Create, Consult, Control
News & commentary on intellectual property issues.
Oct312009 | Steve O'Donnell
Architecture Copyrights
There are two distinct types of copyright protection that architects should obtain for their designs to protect their intellectual property.
The first is copyright in the blueprints themselves under 17 U.S.C. §102(a)(5). This registration will protect the plans, but curiously, won’t prevent someone from taking the plans and using them to construct a building.
The second route is to register the plans as an “architectural work” under 17 U.S.C. §102(a)(8). This can prevent the construction of a building but likely won’t prevent a client from altering the building.
Registration of the copyrights is rather inexpensive, especially when compared to the benefits they confer. There is no reason why an architect should choose to not secure their copyrights.
Of course, an architect is free to contract for additional rights or transfer any rights to a client if there is some need for that.
Feel free to Contact me to schedule a review of your contracts and intellectual property protection needs.
Photo licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license.
Oct282009 | Steve O'Donnell
Importance of a Registered Trademark to an Overall Branding Strategy
Do you need to protect your business identity with a registered trademark? That depends on how angry you’ll be if someone else starts using your business name or identifying logos.
For example, imagine that I started selling cans of my Open Source Chili under the brand name “Steve’s Chili” at a local market, and further imagine that the labels on the cans had a unique graphic that made them stand out from other canned foods. How angry am I going to be if I find out that someone else has started selling a “Steve’s Chili” in another state? Will I be angrier if I also discover that they’re using a similar design on their labels? What if I was using a more unique name, would I be angrier if someone else started using it?
What if instead of selling cans of chili I open a restaurant. In that case, I might not care at all if someone across the country uses the same name for their restaurant, but I might care if someone copies the unique graphic I had designed for my signage.
If I was the first to use “Steve’s Chili” as a trademark, even if I don’t register it, I will likely have superior rights to someone else using the same mark, at least in the area where I’m doing business. If I have no plans to grow beyond where I’m already established I might not care if someone a few states away uses the same mark and I might not bother to register a trademark.
A good test is to imagine that a year after you open, someone two states over starts a similar business with the same or similar name and using the same or similar graphics. If that makes a vein pop out of your forehead, you should contact a trademark attorney. If that possibility doesn’t really matter to you or if you’re not doing business across state lines, maybe you don’t need a federal trademark, in which case you should still contact a trademark attorney to discuss the possibility of a state trademark. Even without registration you have certain rights to your trademark, but registration has a number of important advantages you should talk over with your attorney.
If you're not willing to protect your brand, there isn't much point of trying to build one.
Oct232009 | Steve O'Donnell
Benefits of a Registered Trademark
It’s often said that trademark rights come from the use of the trademark, and while that is true, there are strong incentives to registering your trademark.
If a trademark is registered there is constructive notice nationwide of the existence of the mark, meaning that if someone starts using the same or confusingly similar mark, they won’t be able to claim ignorance of the registration. It also gives the owner priority across the nation to use the mark, so even if the owner is only using the mark in one area of the country, the owner’s rights extend nationwide so the business can expand without concern that the mark is already in use somewhere else.
It’s evidence of ownership of the mark. Issues of ownership often come up when businesses come apart and a departing party claims ownership of a mark. Another area where this comes up is bands. The names “Pink Floyd” and “The Talking Heads” have been the subject of such problems when ownership of the name isn’t entirely clear.
The owner of a registered mark is able to bring an infringement action in federal court and may be awarded triple damages, profits, costs and attorney fees.
If a mark is registered in the US, that registration can be used as the basis for obtaining registration in other countries.
The registration may be filed with US Customs to prevent the importation of goods bearing an infringing mark.
A trademark is an intangible asset of the business’ balance sheet and can be sold, transferred, etc, like other property.
Once a trademark is registered, the ® symbol can be used to indicate to others that the mark is registered and that the owner will defend it.
Five years after registration the mark may be made incontestable, meaning that certainly aspects of the registration cannot be attacked by third parties. Generally, an incontestable trademark is immune to attacks that it is invalid or should not have been registered. Incontestability is not absolute, the mark can still be at risk if fraud was used to obtain it or if it has become a generic term.
One advantage that many don’t consider is that by registering a trademark you’ve essentially cleared it, meaning that the trademark office has looked at similar marks and determined that your mark is not deceptively close to someone else’s. It is still possible that a court might disagree, but obtaining registration is as certain as you can get that you won’t have any problems going forward with your business name or mark.
Ideally, you should speak with a trademark attorney when deciding on the name for your business so that he can check if there is already a business using that name. In reality, that doesn’t usually happen unless the principals of the new business have been burned by a trademark problem in the past. Similarly, you should have your trademark attorney check before you begin using a logo or other way of marking your business identity. Failing to do so can be an expensive problem to fix.
Oct032009 | Steve O'Donnell
Hey dude, don't fear TI. Take a calculator and make it better
For the geeks that came before me, it was the slide rule; for those that came after me it's probably a Linux tablet; but for those around my age, it was the graphing calculator (specifically the TI-81). It was something you could carry like a badge of your geekiness, warning others that they'd probably work for you at some point. Now, Texas Instruments is threatening the programmable calculator geek elite in what appears to be a rather poorly thought out legal and business strategy.
What does a true fan of, well, anything, do with the subject of their fandom? They deconstruct and reconstruct it. Think of it, if you really love music, you make your own, if you really love a show you might write fan fiction or analyze the canon to death. If you really love technology, you tweak it and make it better. So it's no surprise that a group of programmable calculator enthusiasts have taken it on themselves to modify their calculators.
Of course, nothing worth doing is easy, and installing a homebrew OS on a calculator is worth doing, so of course, there have to be hoops. The main hoop is that the Texas Instruments calculators check the signature of software before allowing it to load on the hardware. In order to find the private keys that could be used to unlock the hardware, the public keys were analyzed via distributed computing. Once the key was discovered, the hardware could be unlocked and calculator owners would install their own operating systems.
One might think this would make TI happy. After all, between notebooks, netbooks, tablets and iPhones, I'd think that the market for programmable calculators was not as big as it once was. Of course no one asked my opinion.
TI has instead decided to fire off cease and desist letters under the theory that the anti-circumvention provisions of the Digital Millennium Copyright Act give TI the power to force the suppression of the keys. I think TI, or more appropriately, TI's attorneys are reading even more into the DMCA than there already is and there are some problems that TI would encounter if they tried to assert their claims in court.
First, the DMCA, among other things, prohibits circumvention of technological measures put in place to prevent copying files as well as the distribution of circumvention tools. But, the operating system and boot code on the calculators is not encrypted, so no circumvention is needed to get to it. Second, the DMCA explicitly allows people to reverse engineer code in order to achieve interoperability with other software, such as a homebrew OS. Lastly, there needs to be some nexus between the actions and copyright infringement in order for the DMCA to attach. In this instance, the calculator homebrewers weren't distributing TI's copyrighted code, but were installing their own operating system on their own calculators, so there is no copyright infringement.
Why is TI challenging these homebrewers? I can't say. I don't understand it. I would think that the possibility of selling some more calculators would be more attractive than threatening their remaining customers. Now, I must admit, even though I don't think TI would have much chance in court, that doesn't make it so; the courts have not (yet) ceded ultimate authority to me. But even if TI does have the legal ability to shut down homebrewers I fail to see how they can benefit from threatening their customers.
Photo licensed under the Creative Commons Attribution ShareAlike 3.0 License.
Sorry about the post title.
1
Recent Posts
- A City Authentic
- Does downloading really hurt DVD sales?
- What happens to patents when a company closes.
- Bilski didn’t change much except my dinner plans
- When the "little guy's" copyright is infringed
- Is there a better way to police a trademark?
- Chick-Fil-A only wants you to eat more chicken.
- What I learned at the 2010 Launch Music Conference
- You probably don't want a provisional patent application
- Avoiding Trademark issues when naming your band
Comments
Post has no comments.