The oral argument schedule for the Supreme Court over the next few months is heavy on intellectual property cases.
The Court will hear oral argument as follows: on February 26, in two cases on granting (Octane Fitness) and reviewing (Highmark) attorneys’ fee awards; on March 31, in a case (Alice Corp.) on patent eligibility of system and computer-implemented method claims; on April 21, in a case (POM Wonderful) on claims under Section 43 of the Lanham Act challenging labels regulated by the Food and Drug Administration; on April 22, in a case (Aereo) on whether a provider of broadcast television programming over the Internet violates a copyright owner’s public performance right; on April 28, in a case (Nautilus) on the proper standard for finding indefiniteness invalidity for patents; and on April 30, in a case (Limelight) on joint liability for method claim infringement where all of the claimed steps are performed but not by a single entity.
The USPTO will perform maintenance on the Electronic System for Trademarks Trials and Appeals (ESTTA) and the Trademark Trial and Appeal Board Inquiry System (TTABVUE) beginning at 12:01 a.m. and ending at 6 a.m., Saturday, February 15. ESTTA, and TTABVUE will be unavailable during the maintenance period.
Additionally, the USPTO will perform system maintenance on the Trademark Electronic Application System International (TEASi) beginning at noon on Saturday, February 15 and ending at noon on Sunday, February 16. TEASi will be unavailable during the maintenance period.
Ten years ago, back in 2004, an interesting and somewhat unexpected story surfaced about Microsoft’s intellectual property portfolio. A man by the name of Rich Tanenbaum, who is the founder of Savvysoft, had been told by Microsoft to stop using the name TurboExcel for his own software. This in and of itself would not have been much of a story except for the fact that this news item exposed the almost incredible fact that Microsoft did not have a federally registered trademark in the United States on the name Excel.
Every company, no matter how large or small, has valuable intellectual property that can be protected. Frequently, however, many companies choose not to take the steps necessary to protect this intellectual property, which leaves the property vulnerable, weak or perhaps even non-existent in time. Generally, however, it is the so-called “Little Guy” that leaves the door open for the larger, IP sophisticated companies. This story demonstrated that even giant corporations can have intellectual property lapses. Apple has also had similarly famous lapses with respect to various “i” products, such as the iBook, which they had to acquire from a company that already had the rights to use that name commercially.
Is there anything one can do to stop competitors, large or small, from using your trade name even if you do not have a federally registered trademark? The answer is yes, although it is certainly far and away preferable to have a federally registered trademark.
You have probably had circumstances when you have positively associated with a certain trademark. Perhaps you were traveling and had the option to eat at one of several restaurants. You might have preferred a sit-down meal, but you might have opted for McDonald’s or Burger King instead because you are familiar with what you will get, know it is going to be reasonably priced and within a certain window of acceptable. This “positive association” made you pick the known over the unknown, which may have been far better, but could have been far worse and more expensive.
A trademark is a significant asset. A trademark not only becomes your company seal, but it is how consumers will relate to your goods or services. If you have high quality goods and services for a reasonable price then customers will associate your company with positive feelings and memories, so the next time they see your trademark they will conjure up in their minds a whole host of positives. This conjuring up of positive feelings, emotions and memories of satisfaction can be powerful.
If you are like me, when you travel via car over the Interstate Highway System you might have some personal favorite places to stop. I, for example, love Dunkin Donuts coffee. So if I am in the mood for a shot of caffeine I approach those blue service signs on the highway hoping to spot the Dunkin Donuts logo. If I do then I get off the exit and in search of a large (or extra-large) coffee with cream and sugar. What helps me find Dunkin Donuts, or any number of other establishments while on the road, is a familiar logo and practically all of those logos are trademarked.
The Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO), the Office for Harmonization in the Internal Market(Trademarks and Designs) (OHIM), the State Administration for Industry and Commerce (SAIC) and the United States Patent and Trademark Office (USPTO), (hereinafter referred to as the “Partners”) held the 2013 TM5 Annual Meeting in Seoul, Republic of Korea on 5-6 December 2013.
The World Intellectual Property Organization (WIPO) was present as an observer, as it had been at the previous TM5 meeting. In addition, representatives of various user associations participated in the open session of the meeting. That session was productive and useful.
During the Meeting, the Partners exchanged views and information on practices and programs, as well as on common projects aiming at promoting cooperation and collaboration among the Partners and contributing to increasingly user-friendly trademark systems.
On December 12, 2013, Members of the House and Senate introduced bipartisan legislation that would allow the United States or any state or local government to register official insignia for federal trademark protection. Congressmen Hakeem Jeffries (NY-8) and Ted Poe (TX-2) introduced H.R. 3713 in the House and Senators Amy Klobuchar (MN), Charles Schumer (NY) and Mike Lee (UT) introduced identical companion legislation in the Senate.
“As a nation of laws, the protection of our trademark statutes should extend to the United States government and other official entities throughout the country,” said Rep. Hakeem Jeffries. “We cherish the American flag in our hearts, but it should also be respected by the law. This legislation will accomplish that objective by extending trademark protection to the flag as well as other official insignia of this country and the unique states that make up our republic.”
This bill would amend the Trademark Act of 1946, also known as the Lanham Act, to allow the Federal government as well as all State and local governments to register with the U.S. Patent and Trademark Office (PTO) marks consisting of their flag, coat of arms and other official seals.
In this series, we are looking at how to create strong design patents and to use them to protect your business. In the first three articles, we looked at The Power of the Broken Line to protect the shape of your product, The Power of Color to protect your graphical images, and The Power of Portfolio to build a wall of protection around your product. In this article we are looking at the “The Power of Policing Trademarks and Design Patents”.
“Policing” means actively searching for people copying your product and enforcing both your trademarks and design patents against them. Patents and trademarks don’t stop copying. If you are successful, you will be copied. They do allow you, however, to shut down counterfeiters fast. We’ve expanded the scope of our discussion to include trademarks since trademarks are your first line of defense to stop “on-line” counterfeiting. The on-line shopping sites like Amazon, eBay and Aliexpress respect them and will remove knock off listings. Design patents come into play when the counterfeiting gets serious and you need to stop bulk importers of knockoffs.
Our case study of how a small growing company can use trademarks in combination with design patents to effectively stop knockoffs will be Olloclip®, a very popular 3-in-1 iPhone camera lens attachment.
How to Write a Patent Application is a must own for patent attorneys, patent agents and law students alike. A crucial hands-on resource that walks you through every aspect of preparing and filing a patent application, from working with an inventor to patent searches, preparing the patent application, drafting claims and more.
Without hesitation I recommend One Simple Idea and think it should be required reading for any motivated inventor. There is so much to like about the book and so much that I think author Stephen Key nails dead on accurate. The book is educational, information and inspirational. For the $14 cover price it is essential reading.
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