Posts made in November, 2013

Social Media, Marketing and Privacy Issues: Tips to Remember

Posted by on Nov 20, 2013 in Uncategorized

Before launching a social media marketing campaign, consider the following: Be sure you disclose what information you collect from your audience, why you collect it, and how you use that information. Does your marketing campaign or website use “cookies”? If so, disclose it. If you do not know, ask your web developer (or someone else who could explain this practice to you), then disclose accurately what your site uses. Does your marketing campaign target children? If not, be sure to address this honestly- for example by prohibiting use of your site by children under the age of 13. If so, be sure you comply with the Children’s Online Privacy Protection Act. It would be a good idea to have a lawyer review your policies or advise how to comply with this law. Always remember to contact an attorney if you have any specific questions or...

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Trademarks 101 PART 5 — Avoiding Mistakes in the Trademark Process by Assessing the Likelihood of Confusion

Posted by on Nov 7, 2013 in Intellectual Property

So, startups and entrepreneurs, you think your trademark situation is totally cool because you conducted a full trademark search, right? Wrong. Well, at least not necessarily… Sometimes even a full trademark search isn’t enough because it often doesn’t reveal important details about the actual use of a trademark in the marketplace. In order to assess the likelihood of confusion and the level of risk associated with a third party’s trademark that may potentially conflict with yours, you should determine the nature and extent of any potentially conflicting trademark’s use. “Likelihood of confusion” is the crucial test in trademark infringement and unfair competition claims. Although there is some variation among our circuit courts of appeal, there are similar factors that are generally considered when assessing the likelihood of confusion with a potentially conflicting third-party trademark. Some important factors to assess with regard to a potentially conflicting mark’s use are: The length of time the third party mark has been in use The goods or services for which the mark is used The representative consumer of the good or service The price point of the good or service Finally, one other important factor to assess is the third party’s history of trademark enforcement—If the third party has a history of active litigation regarding trademark infringement or unfair competition, you may really want to think twice before pursuing a mark that could potentially conflict or be confused with that mark. Because basic internet searches may not be sufficient to determine the information needed to fully assess the use of a third party’s mark, it may be advisable to engage a trademark investigator to do the job—those do exist. And, as always, please consult a trademark attorney if you’re interested in protecting your image or brand or you find this discussion murky and...

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Trademarks 101 PART 4: Avoiding Mistakes–Don’t Ignore Abandoned Applications or Cancelled Registrations

Posted by on Nov 1, 2013 in Intellectual Property

Here’s another mistake startups and entrepreneurs make when it comes to protecting their brand or image: Even if they’re trying to go through the trademark process and conduct searches, many startups and entrepreneurs mistakenly assume that they shouldn’t worry about applications that have been abandoned or trademarks that are the subject of cancelled registrations. The thing to remember is: Although a trademark registration is cancelled or an application is abandoned, there is still the possibility that the underlying trademark may be in use and/or that the owner of the underlying trademark may have common law rights in the mark. Ignoring those applications and registrations can be a huge mistake if the mark is in use or if the trademark has not been officially and legally abandoned (e.g. the use has stopped temporarily). There are many reasons why a trademark registration may be cancelled or an application abandoned which have nothing to do with whether the trademark is in use. For example, docket failures and failures to overcome USPTO office actions are reasons a trademark registration may be cancelled or an application abandoned. Therefore, if you’ve conducted a trademark search and you come across an abandoned application or cancelled registration for a mark that is similar to the mark you want to use and the mark is for a related good or service, you will probably want to conduct further investigations to determine whether the mark is still in use and, if the mark is no longer in use, to determine when the use stopped and whether the owner has plans to pick the use back up again. If you have questions concerning your brand, image or trademark search, please contact a trademark...

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