Law Office of Joshua A. Burt

Archive for the ‘Intellectual Property’ Category

Cease and Desist Letters – Ignore at Your Own Risk

 

In my last blog post, we discussed the risks involved in using the trademarks and copyrighted works of others on your website and how to avoid infringement.  But, what happens if you have already gotten yourself in trouble and are hit with the dreaded cease and desist letter?  Whatever you do, do not ignore the letter and do not panic.

The fastest way to get sued for infringement is to simply ignore a cease and desist letter.  You are already on their radar screen; it’s not just going to go away.  Worse yet, if you keep using the trademark or the copyrighted work, you are now on notice and could be held liable for willful infringement and the punitive damages that come with that finding.

Also, it is important that you have an attorney contact the other side.  If you say too much, it could be used against you later on in a lawsuit.

The first thing you should do is contact an attorney immediately.  The lawyer should then contact the other side and acknowledge receiving the letter and that a response will be forthcoming.

When your attorney contacts them early on to discuss the letter, you may be able to negotiate a settlement with little or no payment to the other side.  You may even be able to negotiate a license to continue using the trademark or copyrighted work.

The next step is to get a written opinion from your attorney.  The attorney will analyze the validity of the other side’s trademark(s) and/or copyright(s) and tell you whether they have any rights and to what extent, if any, you have violated those rights.  The opinion will also include a plan for how to approach the other side and to resolve the dispute in a cost effective and timely manner.

Often times, these matters settle quickly and without any lawsuit if handled correctly.  Sometimes, litigation is necessary, either when the sides cannot agree on the price for the infringement or whether there is any infringement in the first place.

The bottom line is: to decrease the risk of an expensive lawsuit, you should contact a competent intellectual property attorney rights away and address the problem head on.

The Law Office of Joshua A. Burt is very experienced in handling complicated copyright and trademark infringement matters.  Contact the firm to discuss your particular intellectual property concerns and to set up a free consultation.

Disclaimer: The above post should not be considered and does not constitute legal advice. You should not rely on any of this advice because each case is fact specific and could be subject to different local, state, and federal laws.  No attorney-client relationship exists based on this post.

Copyright and Trademark Perils of Websites

 

One of the first questions someone might have when they are building a website is: Am I violating someone else’s copyrights or trademarks when I publish the website content? If it isn’t one of the first things you are thinking about, it should be.  You can infringe someone else’s intellectual property rights without doing so knowingly.

Copyright infringement is the act of violating someone else’s rights covered by the United States Copyright Act.  There are six major categories of rights that a copyright owner has.  These rights are the rights to (1) reproduce the copyrighted work; (2) adapt the work (also known as making a derivative); (3) distribute the work to the public; (4) perform the work (such as a literary, musical, dramatic, motion picture or similar work); (5) display the work (such as literary, pictorial, graphic, sculptural or similar works); and (6) broadcast the work (such as radio or load-speaker transmissions of music).

Each of these rights could be violated if you use the copyrighted work or an adaptation of that work on your website or if you post in on a third party website.

The easiest way to infringe someone else’s rights is to simply cut-and-paste content (such as text or images) or codes from another website without permission. This could spell disaster.  If you are not sure whether you have the rights to post someone else’s content or whether that content is copyright protected, you need to consult an attorney before posting it.

Trademark infringement is the act of using a word, phrase, logo or sound that is confusingly similar to an existing trademark and for similar goods or services.  To infringe a trademark, there doesn’t have to be actual evidence that customers were confused.

If you are going to refer to a trademark you do not own, you must be very careful and only do so in an appropriate manner. You must make sure that there is no way anyone would confuse your business as the same or related to another business.  This goes to the heart of trademark infringement.

If you are using the trademark to refer to products you are selling through a store (online or brick-and-mortar), you can also use that trademark to identify or describe the items you are selling. This is called nominative fair use.  You can only use the trademark if it is reasonably required to identify or describe the goods or services you are selling.  If you can reasonably identify the goods or services without using the trademark, you need to avoid using the trademark.

This is especially the case with logos. If you can identify the goods and services without using the logo (i.e., spelling out the word rather than including the stylized logo – think of Dell’s logo with the offset “E”), you must only use the word mark and not the logo.  This is almost always the case.

The best way to protect yourself from an infringement lawsuit is to obtain the written permission from the owner of the copyright or trademark before publishing that content on the website.  If you are concerned about infringing a copyright or trademark, you should obtain the advice of a competent intellectual property lawyer.

The Law Office of Joshua A. Burt is very experienced in handling complicated internet legal, copyright infringement and trademark infringement matters.  Contact the firm to discuss your particular intellectual property concerns and to set up a free consultation.

Disclaimer: The above post should not be considered and does not constitute legal advice. You should not rely on any of this advice because each case is fact specific and could be subject to different local, state, and federal laws. No attorney-client relationship exists based on this post.


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