by Kathleen Lynch | Mar 2, 2016 | Entrepreneurship, Innovation, Start Up Considerations, Trademark Service Mark
A European General Court recently denied the Coca-Cola Company European Community trademark protection for the shape of its new bottle design. European Community trademark protection provides trademark rights to the owner throughout all European Union member states.
The bottle design was determined by the court to lack distinction. In fairness, protection of a shape in the EU is difficult to prove. The shape must be shown to be recognizable by consumers by shape alone. Coke failed to meet its burden of proof in this situation.
Here, Coke revamped its bottle design and made it less distinctive than previous designs, which were protected by EU Community trademark registration. In an effort to modernize their product packaging, Coke may have drifted away from its recognizable bottle shape.
What’s the take away here? For any company, protecting the shape of a product through trademark registration is a challenge. The shape must be sufficiently distinctive to enable consumers to recognize the product over the competition. If your organization is going to go down that route, be sure to create a sufficiently distinctive product that is recognizable by your customers over the competition.
Protecting your innovative developments is critical to any organization. Having the right person to help you make that decision is important. The Law Office of Kathleen Lynch PLLC is designed to help businesses such as yours keep ahead of the game. The first telephone consultation is free. Email us at kl****@*****aw.com.
by Kathleen Lynch | Aug 11, 2015 | Entrepreneurship, Innovation, Start Up Considerations
Joseph Tierney, is a well known street artist known as “Rime”. He sued fashion designer, Jeremy Scott and high-end Italian apparel brand, Moschino over the dress Katy Perry wore to the Metropolitan Museum of Art’s Met Gala in May.
Rime accused Moschino and Scott of copying one his giant murals entitled “Vandal Eyes,” which is now located on the side of a Detroit building, and displaying the mural on Perry’s dress. The name and signature of Rime were also on the dress. The dress and mural can be seen here.
Rime is bringing copyright, unfair competition and publicity rights claims against Moschino and Scott.
Rime states that the dress, which violated his rights, was also worn by supermodel Gigi Hadid at a the February 2015 Moschino runway show in Milan. In addition, photos of the dress are on the company’s websites as well as social media. Court documents reference The Wall Street Journal as reporting Moschino experienced a 16 percent increase in revenue for the first quarter of 2015.
Rime is asking the court to stop any further marketing or sale of the dresses as well as all profits made from the sale or any dresses, and other monetary damages.
What’s the take away here? Don’t copy someone else’s material. If you find something you like, ask if you can use it. If you cannot, create something yourself or go elsewhere.
Protecting your innovative developments is critical to any organization. Having the right person to help you make that decision is important. The Law Office of Kathleen Lynch PLLC is designed to help businesses such as yours keep ahead of the game. The first telephone consultation is free. Email us at kl****@*****aw.com.
by Kathleen Lynch | Jan 29, 2015 | Entrepreneurship, Patent Prosecution, Start Up Considerations, Trademark Service Mark
Intellectual property is the life blood of many small businesses and entrepreneurial enterprises. Knowing how and what may need protection could mean the difference between success and failure. I set forth below three basic things every entrepreneur and business person should do to protect the intellectual property inherent in any organization.
- Identify your intellectual property
- Before you can protect your intellectual property assets, you need to understand what they are. Intellectual property is a bundle of legal rights. These consist essentially of patents, trademarks, copyrights and trade secrets. Patents are directed primarily to objects of manufacture (things), methods of making or doing something, designs (ornamental aspects of a thing), compositions of matter and plants. If you make devices or compositions of matter, you will likely want to determine whether your device, composition, or methodologies associated with your business may be subject to patent protection. If you make an object, you may also want to consider whether there are any ornamental aspects of your object that may be new and subject to design patent protection.
- If you use trademarks, service marks or logos in connection with the sale of your goods or services, you may want to register those marks or logos nationally or internationally. If your business involves training or educational services, any materials used may be subject to copyright protection. If your business has been successful by using particular strategies or processes that have given it a competitive edge over your competition, you may want to properly identify those strategies as trade secrets. Some methodologies used in manufacturing may be better suited to trade secret protection rather than patent protection.
- Determine whether your intellectual property can be protected
- Once you have identified what you believe to be your intellectual property, you need to determine whether it is protectable under current laws. If you believe your new widget is patentable, a patentability search and assessment is a logical next step. A patentability search and assessment will provide you with the information you need to determine whether there is any meaningful patent protection available to you. This applies to objects, as well as methods, compositions of matter, and designs. A proper patentability search will search all relevant patent records and provide you with the most pertinent documentation of the state of the relevant art. A patent professional can assist with interpreting the search results to determine the scope of patent protection likely available to your invention.
- Similarly, with a trademark or logo, an availability search and assessment is a prudent next step. This involves searching relevant records to provide you with current uses of the same or similar marks or logos. From this information, you can determine whether to proceed with a trademark or service mark registration. A trademark professional can help you make that determination.
- Protect What Intellectual Property You Can
- Once you have identified and determined what rights are available to you, you can proceed with protecting your intellectual property to maximize your competitive advantage. Patentable aspects of any objects, methods, compositions or designs should be protected. Marks or logos available for use and registration should be the subject of US or international trademark or service mark applications.
- Copyrighted materials should be marked with the “©” or “Copyright” followed by the year(s) in which the material was created and name of the owner. Trade secrets, properly identified, should be protected through a series of procedures identified by your organization to ensure confidentiality. This may include, by example, limiting access to certain information, marking documents as “confidential”, ensuring all employees understand their obligations to maintain secrecy of proprietary information, executing confidentiality agreements with third parties where proprietary information may be exchanged.
Protecting your innovative developments is critical to any organization. Having the right person to help you make that decision is important. The Law Office of Kathleen Lynch PLLC is designed to help businesses such as yours keep ahead of the game. The first telephone consultation is free. Email us at kl****@*****aw.com.
by Kathleen Lynch | Jan 14, 2015 | Entrepreneurship, Patent Prosecution, Start Up Considerations
Recently, one of my clients asked me about the pros and cons of marking “patent pending” on his invention. I advised him that I thought he should mark his invention and here’s why.
First, it puts others on notice that you intend to protect your invention with a patent. That means that if the patent covering your product issues, then others will need to assess whether they infringe your patent, if they use, make, sell, or offer for sale the product as described in the issued patent.
Second, while marking “patent pending” has no legal effect, when and if the patent issues, display of the patent number does impact your legal rights. Failure to mark your invention, once a patent issues, will prevent you from collecting damages until you either begin marking or you give actual notice of patent infringement.
Third, if you are putting others on notice that your product may be patentable, that may be advantageous when talking to investors or potential licensees. If your product becomes protected via a patent, then you have exclusive rights to exploit your patent for a period of 20 years from the date of filing. This may be a significant business advantage depending on the area of technology and existing business environment.
Finally, patent marking can be done either physically on the product itself or virtually. Virtual marking requires a website where information on patented products for your organization can be found. This saves in retooling time and expense. In addition, changes to the website can be done quickly and easily to maintain a complete and accurate record of all patents covered by your company.
Protecting your innovative developments is critical to any organization. Having the right person to help you make that decision is important. The Law Office of Kathleen Lynch PLLC is designed to help businesses such as yours keep ahead of the game. The first telephone consultation is free. Email us at kl****@*****aw.com.
by Kathleen Lynch | Aug 4, 2014 | Entrepreneurship, Start Up Considerations, Trademark Service Mark
Many of my clients come in thinking that as long as they have a corporate name, they are free to use that name for advertising and marketing purposes. Sadly, they are mistaken.
The corporate name granted by the Secretary of State’s office is only given for use as a business name. The criteria for granting the name is based on whether the exact name is already in use. That name is for use as a business name, for tax and regulation purposes, and not a clearance for marketing and advertising use.
In order to use a name or logo for marketing and advertising, any company should conduct a full search and assessment as to the availability and use of their name and/or logo. A search involves looking at all uses of a name and/or logo. The search results are assessed to determined whether that name or logo would be available for use. In other words, the results are reviewed to determine if there are any other uses of the same or similar names or logos that may result in trademark infringement or an allegation of infringement.
Any business that intends to spend money on advertising or marketing of its goods or services should conduct a search and assessment as to the availability of a mark or logo. In addition, if a business intends to expand beyond its state boundaries, it should consider federal registration of its mark.
Making sure your trademark or service mark is available for use is considered a best business practice designed to leverage what you consider a valuable critical asset. Having the right person to help you make that decision is critical. The Law Office of Kathleen Lynch is designed to help businesses such as yours keep ahead of the game. The first telephone consultation is free. Email us at kl****@*****aw.com.
