2011 February | David Erikson

Archive for February, 2011

Knowing the Distinction Between a Trade and Service Mark is Essential in Business Says Los Angeles Business Lawyer

Sunday, February 20th, 2011

Knowing what is what in the business world when it comes to trade and service marks helps a business move forward.

“It’s often helpful if people understand the differences between trade and service marks when they’re running a business. A trademark is protection you get for any device, symbol, name or word that’s original and new. The trademark says the product is protected by trademark law and is the property of the mark owner. An example would be the Nike ‘swoosh’ mark, which everyone recognizes,” said David Alden Erikson, a Los Angeles business litigation attorney. Mr. Erikson specializes in Los Angeles fashion law, Internet law, business litigation, trademark and copyright law.

Although the word “trademark” is most often used to refer to any kind of protected mark, in reality, it is only the mark itself that sets it apart from others and distinguishes from that mark from others. There are actually several types of protective marks that may be applied for and each may have its own area of protection.

“Service marks are like trademarks, but the act to protect and distinguish only services. You may have seen a registered service mark before and not realized what it is or meant. It will look like this: ‘®’,” Erikson said.

The main reason why there are the two marks is that while a company name is a registered trademark, that trademark does not protect the services that company offers. An example would be a writer registering their company name as SpiritualPen, their trade name, and their unique style of expression would be their service mark. Generally speaking, trade names can only get protection if there is a service or trademark registered.

“There are other protected marks that you may consider in the course of your business. That would include a certification mark that protects seals of approval and goods from specific sources. Another mark is the collective mark, usually used for goods made collectively by a group of people/owners. In other words, the group would use one company name and a collective mark for their branding and to protect their work,” Erikson said. This is not an exhaustive list of all the various marks that could be used to enhance a business, as there is also trade dress and product configuration.

The simplest thing to do when starting a business is to figure out what protection is needed for the brand and services, then call a skilled Los Angeles trademark and copyright lawyer. It is one call that will make a world of difference on how a business is run successfully. The ultimate goal is to cover all the bases legally and know protection is in place. Better safe now than sorry later if something is missed along the way.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com.

Tags: Los Angeles business litigation, Los Angeles fashion law, Los Angeles Internet law
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Look Alike Knockoffs Now Becoming Familiar in Perfume Industry Says Los Angeles Fashion Lawyer

Monday, February 14th, 2011

The fashion industry has long been plagued with look-alike knockoffs. Now, they face smell-alike perfumes.

Less than ethical individuals in business who wish to make a quick buck by selling perfume smell-alikes will find an almost instant market. Consumers do not much care about whether the scent of a perfume is dead on and a classy brand name if they can get a reasonable facsimile for a fraction of the cost. Hence, knockoffs are very real threat to the perfume industry because their pockets are being picked by cheap smell-alikes.

“How is it possible to make a perfume smell-alike when perfume has such a singularly subjective appeal to people based on the notes in the original? Perfumes have three notes: the top, middle and bottom note. The top gives the user the first impression, the middle note comes to life when the top note begins to wear off and the bottom note, which emerges last, is the base scent that carries the whole perfume,” said David Alden Erikson, a Los Angeles business litigation attorney. Mr. Erikson specializes in Los Angeles fashion law, Internet law, business litigation, trademark and copyright law.

The notes will last for different periods of time on everyone, as each person’s skin will handle the scents differently. What that means is the very uniqueness of perfume is based on unpredictable, in tangible elements and are virtually impossible to trademark. While the making of the perfume is fairly straightforward, the various combinations to make the scent the right signature is tricky.

“The thing is, once the perfume has been made, it is easy to make a copy. Furthermore, the smell-alikes don’t even have to use the same ingredients to get a similar scent. The stink in the perfume industry is that the copycats don’t invest millions in research and development or branding. All they need to do is have the original chemically analyzed, toss some similar ingredients together and bingo, they are in business,” Erikson said.

The bottom line is that perfume makers are losing money to unethical upstarts who are reverse engineering their original products and cutting into their profits. It is not just the scents being copied; it is the colors, packaging and bottle shapes being borrowed and subtly changed to skirt the law.

“Speaking of the law, unfortunately, it’s not illegal to make or sell smell-alikes. This relates to the fact that making perfume is done with technical knowledge and mixing chemicals properly and this is not considered to be a tangible form of expression, hence there is no copyright protection,” Erikson said. What do countries do to get on top of this illegal trade? They usually deal with it though trademark infringement or unfair advertising.

“When referring to trademark infringement, we are referring to the packaging, as fragrance can’t be trademarked,” Erikson said. “Instead, the focus is on how the perfume is packaged, as in trade dress and the elements that make it distinctive, such as bottle shape, color, applicator, etc. These are trademarks.”

The law in this area is constantly changing and mutating to try and deal with issues like this, but still, perfume companies are having trouble protecting their market. It will be interesting to watch many of the more recent cases filed in this area, to get an idea of what the courts will do to get a handle on this issue.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com.

Tags: Los Angeles business litigation, Los Angeles fashion law, Los Angeles Internet law
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Copyright Protection is Yours the Minute You Create It

Monday, February 14th, 2011

Without getting too confusing and technical, there are several searches that may be made to check for copyright infringement of a work or picture. You can do your own searches or have a Los Angeles copyright and trademark lawyer do them. There are trademark searches to find out if a potential new mark is already registered and patent searches to see if an invention is really new and capable of being patented.

Back to the copyright searches. Copyright protection is Johnny-on-the-spot when it is first created. In fact, just about anything with some component of creativity gets copyright protection – restaurant menu designs, website designs, etc. However, federal registration for copyright is another can of worms entirely. They are easily searched because the government has a complete list.

But it is virtually impossible to discover all non-registered and copyrighted images. In other words, if someone does not register his or her copyrighted material, it will not be found on a search. You can imagine the potential for infringement. If you have written or created a brochure, file it and forget about it, no one will ever know you did it, even though you had copyright protection from the minute it was created.

While this may seem like a huge legal problem, you should know that copyright infringement typically needs proof of access to the original work and evidence of copying. No access, no copying, no infringement. It is like you playing around with a design for a work shed for your yard. That design may look just like one another guy in another town is trying to draw. That does not mean you copied it, because you did not have access to it.

This is why copyright searches are viewed as being dangerous, because to search is to access information. What if you did perform a search for non-registered copyright images and registered copyrighted images and happened to find something very similar to your shed design? You have now accessed a similar work. If you build your shed and use ideas from the work you found, you may well be infringing on another’s copyright. Put another way, even if you do a search, it does not avoid the infringement issue.

Thus, if you did copy your work shed design from a work, it follows you would know about that other work and you would not need to do a search. If you did not copy your design from something else, you will risk becoming informed of something similar by doing a search. Once you have done that, you are at risk to be sued for copyright infringement.

Confused? Join the crowd. Copyright law is convoluted and does not get much easier. Really, to get a good grasp on what you need to know, talk to a Los Angeles copyright and trademark lawyer. It is time well spent and may save you a lawsuit.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Tags: Los Angeles business litigation, Los Angeles fashion law, Los Angeles Internet law
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Intellectual Property Rights Are Your Key to Business Profitability

Tuesday, February 1st, 2011

Most people do not really care about intellectual property. It is only those who have a direct investment in something that ultimately makes them money that are concerned.

It goes without saying that large companies these days have an enormous amount of intellectual property behind them. It is what made them the success there are today. The most valuable thing for any company, but the larger ones in particular, is their brand and IP value. This leads to an interesting question. How much more do you think a company would be valued at if they actually invested more in IP registration and identification? It is food for thought.

For those major players on the block in the corporate world, such as BMW or Coke, they have gone to the trouble to clearly identify, maintain and keep their IP rights secure. It is obvious these efforts have played a big part in their successes as well. IP rights affect their operations, their appeal to current and potential investors, the ability to choose certain partnerships and increase the business value for a merger or sale.

What is the attraction here? What is more important than fixed assets? The answer is information. Information is more valuable now than actual physical property. Information has the added benefit of being a highly tradable asset when it is protected by IP laws, etc. This is what increases the value of a company and this is why you need to have even a passing knowledge of how IP works and why you need to make sure it is legally protected.

Still in the dark? Here are some of the areas you may create IP in, beginning with trade secrets. Trade secrets protect proprietary information, such as what is in the Coke formula, how do they run their company and what systems do they have that makes them successfully competitive? IP also comes in the form of trademarks that protect parts of your general brand. E.g. names, pictures and slogans.

Copyright is a very big part of IP and acts to protect things like recordings, pictures, books, documents and videos. There are of course exceptions to every rule and if you do not understand how IP works, then it is usually best to discuss your concerns with a competent Los Angeles trademark and copyright lawyer. You may also want to ask about inventions, processes and types of ideas, an area that deal with industrial designs and patents. It is a big and confusing world out there and knowledge is power for your business.

Where do you start? The first thing to do is identify what you currently have for IP in your company. If you are not certain how to do that or what to do and what classifies as IP, make that call to an experienced Los Angeles trademark and copyright lawyer and find out. Once you know what you have, the next step is tracking and managing it and registering it. While that may sound simple, it is not always that easy to do. That is why a good IP lawyer is worth their weight in gold, not to mention the fact that with the right legal advice, your business will be worth its weight in gold.