In trademark law, marks are placed along a continuum of distinctiveness. If a mark is classified as not being inherently distinct, the mark must acquire distinctiveness in consumers’ minds to achieve trademark status. That acquired distinctiveness is called a “secondary meaning.” Secondary meaning is a new and additional meaning that attaches to a mark. […]
Widerman Malek Law Blog
Trademark Dilution: Blurring v. Tarnishment
The Federal Trademark Dilution Act (“FTDA”), embodied in Section 43(c)(1) of the Lanham Act, provides that famous marks are eligible for federal protection when a third party’s use of the mark dilutes the famous mark’s distinctiveness, even in the absence of competition, likelihood of confusion, mistake, or deception. Protection against dilution does not exist […]
Show Me the Royalties!
For songwriters, one of the greatest perks of copyrighting their work is the continuous flow of royalty checks. If Merv Griffin were still alive today he could attest to that. Merv Griffin wrote the recognizable music called “Think” which aired five days a week on the game show Jeopardy during the final jeopardy question. The […]
The Fair Use Doctrine: Does a Parody Qualify?
By: Tyler Hampy As mentioned in my last post, this post will continue the discussion on the fair use doctrine. Specifically, this post will discuss whether parodies of copyrighted works can be considered fair use. To recap, the fair use doctrine permits the legal use of copyrighted material without first acquiring permission from the […]
Can Someone Trademark Your Catchphrase After It Is Cancelled?
Do you remember the ridiculously cheesy LifeCall commercial that first aired in 1989? Perhaps you may be able to recall it better with this famous catchphrase, “Help! I’ve fallen and I can’t get up.” Do you now remember? LifeCall, a medical alert and protection company produced this commercial showing an elderly woman fall within her […]
Introduction to the Fair Use Doctrine
To prove copyright infringement, the plaintiff must show that it owns a valid copyright and must establish that the defendant engaged in the unauthorized copying of the work protected by the copyright. “Copying” refers to the act of infringing any of the exclusive rights that accrue to the owner of a valid copyright […]
Unfair Competition: How does it relate to trademark infringement?
By: Tyler Hampy To begin, what is unfair competition? Although the courts have had little success in defining unfair competition in the abstract, Black’s Law Dictionary defines unfair competition as dishonest or fraudulent rivalry in trade and commerce, specifically, the practice of endeavoring to pass off one’s own goods or products in the market […]
Inequitable Conduct
How do I defend allegations of patent infringement? An attorney may choose to argue that the infringed patent is invalid. However, an alternative strategy may entail a claim of inequitable conduct. A successful claim of inequitable conduct renders a patent unenforceable because the court will exercise its power of equitable discretion not to enforce the […]
We Both Have the Same Business Name. Am I in Trouble?
You started your company four years ago and everything is going well when all of a sudden you are handed a cease and desist letter. The letter informs you that you are using another company’s trademark – their company name. What are you to do? With the world increasingly getting smaller thanks to the internet, […]
Textbook Publishers Sue Boundless Learning for Plagiarism
One of the biggest gripes I had with attending college had to be buying textbooks. Ten years ago when I was in college, textbooks cost around $500 per semester. This was an outrageous cost. Yet, college kids were forced to pay for these books in order to follow along with the teacher’s syllabus. You would […]
