bigger firms knocking off their creations. As with many things when it comes to infringement and how to stop it, there are pros and cons, each with valid arguments, but no middle of the road compromise seemingly ready and waiting in the wings. Typically, that would then leave the courts as the referees.

“This is one of the things that worries me,” outlined Erikson, “as this new Act may do little more than create a cottage industry for fashion lawyers who would work on (patent) registrations and on the possible flood of litigation over what counts as original and who started a trend,” he added. This sounds a little like the sitcom, Desperate Housewives – lots of fighting and very little gets resolved, unless revenge counts.

In one corner is the Council of Fashion Designers of America, the face of big-name fashion, and they want the Act to pass. In the other corner is the American Apparel and Footwear Association who isn’t thrilled with the idea, as they feel it will lead to never ending lawsuits between legitimate companies. “Will it come to pass? No one is certain, but there is certainly a lot of lobbying going on to push the Act back into the limelight and make sure it does see the light of day this time,” Erikson commented.

To learn more about David Alden Erikson, Attorney at Law, visit “http://www.daviderikson.com” .