On this day in 1983 patent #4,498,586 was issued to Carmela Vitale for a simple invention that earned her the endearment of pizza lovers everywhere. It was called the "Package Saver" and the patent abstract says it best: "A temperature resistant molded plastic device is described for use in boxes or packages such as pizza boxes where there is a tendency of large cover portions to sag downwardly to damage the soft pizza or other packaged products. In use, the saver is positioned near the center of the package to support the box cover for protecting the contents." Remember the times when you would pick up your pizza order to bring home only to find the bottom of the carton lid having sagged down to the top of the pizza by the time you got home? Then one day you got home, opened the pizza box, and there it was, the "Package Saver" protecting your pizza and you think "Why didn't I think of that?". In life many times it is the simple and clever things that holds our admiration. Certainly the "Package Saver" would fit into that category.
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In this day in 1948, patent # 2,435,720 issued to Edwin Land for a special type of camera called the Polaroid. These cameras peaked in popularity during the 70s as they had this magical ability to print your photo within a minute or so of taking the picture. With the current crop of digital cameras we see the image immediately after taking the picture. Not so with traditional film cameras back in the 70s. You would insert a roll of film into the camera that would typically record 24 or 36 pictures. Since film was not cheap you would wait until the roll was completely "exposed" before removing the roll and sending it in to be developed and prints made. So depending upon how often you took pictures it could be months before your roll was developed and printed. Many a times receiving your prints was pretty exciting because you would find pictures that you had take but forgotten about. Well Edwin Land's Polaroid camera solved that problem with a special film the size of a print that not only reacted with light but also contained the necessary chemicals to develop itself. So you would take a picture, the Polaroid camera would eject the film/print, you would wait 60 seconds or so, and finally peel off the cover and see your recently taken picture in all of its glory without having to wait weeks or months. This was instant gratification 70s style and to me as a child borderline magical. Polaroid Corporation is no more having fallen victim to digital photography but for those of us in my generation the memories are sweet.
Jennifer Major, an IP Specialist at Sullivan & Worcester, wrote this article analyzing the recent (1/22/2013) grant by the USPTO to Apple of a service mark on the principle register for the look and layout of an Apple store. According to Ms. Major Microsoft is also looking to trademark the look and layout of their store as well. A trade or service mark is a mark that identifies to the consumer the source of the mark. Even when I am in an unfamiliar shopping location I can easily spot an Apple store just by looking through the glass and seeing that simple arrangement of tables displaying products. So read the article and if your customers have come to associate your clever presentation of your goods or services to you then perhaps you too should follow Apple's footsteps and protect how that presentation is made. There are different strategies a patent holder can use against an infringer. Normally some sort of "cease and desist" letter is sent out and after some level of negotiations the parties come to terms and life goes on. However if the patent holder cannot come to terms with the infringer then the patent holder, with advice of counsel, must decide upon a legal strategy. Possible legal strategies include taking the matter to a State or Federal court. Increasingly a number of patent holders are taking the matter to the U.S. International Trade Commission (ITC). Thomas Martin, a patent attorney with Baker Botts, wrote this excellent, but legally technical, article on some of the advantages and disadvantages of taking a matter to the ITC. If you are a patent holder and your patent is being infringed upon take the time to read this article. It is not very long and if you have any questions don't hesitate to give me a call. In this article, Edwin Komen Esq., reviews the 10th Circuit decision in the case of Blehm v. Jacobs. Blehm had a stick figure called "Penman" and Jacobs had a stick figure called "Jake". The two stick figures are shown here with Penman on the left and Jake on the right. Blehm sued Jacobs on the basis that Jacobs had infringed on his copyright of the Penman stick figure. At the district court the Judge ruled in favor of Jacobs on the basis that the Penman figure was not substantive enough of a work to qualify for copyright protection. Blehm appealed the decision. Although the appellate court came to the same result as the district court, a victory for Jacobs, it was for an entirely different reason. Read this article to learn more about how courts will analyze your copyrights.
Question: If I create a company to sell T-Shirts, what is the extent to be able to use likeness of other intellectual property.
Facts: I want to start a company to sell T-Shirts, and I want to use the likeness of things from video games and movies. I see others selling shirts with the likeness or even the characters themselves on the shirt. I want to know, if I were to use the likeness of the IPs, where is the breaking point? Where is it copyright infringement. Answer: Intellectual Property covers the application of laws to the fields of patents, trademarks, copyrights, and trade secrets. I will cover each field as it applies to the images you use on your t-shirts. Patents A patent is an exclusive right given to an inventor to exclude others, in this country, in the sale or manufacture of the idea covered by the claims in the patent. The public policy behind patents is to encourage inventors to innovate by granting them the exclusive right to exclude others in return for their disclosure of the idea to the public who can then build upon the idea to create new innovations. For an invention to be patentable it has to be (i) useful, (ii) novel, and (iii) not obvious. The lifespan of a patent is 20 years from the date it is filed. Here you will not be able to receive protection for your images by the use of a patent because the images on your t-shirts will not be considered “useful”. The USPTO considers an invention useful if it has some utility and images are not considered to have any utility. There does exist a class of patents called “Design Patents” which does protect ornamental features of a useful product. You could argue that the t-shirt is useful, provides cover and warmth, thus satisfying the first test. However the USPTO will likely find that your images are not novel and that the idea of putting images on t-shirts is obvious. Thus it is unlikely that the USPTO will grant you a Design Patent on your images. The plus side of this is that the likelihood of you being sued for patent infringement is unlikely as your competitors will not be able to protect their images with a patent. In summary, patent laws are just not applicable here. Trademark Many people think of logos that identify a company when considering trademarks. However that is just one a small part of the laws regarding trademarks. The Aspen outline on Intellectual Property describes trademarks as follows: “Trademarks permit consumers to identify the source of goods or services. The purpose of trademark law is to ensure that consumers are able to rely on marks in exercising their purchasing preferences by prohibiting competitors from using marks in a way that confuses consumers about the source, sponsorship, or affiliation of goods or services.”. So the public policy behind trademarks is to protect the consumer so if the consumer sees a car with the famous BMW logo on it they will know that the source of the car is BMW and not Ford. Here you have not described any of the images you are using other than that they will be like characters and images used by other companies. If you sell a t-shirt with an image of the BMW logo and consumers, when looking at the shirt, believe that the shirt is an authentic BMW t-shirt then you have infringed on the BMW trademark. Likewise with characters. You sell a shirt with an image of Snow White on it that leads people to believe that it is the same Snow White made famous by Disney then you have infringed on Disney’s Snow White trademark. Trademark law has additional complexities in that some marks are “Famous” marks, marks are registered in certain “classes”, and marks can have national, state, and/or local scope. However I have given you some basic information to go by. In summary trademark law does apply to your case. If you places images on your t-shirts that suggest to the consumer that the source of the t-shirt is a company other than yours you are likely infringing on someone’s trademark. Penalties include significant fines. The advantage you have on your side is that you are a small fish in a big pond. My recommendation is to remember the golden rule. After all you would not want someone to use a hot selling mark that you created would you? Copyright A copyright is automatically granted to the creator of certain original works of authorship. The “work” must be a substantial expression of an idea placed onto some tangible medium. The public policy behind copyrights is to allow the owner of the copyright to control who can copy their original work of authorship. Copyright differs from trademarks a couple ways. First is that the purpose of trademark law is to protect the consumer while copyright law protects the author. Second is that while a trademark can protects slogans and logos a copyright will only apply to “substantial” works such as poems, books, photographs, and such. There are however some similarities between the two areas of law. You do not need to register your mark or copyright to obtain the provided protections, you get them automatically (note that by registering your mark or copyright will get you expanded rights). Also they have to be “tangible”. That is they have to be on some reproducible medium such as paper or in a computer file. There are some exceptions but I will exclude the exceptions here so as not to confuse the discussion. Here you have stated that you will use images that are like other images. If the images are similar than you possibly have violated someone’s copyright. It is best to talk to a IP attorney but a good test is to show your images to others along with the image that served as your creative source. If the people you show your images to do not see any similarities then it is likely that you are not violating any copyrights. If your images have no creative source other than your mind then it is also likely you are not violating any copyrights. Copyright law does apply to your case here. Since you state that your images will be like other images it is likely that you will be violating someone’s copyright. Penalties include significant fines. The advantage you have on your side is that you are a small fish in a big pond. Again, my recommendation is to remember the golden rule. After all you would not want someone to offer for sale a hot selling image that you created would you? Question: If I developed a website and was never paid, do I own the website code or does my client because the code is hosted on his server? Facts: I am a freelance web developer who designed and coded a website which is hosted on my client's server and under his domain name. Several months after completing the website, I still have not been paid. The client claims that he will be able to pay me in about a month. I have access to the server, and wrote the code entirely myself. Do I have the right to take down the code, given that I wrote it and have not been paid? Does the code belong to me in the first place? And does it matter that the text "Copyright" was included on the footer of all the pages? Answer: There are two areas of law that are raised by your facts. First are laws related to copyrights and second are laws related to contracts. I will apply the facts you have provided to each set of laws. Copyright Law A copyright is automatically granted to the creator of certain original works of authorship. The “work” must be a substantial expression of an idea placed onto some tangible medium. The code you have written is substantial because the code required to support a website usually takes many pages when printed. The code you have written is also an expression of an idea because the website is the idea and to express the website you need commands to control the placement of images, text, buttons, and the such. Finally it is tangible because the software code is stored in files that can be copied or printed. Thus the author of software code has the right to exclude others from copying the code. When is this right granted? It is granted to the programmer as soon as the work is completed. Moreover the code does not have to be labeled with a copyright notice for the right to be granted. In summary, and only applying copyright law to the facts, the code is yours and you have the right to exclude others from copying it. You can exclude your client from copying the code so if you were to take down your code and your client restores the code from a backup that would be a copyright violation. Recommendation: I would recommend that you first speak with a copyright attorney and provide him/her with all of the facts in this matter. I would think that the attorney would have you register your code with the US Copyright office as that will give you additional rights and protections and that you also place a copyright notice at the top of each file. At this time there does not seem to be a copyright violation as you, the owner of the copyright, copied your code to the server. Contract Law A contract is an agreement between two or more parties where there has been a “meeting of the minds” and each party has given something in exchange for a benefit. A “meeting of the minds” is a legal phrase that means all of the parties understand the agreement and its terms. Here you were to give your time and skill to create a website in return for money and your client was to give his/her money in return for a website. Since the “exchange” has not occurred when it was expected to occur we say that the contract has been breached. When a contract has been breached you can seek remedies. A contract for services, such as what you are performing here, does not have to be in writing to be enforceable. In your facts you made no mention of a contract. I assume then that the contract was simple - you provide the code and your client provides the hardware and the money to pay you. A more complex contract would also transfer the copyright to the client by a license or outright assignment. Assuming a simple contract that does not include the transfer of your copyright to the client the copyright still belongs to you, the creator. In summary the client has breached the contract by not paying you for your services. You can seek a court order for full payment of your services. You can also seek a court order to have the client remove your software code from their server. Recommendation: Again, I would recommend that you first speak with a business attorney and provide him/her with all of the facts in this matter. I would think that the attorney would recommend that you use the small claims courts in your state if the amount of money you are seeking from your client is within the limits of small claims court. I would also think that the attorney would not recommend that you take down the website due to lack of payment without a court order. That could land you into trouble. If you have a question you would like to have me answer feel free to submit the question on the Contact Me page. |
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