Your Trademark Registration May Not Mean You Have Trademark Rights

In the United States, trademark rights belong to the first user of a distinctive trademark in commerce.  These are known as common law trademark rights.  A trademark registration with the United States Patent and Trademark Office (USPTO) is not required.  That said, there are benefits to registering a trademark with the USPTO.  A federal trademark registration affords many benefits, among them is what is known as nationwide priority.  Put simply, a common law trademark affords the trademark owner with rights only in the geographic locations in which the trademark was used (along with offering/providing the underlying goods or services).  A federal trademark registration, on the other hand, affords the trademark owner with nationwide rights, regardless of use in a particular geographic location.  However, there is a caveat.  If a common law trademark owner’s rights predate a federal trademark registrant’s rights in a geographic location, a concurrent use issue may arise.  As you can imagine, this can create headaches given today’s Internet economy.  Nonetheless, this is an example of a situation where the owner of a federal trademark registration may have prior rights in most, but not all, geographic locations in the United States.  How the parties peacefully coexist, if at all, is commonly the impetus for dispute, including litigation.

Here are some trademark tips should you find yourself subject to a concurrent use proceeding or other dispute involving geographical limitations on usage of a trademark:

1. It is important for trademark owners to perform trademark clearance searches prior to commencing use of a trademark in hopes of identifying such common law trademark owners.
2. Despite the United States being a first to use jurisdiction for the establishment of trademark rights, you should file for federal trademark protection as soon as possible in order to avail yourself of nationwide priority.  Keep in mind that one may file an intent to use trademark application with the USPTO, meaning you can apply to register a mark before actual use so long as you have a bona fide intent to use that mark (with proof of the same).
3. In the event of a dispute, priority of use versus priority of application for registration should be analyzed.
4. Recognize that concurrent use agreements can allow peaceful co-existence between competing trademark owners, though they must be properly tailored to account for necessary terms and conditions.
5. A state trademark registration provides little, if any, benefit beyond that afforded under common law.  If you wish to register your trademark, always consider federal trademark registration with the USPTO.

So, remember, just because you own a federal trademark registration does not necessarily mean you have prior trademark rights or ultimate exclusivity of rights to your trademark.  If you find yourself needing trademark advice with respect to trademark searches, trademark registration or a trademark dispute (especially one involving common law priority issues), you can contact a trademark attorney for assistance.

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What is a Provisional Patent Application?

A provisional patent application is a patent filing with the U.S. Patent and Trademark Office (USPTO) that allows you to obtain an effective filing date in a later filed non-provisional patent application, without triggering the start of the patent term (patent term begins on the filing date of a non-provisional patent application).  This is particularly important now that the U.S. has adopted a first to file, instead of first to invent, patent filing system.  Even though a provisional patent application never issues into a patent, it typically provides a quicker and cheaper way to obtain an effective filing date with the USPTO.  Provisional patent applications also allow the term “Patent Pending” to be applied in connection with the description and marketing of an invention.

 

Within 12 months from the date the provisional patent application is filed, a non-provisional patent application must be filed in order to claim priority from the filed provisional patent application and the benefit of the earlier filing date.  However, the non-provisional patent application can only claim priority to subject matter that was originally disclosed in the provisional patent application, not new subject matter introduced in the non-provisional patent application.  As a result, it is critically important that the provisional application describes the invention as fully and completely as required in a non-provisional patent application filing.  An informal or poorly drafted provisional patent application will provide very little (if any) benefit.

 

By filing a provisional patent application, you can establish priority rights to your invention with the USPTO and allow yourself up to 12 months to continue working/improving on the invention and generating any additional versions.  As you make any advances or improvements to your invention, you may consider filing additional provisional patent applications to cover the new subject matter.  Multiple provisional patent applications can be filed within 12 months of the first provisional patent application and one non-provisional patent application can claim priority back to each of the filed provisional patent applications.  Thus, all the versions and aspects of your invention can be bundled together into one non-provisional patent application.

 

For more information regarding filing provisional patent applications with the USPTO, see http://ift.tt/2e2W3G1.

 

The patent attorneys at Traverse Legal can help you draft and file provisional patent applications that fully describe your invention.  Traverse Legal’s patent attorneys will work with you to develop a patent filing strategy that best serves your business and intellectual property goals.  Give us a call today at 866-936-7447 for a free consultation regarding your patent needs.

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Trade Secret Protection

What is a trade secret?  Do I (or my company) own any trade secrets?  If so, how do I enforce my trade secrets?  In order to answer these questions, it is very important to understand the Defend Trade Secrets Act of 2016 (DTSA) and its various protections and obligations.  The DTSA creates a federal cause of action for trade secret misappropriation that mainly mirrors most state law under the Uniform Trade Secrets Act.  An owner of a trade secret that is being misappropriated may bring an action under the DTSA if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.

 

According to the DTSA, the term “trade secret” refers to all forms and types of information if:

• the owner has taken reasonable measures to keep such information secret; and
• the information derives independent economic value (actual or potential), from not being generally known to, and not being readily ascertainable through proper means by another person who can obtain economic value from the disclosure or use of the information.

 

The DTSA also specifically defines what is meant by the term “misappropriation” of a trade secret and provides examples of what constitutes “improper means” to acquire knowledge of the trade secret.  In order to understand these terms and effectively navigate through the DTSA, it is essential to work with an experienced trade secret law attorney.

 

There are several responses that you and your company should be thinking about in light of the DTSA.  First, you should update all of your employment and non-disclosure agreements to incorporate the appropriate provisions from the DTSA, such as those pertaining to whistleblower immunity.  Second, you should determine what information (if any) could be considered a trade secret.  Third, you should evaluate the protections in place to maintain the confidentiality of those trade secrets.  Lastly, you should develop a course of action for the potential misappropriate of your trade secrets.

 

Let Traverse Legal’s experienced trade secret attorneys guide you through the Defend Trade Secrets Act and assist you with identifying, protecting, and enforcing your trade secrets and other intellectual property.  Give us a call today at 866-936-7447 for a free consultation regarding your trade secret needs.

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Accused of Cybersquatting

I Have Been Wrongly Accused of Cybersquatting

A trademark bully is someone with trademark rights who seeks to use the Anticybersquatting Consumer Protection Act (ACPA) or Uniform Domain Name Dispute Resolution Policy (UDRP) in order to force you to transfer your domain name to their control in order to avoid arbitration or litigation. Sometimes, trademark owners greatly overstate their rights in your domain name in order to force a transfer without paying fair market value for the domain.

If you have been wrongly accused of trademark cybersquatting under the ACPA pr UDRP, we have a cybersquatting defense attorney who can help you understand your options and the costs associated with each.

Defenses to a cybersquatting claim under the ACPA:

1. A domain registrant who registers a domain name before the third party obtained trademark rights, common law trademark or registered trademark rights, may have a defense based on priority of time. It is impossible for you to have registered your domain with a bad faith intent to profit if, in fact, you registered the domain prior to the third party having trademark rights in the first instance. These are complicated issues which require assessment by a cybersquatting attorney.
2. A third party does not have the trademark rights which they allege or their trademark infringement allegation is otherwise weak. A good trademark attorney can help assess the allegations of domain name cybersquatting being made against you in order to understand whether the claim of a trademark right is weak, strong or nonexistent.
3. You were unaware of any third party trademark rights when you registered, used, or trafficked in the domain, and the third party trademark was not a registered trademark with the USPTO. There was no constructive notice of the trademark registration and you had no reasonable way of knowing that the trademark right holder existed.
4. The alleged trademark is generic in that it is a dictionary word or other word which describes the service or product. There is no such thing as a generic trademark. If a word generic, there can be no trademark rights.
5. The trademark is descriptive of the goods and services and therefore extremely weak. Weak trademarks obtain weak protection under trademark law and cybersquatting law.
6. You have a legitimate business purpose for the domain having nothing to do with the third party trademark claim. A legitimate business purpose can be a business plan or web implementation which shows that you did not register, use or traffic in the domain name in order to profit off of the third party trademark rights.
7. You did not register, use or traffic in the domain name with a bad faith intent to profit. In fact, the domain name has no commercial benefit to you at all, and therefore it is not making or seeking to make any money.

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Contact Class Action

Contact One of Our Class Action Attorneys

We represent people like you from across the United States and from countries worldwide in class action cases. We are complex litigation attorneys who understand how to protect your rights. Contact Us Today By Filling Out The “No Risk” Form to the right.

MEDIA INQUIRIES – Click here.

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Necessary UAV Contracts for Professional Drone Services and Businesses

Our team of UAS drone attorneys and industry specialist at the law firm of Traverse Legal, PLC provide essential UAV contracts and documents that are necessary for your professional drone business. We offer several contracts, agreements, manuals and intellectual property projection for both pilots and drone businesses. If you provide commercial drone services, you need industry specific contracts and documents; and we can provide you with those drone contracts and documents.

Consider our “OPs In A Box” – This legal document package includes several key contracts, agreements and manuals that every professional drone operator should have, along with necessary training videos and future upgraded versions over the next 12 months from the date of your purchase. Some of these documents include:

• sUAS Services Contract
• Notice of UAV Operations
• Pilot Contractor Agreement
• Copyright Assignment Forms
• Part 107 Operation Manual
• Mission Briefing Form

Note that we also provide these documents ala carte. For more information about OPs in a Box or other drone contracts, click here.

Some other available documents that we can prepare on your behalf include (but is not limited to):

• Single Member LLC
• Web Site Language
• Non-Compete Agreements
• Copyright Registration
• Custom Contract Drafting

If you have more questions, click here or feel free to give us a call.

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Bill Proposes Copyrights in Small Claims Court

A new Bill has been introduced in Congress to set up a small claims system for processing copyright claims. This small claims alternative would be a substitute to Federal Court litigation for copyright claims which at the moment, aside from sending cease and desist letters and DMCA takedown demands, is the only remedy for copyright violations. A Federal Court remedy is obviously a costly one and not available to many copyright holders given the time and expense in processing copyright violations in Federal Court. Under the Bill, there would be limited discovery available in small claims and the copyright small claims cases would be decided by experienced copyright lawyers appointed by the Copyright Office. Potentially, many of the smaller claims including those for copyright infringement for online photographs, as well as DMCA abuses, are being discussed as primary disputes that would be designed to be processed in the copyright small claims court. Essentially, there would be no remedy for a willful infringement and you would forego the statutory maximums for a willful infringement claims, however, the process would be less costly and streamlined for the processing of copyright violation claims.

There is a commentary that exists indicating that the U.K. has adopted a small claims copyright violation system which is evidently thriving and has had good reviews from many commentators.

There are those who are opposed to this Bill and have indicated that it is likely a small claims copyright infringement court in the United States would be abused by what those who are known as copyright trolls. These are individuals or companies who are infamous for mass filings for copyright violations regarding the download of copyrighted content, particularly pornographic videos.

There is little detail available at this time concerning the small claim process itself based upon the Bill that was introduced but there will be significant discussions concerning the pros and cons of copyright small claims in the near term, which is bound to be beneficial for copyright holders in the end.

For more information about your copyrights and copyright protection, contact one of our copyright attorneys.

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