This may be a stretch of the imagination, but marijuana may get a trademark. Stranger things could happen in the world of trademark law.

This is an interesting story and one that may cause a chuckle or two, but, in the long run, may make its mark on the U.S. as a first. Some enterprising pot growers tried trademark their crop recently and were almost successful. The trademark application was actually for something called Tartukan death weed. Sounds attractive, right? Like someone would want to go right out any buy it and give it a whirl.

This application was almost successful for one major reason – on April 1,2010 (not an auspicious day to do this, given it is April Fool’s Day) the U.S. Patent and Trademark Office started offering a new category for medical marijuana trademarks. The category wasn’t open long, but it was definitely no joke, despite the hilarity the Tartukan trademark application engendered. Said the trademark gurus; “We noticed that since the state law dealing with medical marijuana was introduced, there may be questions, etc. about whether or not trademark applications for this could establish lawful use relating to interstate commerce.”

Interstate commerce? As in taking medical marijuana across state lines? It’s a delicate subject. Nonetheless, despite various reservations and concerns about trade marking medical marijuana and any services related to it, this has not stopped Oakland’s Harborside Health Center from making their company name a trademark and also striving to trademark their logo.

Trademarking a health center is one thing; trademarking a specific brand of pot isn’t a good idea, because brands of pot aren’t reliable enough to trademark. Their quality, origin, reliability and potency, among other things, tends to go up in smoke, and there is no surefire scientific method to confirm a certain patch is a certain strain.

Well, the long and short of this story is that if other scientists can patent genes that alter the food we eat, maybe marijuana growers should chase down that avenue and ask about patenting plant hybrids instead.

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.

It had to happen; trademark violation in the donut-making industry. Franchisee loses right to make Krispy Kreme donuts.

Krispy Kreme (KK) went to court to stop a franchisee from operating their New York Penn Station booth and another location. This case took place in a federal court and resulted in a preliminary injunction being granted to KK because the franchisee (Satellite Donuts) was lagging behind on their financial obligations, and were in contravention of the Lanham Act.

Evidently, Satellite Donuts was infringing on KK’s trademarks, continuing to run their business without authorization and “diluting” KK’s trademarks by making lousy donuts. Satellite had actually filed for Chapter 11 bankruptcy, which meant they had an automatic stay. However, the bankruptcy court altered the stay to allow KK to request their injunction in federal court.

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.

This sad saga began in 2008, when Satellite signed a franchise agreement for Penn Station and in 2009 also signed an agreement for a location in Baldwin, NY. When 2010 rolled around, KK sent a demand letter to Satellite pointing out they had failed to pay $310,046 as their part of the franchise agreement(s). Satellite said they could find another party to invest in their business. KK wasn’t impressed and sent a cease and desist letter along with notification their franchise had been terminated.

KK then sued and got a temporary restraining order that let KK get a quality control person at both locations. At the same time, the court ordered Satellite to smarten up and live up to the quality control standards in the agreements they signed. Satellite felt they had been denied the chance to fix their errors; that KK had inflated the debt and didn’t let them bring in a new investor. The court didn’t agree with that argument, stating KK had proven it would suffer irreparable harm if they didn’t get an injunction.

The key to the decision in this case is the judge’s dictum that said; “When in the licensing context unlawful use and consumer confusion have been demonstrated, a finding of irreparable harm is automatic.”

Cases like this can go either way, and if you are faced with a similar situation, your best bet is to discuss your case with a skilled lawyer who handles trademark and copyright law. It’s an area that many people don’t understand, and consequently wind up walking on the wrong side of the law – either intentionally or unintentionally. Either way, the original owner of the trademark has vested rights and if someone infringes on them, they are well within those rights to sue.

hings couldn’t possibly get any stranger than a naked cowboy suing for trademark infringement.

“This is quite the case,” said David Alden Erikson, a Los Angeles business litigation attorney. “A naked cowboy, who sings and plays guitar for a living in Times Square, is suing what he considers to be a cheap imitation of himself – a naked cowgirl.” While this isn’t as big a patent and trademark case as NTP v. Apple-Google, it is important, as the Naked Cowgirl is accused of devaluing a well recognized brand and icon; one that has been in Times Square every day for the last 10 years.

The Naked Cowboy, better known when he has his clothes on as Robert Burck, insists the Naked Cowgirl should be paying him a franchise fee for wearing “his” proprietary grab – albeit in different anatomical locations. What is his proprietary clothing? It turns out to be a uniform of sorts, although only vaguely, as a pair of underwear is really just a pair of underwear. Or is it? Some attorney saw it as more than just undies, and now has Burck as his client.

The decision that needs to be made in this case will deal with whether or not Robert Burck owns the trademark to “naked.” And furthermore, does he also own the trademark to “cowboy?” The cowboy makes his living standing in Times Square, naked but for a pair of undies and his guitar and hat, singing for money. Does that mean he owns trademark to street guitar playing? What about this case might say there is something here that is devilishly creative and unusual and different that distinguishes his trademark?

“At the risk of sounding slightly amazed, which I have to admit I am,” Erikson said, smiling, “this case will offer the courts a whole new challenge in trying to deal with those who want to trademark any activity they do in public while in their underwear.”

Needless to say, the outcome of this case, which will no doubt achieve infamy of some sort or another, will be very interesting. Will it make it to court? Only time will tell, but try to remember that the issue of trademark infringement is a serious one and there are laws in place to prevent it from happening. Whether or not there are laws in place to deal with the Naked Cowboy’s latest endeavor – getting married by the Reverend Naked Cowboy in Times Square for a starting price of $499 – well, that’s another story.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

Trademarks differentiate one company from another. As such, it’s important they are not diluted.

There are quite a number of different forms of intellectual property protected by law. “You may immediately recognize this form – the trademark,” said David Alden Erikson, a Los Angeles business litigation attorney. “A trademark may be a logo, phrase or even a word. Overall, the reason for using a trademark is to that the consumer is able to tell the difference between one company or entity and another. While in theory that works just fine, in actual practice, there are times when a trademark becomes diluted, meaning the distinction between one trademark and another is not clear and distinct.”

Trademarks are registered because they are intended to represent or be the “face” of an entity or a company. Think Nike and their “swoosh.” It’s vital that their trademark be different from all other trademarks. If somebody creates a similar trademark, it could be a rip-off, and could cause trademark dilution. “Dilution of a trademark happens in many different ways, like tarnishing, blurring and genericization. There are other ways to do this, but you get the general idea,” Erikson said. “Most jurisdictions these days, and that includes the U.S., have laws to prevent this kind of thing from happening. Of course, it does anyway, but there are guidelines and rules established to protect trademarks.”

The law, as it relates to diluting a trademark, was designed to address two issues. The first one deals with consumer protection. What that boils down to is that when a customer buys a trademarked item, they do so because they identify with the trademark. When they buy by trademark, say a pair of Nikes, the consumer is also identifying with the company that owns the mark or the business the mark represents.

“What’s important to note here is that the trademark isn’t just some form of representation, it is closely tied with and into corporate responsibility when it comes to quality. For example, Louis Vuitton luggage has their trademark on all products. It stands for attention to detail, classy presentation, quiet elegance and clean and simple design,” Erikson said.

“If you have done any shopping at stores that have a reputation for selling knock-offs, you’ve likely seen and perhaps even purchased a Louis Vuitton knockoff purse. If you take the time to examine it carefully, you’d notice things like the traditional Louis Vuitton trademark is slightly blurred, that the stitching isn’t quite as detailed and precise or that the zipper pull isn’t precisely the same kind or quality as the original. This is done by other companies who want to confuse consumers by getting them to think they’re getting an original at a cheap price,” Erikson said.

For those original designers and manufacturers who feel they have been ripped off by a company specializing in knockoffs, it’s time to talk to a Los Angeles business litigation attorney about defending the trademark. After all, there are laws in place to protect original creations.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

Many business owners don’t realize there is a difference between a trademark and a trade name.

Despite the fact that many business entrepreneurs know their stuff inside out, many of them still get hung up on the difference between a trademark and a trade name. “The trademark is considered to be a branding tool and it will identify ‘their’ goods and services as being uniquely theirs – thus distinguishing ‘their’ goods and services from others in the marketplace,” clarified David Alden Erikson, a Los Angeles business litigation attorney.

On the other hand, a trade name is a business name, and it’s normally registered with the Secretary of State where the business is incorporated. The name basically identifies the business for the purpose of incorporation. “The thing to remember here is that just because you may successfully register a trade mark, does not mean you have additional trademark protection. The truth is that there a quite a number of trade names filed that conflict with existing trademarks, which means if they are used as marks they may result in a lawsuit for trademark infringement,” summarized Erikson.

“When a business registers a mark related to a ‘service’ and not a product, it is generally called a service mark. But, just to throw a spanner into the works, a service mark (legally speaking) is the exact same thing as a trademark. Thus, you have the leeway to trademark a company name, slogan, logo, product name or some other symbol that may be associated with what you offer to consumers. By the way, you may want to combine any of these categories (say a slogan with a company name) and call that your trademark,” Erikson advised.

The origins of trademark law are rather interesting. They came about as a companion to the unfair competition law – something that protects businesses against the unscrupulous doings of other companies. “Trademarks are also related to intellectual property rights, copyrights and patents. For a further explanation, I’d recommend you talk to a Los Angeles business litigation attorney,” suggested Erikson. Federal patent and copyright protection is in place to protect a business from other people copying their ideas. Trademark protection is in place to protect consumers from copying a businesses’ ideas.

“If you want a strong mark that will hold up in just about any situation, then give me a call. We’ll talk and I will walk you through what you need to do to accomplish your goals,” added Erikson.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

In a world of acronyms gone mad there is now flogging to wrap one’s head around. Flog is a fake blog.

Who hasn’t landed on a fake blog style website at one time or another? The problem is, not everyone knows they’ve landed on a flog. Typically, a flog deals with false advertising and unproven claims with fake testimonials. “It’s the latest way to scam money from unsuspecting surfers. Why is this important to know? It’s important to know because this practice is just beginning and lawyers need to be in a position to provide advice to advertisers and consumers about these sites,” explained David Alden Erikson, a Los Angeles Internet law attorney.

“When advising an advertiser, I’d tell them that flogs may leave them open to both civil and/or criminal liability according to federal advertising laws and FTC rules. Yes, truth in advertising, honest and legit testimonials, etc., may reduce liability for false ads, but it’s important people ‘know’ their boundaries and save themselves a potentially expensive lawsuit,” commented Erikson.

As for consumers, if they are sucked in and buy goods or services from a flog, they need to know that they may have a remedy available to them. Any harm done to a consumer may mean they can file a lawsuit. “This area of the law is so new, it is literally developing as you are reading this news release,” Erikson observed. One thing is for sure, the FTC is working on ways to protect consumers from these schemes and scams.

The biggest risk with many of these flogs are the claims made on them enticing someone to take a significant financial or legal risk. “It’s hard to not want to spend money on something if you think that the celebrity endorsement you just read is legitimate and the product claims sound reasonable,” he added.

For those companies who want and intend to run an honest business online, they need to talk to an attorney familiar with Internet law to find out how to use testimonials, why they need proper disclosures and what things to avoid if they don’t want to get slapped with a false advertising lawsuit or investigated by the FTC.

“Without over simplifying things here when it comes to flogs,” said Erikson, “it’s important to remember one simple rule to do business by, and that is always remember that truth in advertising is crucial and must come before all else,” he reiterated.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

Thanks to modern technology, knockoffs or counterfeits are made fast. Fast may also mean defective and deadly.

Over the last ten years the world marketplace has expanded exponentially to meet the ever increasing demands of consumers worldwide. With more efficient communications, better software and technology, sophisticated equipment and greater investment in the manufacturing sector, global trade has exploded. Did you know that the Department of Homeland Security revealed that 81 percent of all counterfeits in the U.S. come from mainland China?

Most people think that the increase in availability of various goods is – well, a good thing – totally ignoring the reality that some of those goods may be counterfeit knockoffs. While the knockoffs may very well be less expensive than the originals, they are not as well made as the originals (that’s why people pay big bucks for the original in the first place.) Not worried about that? You should be, because making counterfeit items is not only illegal, it is an incredibly dangerous risk for people who buy those products later. This relates to defective products.

Generally speaking, most manufacturers do a good job of quality control for their goods. If something does get messed up, a recall will totally tank that company’s reputation and affect their sales. One only had to look at recent baby accessory recalls to know that is true. That aside, one thing is brutally clear when it comes to bootleggers or counterfeiters, most of them have no clue (nor care) what the technical niceties are when it comes to making various goods.

They don’t know how to make sure seams don’t rip, that zippers work, that baby toys won’t choke a baby or how to keep the dyes from leaching out of fake leather goods. In short, their only concern is getting something out on the market as fast as possible that looks OK and is cheap. Looking OK and cheap is one thing; whether or not that product works, will last or won’t harm someone is another can of worms entirely.

Knockoffs are not just clothing, shoes, handbags and jewelry. They can and do include things like exploding fake Zippo lighters, fake diabetic strips that may not give accurate readings and fake power cords, power strips and night-lights that may fail. While those may be the smaller things in life, there is more bad news. The latest media reports include stories about how fake/counterfeit computer components from China are winding up in US ships and warplanes. Gives one pause for thought, doesn’t it?

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.

No one really has a clear definition of what art is. That is because it changes all the time.

You may have noticed that sculpture downtown in the middle of the rotunda at your local city hall. At least you “think” it’s a sculpture, but then again, it might also be a bike rack. That’s the prevailing problem with art – what is it? This is actually a question that has been argued in many courts across the nation, and frankly, no one is even close to being able to define what art really is and they may never be.

The reason for that? It changes all the time. One year the “in” thing may be pictures of soda cans in a back alley depicting the angst of modern society and their throwaway habits – and this will be considered to be art. The next year, and honestly sometimes even the next month, those same soda cans become passé and the newest hot item is something that passes for finger painting done on steel panels. Go figure. Nonetheless, someone somewhere may find their “art” being knocked off and the battle may be on in the form of a lawsuit.

When defending the rights of the creator of the “art,” the main issue is what belongs to whom, and let’s also not forget who actually owns the “art.” While most would say the creator of the art is the owner, are they really? They don’t have anything appropriated to their work once it’s not in the studio.

Then, there is the often contentious issue of the relationship the artist has with the gallery. The artist is the worker who produces the work, but the gallery also has ownership rights to the work because they represent the artist. Often they get a whopping 50% cut of the final sale price for the work because they promoted it, showed it and raved about it and that got the artist and the work noticed.

Ownership changes hands through sale of the work, or does it? That’s the multi-million dollar question and one that poses an endless conundrum for those with a philosophical bent. It also poses some interesting questions in legal cases as well.

Here is an example of the problem of legality and ownership issues. Have you heard about Associated Press (AP) suing Shephard Fairey? They sued him over the Obama Hope posters that he artistically interpreted. Problem is that AP says his posters amount to copyright infringement because he mass produced a photo originally owned by AP without their permission. Fairey didn’t use the exact photo, he artistically interpreted it.

Fairey’s portrait version of the original image was based on a photo taken in April 2006 by AP photographer Mannie Garcia. AP kicked up a stink and in reply Fairey sued for a declaratory judgment that his poster, despite its origin, was “fair use” of the original photo. This is just one example of the kinds of issues that are floating around in the world of art law with the underlying confusion threaded into the mixture of what happens when you give art a primary holder. Is its meaning, which only the artist seems to know and understand, affected by giving it an owner?

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.

Being in business means dealing with everything that comes up. That includes copyright issues.

“Copyright is almost a four letter word for many in the world of business these days. While it’s something they know they need to deal with, they would rather not. This is largely due to the fact that this particular area of the law is complex, complicated and ultimately, a royal pain to deal with without the help of an attorney with experience in this area,” commented David Alden Erikson, a Los Angeles business litigation attorney with extensive background in this area of the law.

“To sum it up, copyright protects authorship of original works and that includes artwork, music and the written word, not to mention intellectual property. But, for now, I’m only going to deal with copyright to try and simplify things,” added Erikson.

Copyright actually protects more than just published works – meaning things you may read, write, etc. – it is applicable to “things” put out there in the public domain, such as exhibited, performed or made accessible by the Internet. This is where any similarities between countries ends. Every country has its own copyright laws. “If you don’t know what laws apply in your country (area), make tracks to talk to a lawyer with experience in this area. Better to be safe than find yourself being sued for violation of copyright,” Erikson remarked.

“Think copyright doesn’t apply to you because you don’t dabble in the creative arts? Think again, and then go take a look at your website copy, brochure copy and your flyers. All of those materials are affected by copyright,” explained Erikson. “You hopefully wouldn’t ‘borrow’ someone else’s copy from their site and call it your own, and you sure wouldn’t want someone pinching copy off your website either. If someone did swipe your copy without your express permission or giving you credit, this breach may result in a lawsuit,” he added.

What if the website owner did not write the copy for the site, but had someone do it for them? In a case like that, the copyright would still vest in the business. This is due to the fact that the owner would hold the copyright under “work for hire.” Work for hire is a section in the copyright act that covers situations like this where the copy is written by another person.

“While you might not develop an appreciation for the finer points of copyright law and copyright infringement, you really should have a passing acquaintance with the general highlights. Put another way, you’d likely want to know what to do if someone stole your copy and vice versa, should you make the same mistake,” suggested Erikson, a Los Angeles business litigation attorney. “If you find that copyright is about as clear as mud, give me a call for a more in-depth explanation,” he offered.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

The US Supreme Court has said the NFL can’t avoid antitrust laws when dealing with team jerseys.

“The last place one would expect to find the US Supreme Court is on the football field, but there they are, dealing with the sale of NFL team jerseys and hats. It was actually an interesting case and may well set precedent for the future,” remarked David Alden Erikson, a Los Angeles business litigation attorney.

The core nugget of the case decision was that the National Football League isn’t exempt from antitrust laws relating to the sale of team jerseys and hats. The decision said the NFL could be sued by someone who formerly supplied the NFL with clothing who alleged the NFL participated in “illegal restraint of trade” because they gave an exclusive licensing agreement to one company for their 32 teams.

At first, it looked like the case may have been lost at a federal appeals court when they ruled the 32 teams were acting as a single entity in offering a licensing agreement. That meant the league as a whole was then protected from restraint of trade accusations. The supplier, American Needle, took their case to the Supreme Court because they did not agree with the Chicago Federal Court ruling.

“As it turns out, that was a smart tactical move, as the Supreme Court reversed the lower court by indicating that the teams don’t just compete on the field. Indeed, they compete when it comes to dealing with trademark issues and with intellectual property. Put another way, every team has/is a source of a valuable trademark, as they are not all the same,” explained Erikson.

“So the bottom line here is that the initial idea by the NFL to license their 32 separate trademarks in a collective manner to just one person ultimately took away the independence of each team’s decision making and quashed any actual or potential competition,” Erikson clarified.

This case is also interesting for the fact that it is the first time a private plaintiff won an antitrust case since 1992. Having said that, this isn’t over yet because the case has now been shuttled back down to the lower courts to take a look at whether the NFL acting collectively to create jerseys, hats, and other items complies with antitrust laws. The NFL may still pull a goal out of this situation.

What we can say for sure here is that the NFL isn’t granted immunity, but they do ultimately get a chance to present an argument saying that the anticompetitive benefits of joint licensing outweigh anticompetitive harms.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.