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.

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.

The Design Piracy Prohibition Act stalled in Congress over the last few years. While it’s been around in various forms since 1957, it’s never really seen the light of day.

The whole point of this Act, should it get passed, is to extend intellectual property rights and concepts and related litigation to the world of fashion and design. The Act has been kicking around for some time, but because it evidently has some teeth, it’s been viewed as being controversial and thus put on the back burner, until now.

The latest attempt to stop knock-offs, the stalled Design Piracy Prohibition Act, aims to provide sui generis protection to fashion designers for a period of three years. Sui generis is a Latin expression, meaning of its own kind or unique in its characteristics. Design piracy legislation is already in place in Japan, India and Europe.

The Act would extend protection to “the appearance as a whole of an article of apparel, including its ornamentation,” with ‘apparel’ defined to include men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear; handbags, purses, and tote bags; belts, and eyeglass frames. To get the protection for three years, a designer would have to register with the US Copyright Office within three months of going public with a design.

“Fashion piracy and knock-offs are extremely unfair and economically hurtful for emerging designers. This is because many may see their designs knocked off before their own creations get to stores. While there needs to be a way to stop this, I worry that the legislative approach may have some unintended consequences,” said David Alden Erikson, a Los Angeles fashion law attorney.

With the advent of more and more knock-offs and rip-offs of aspiring designer’s creations, and the subsequent more frequent legal battles this has engendered, this issue has come to the forefront once again. While the general public doesn’t think much about it, other than what they are ultimately paying for an item, designers are quite fed up with being knocked off. It costs them money and prestige.

Currently, fashion only has the protection of copyright if its shape is non-functional enough to be classified as a creative sculpture; or that a design, pattern, or image on the clothes qualifies as pictorial/graphic. The law does offer some protection against counterfeiters, but this only if the trademark defense is used and not when a knock-off is copied under a different label. There is also patent protection of sorts available that only applies to an ornamental design that is new, original and not obvious. The definition for new, original and non-obvious is pretty tough to pin down.

The prevailing opinion is that the “new” law would have the right kind of impact and clout, plus have the potential to drive many small fabric and apparel companies out of business because they don’t have the money to hire a lawyer and fight the bigger firms knocking off their creations. As with many things when it comes to infringement and how to stop it, there are pros and cons, each with valid arguments, but no middle of the road compromise seemingly ready and waiting in the wings. Typically, that would then leave the courts as the referees.

“This is one of the things that worries me,” outlined Erikson, “as this new Act may do little more than create a cottage industry for fashion lawyers who would work on (patent) registrations and on the possible flood of litigation over what counts as original and who started a trend,” he added. This sounds a little like the sitcom, Desperate Housewives – lots of fighting and very little gets resolved, unless revenge counts.

In one corner is the Council of Fashion Designers of America, the face of big-name fashion, and they want the Act to pass. In the other corner is the American Apparel and Footwear Association who isn’t thrilled with the idea, as they feel it will lead to never ending lawsuits between legitimate companies. “Will it come to pass? No one is certain, but there is certainly a lot of lobbying going on to push the Act back into the limelight and make sure it does see the light of day this time,” Erikson commented.

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

For those who missed the latest patent infringement fiasco, Apple is suing HTC over 20 patents. The rivalry is heating up.

“Apple definitely means business in this recently filed lawsuit. In fact, they’re so determined to make a point here that they filed over 700 pages of exhibits in court. That’s not a lawsuit. It’s virtually a book in the making. Listed in the complaint are a variety of named HTC handsets ranging from the Nexus One to Imagio and from Dream/G1 to Droid Eris. It almost reads like a Lord of the Rings sequel,” indicated David Erikson, a Los Angeles trademark infringement attorney.

At the core of this lawsuit sits roughly 20 patents that date from 1995 through February 2010. “That’s a whole lot of ground that’s going to need to be covered, indicating this case may take forever and a day to settle. Or, it might wind up next month. It’s hard to tell with lawsuits like this one,” Erikson added. “From the way the complaints are worded, it’s my best guess that Apple is after Android as the center focus, and not so much HTC itself,” he pointed out.

“What is really interesting is that the older patents tend to focus more on operating system behaviors, which isn’t terribly relevant to HTC’s Android, and Google isn’t mentioned in the lawsuit – yet. But that may come later,” Erikson surmised. So it’s safe to say that the suit is more about Android than about the company who makes them, HTC. This is a bit odd, since Google and HTC were in bed together making the Android dream come alive.

Here is what the complaint filed in court takes aim at: “certain mobile communication devices, including cellular phones and smart phones, including at least phones incorporating the Android Operating System.” While this may sound like a shotgun approach to filing a lawsuit, when the stakes are as high as they tend to be in cases like this, it’s better to aim high.

The complaint filed with the US International Trade Commission (yes, Apple is bringing out the artillery) specifically cites numerous HTC Android phones as the main offending products. The big guns are aimed at HTC, who makes the most Android handsets, but the subtext here is that Google should be on its toes as well.  Remember that Google CEO Eric Schmidt resigned from Apple’s board in 2009.

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

Some lawsuits make one wonder about the people who filed them. Louis Vuitton thinks Hyundai infringed on their trademark during a Super Bowl commercial.

Evidently, Louis Vuitton lacks a sense of humor over the minimal use of their bold and gold trademark on a basketball that appeared for all of about one second in a Super Bowl commercial. Really people, you can’t be serious. The courts these days are already clogged with legitimate and serious lawsuits. This is not a serious or legitimate lawsuit. In fact, it belongs in a sentence with the term frivolous.

“My feeling about it is that this is trademark law going too far. It’s probably true that nobody has suffered more at the hands of trademark infringers than Louis Vuitton, but that doesn’t justify a complete loss of sense of humor,” indicated David Erikson, a Los Angeles fashion law attorney.

Louis Vuitton, which of course is based in Paris, filed this less than substantial lawsuit in a Manhattan court recently and is seeking – if you can believe this – triple damages, punitive damages, a halt to the alleged infringement, and other remedies. All this for a one second or less glimpse of a basketball covered in a pattern of initials that resembled Louis Vuitton’s trademark. If you watch the commercial yourself, you will probably have to play it at least twice before you see what the flap is all about.

“And more importantly, this flap doesn’t justify turning trademark law on its head. The purpose of trademark law is to protect the public against unscrupulous sellers who palm their goods off as made by others, who have earned good will with the public. This commercial is just good fun, and doesn’t confuse anybody,” added Erikson.

While trademark infringement can be serious business, this particular situation hardly fits the bill for either infringement or being serious. Even if over 106 million people saw this controversial ad, they did not immediately jump to the conclusion that Hyundai was infringing on Louis Vuitton’s famous (or infamous) trademark or that Louis Vuitton somehow endorsed Hyundai. “It would be hard to make that very same joke (referring to the basketball), or at least make it as well, without using a reference to the Louis Vuitton logo. By this lawsuit, Louis Vuitton diminishes the public domain of discourse and humor,” Erikson stated.
The commercial was just that, a commercial in good fun. However, the lawsuit papers indicate that Louis Vuitton doesn’t know the meaning of that term, in that they indicate the use of their trademark on a basketball in the Super Bowl commercial by Hyundai “is likely to dilute the distinctiveness and tarnish the reputation of the LVM marks.” Perhaps, with all due respect, someone needs to get a grip on reality here.
Evidently, a spokesperson for Hyundai has not yet made a comment. Not much wonder.

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

The squint test isn’t related to having your eyes tested. It’s an idea that may protect fashion designers.

What on earth does a squint test and fashion design have to do with one another? Good question and one that has one of those kinds of “iffy” answers people love to hate. So what’s the (fashion) scoop here?

It seems the fashion knockoff trade is in high gear and rolling out very close copies of things like Michelle Obama’s inauguration gown. The culprits are Forever 21 and ABS and they’re busy making a lot of money by copying fashion designer’s originals and selling for a much lower price. It’s really easy to do these days thanks to digital cameras and the Internet.

There is usually only a lag time of a few weeks after the original debuts before copies hit the market. “I’ve actually had the opportunity to sue ABS on behalf of the fashion line Libertine. Interesting case, and it highlights what the problem is with the knockoff industry,” said David Erikson, a Los Angeles fashion law attorney.

There are other companies who get involved in rushing things to market, but they’re not strictly copying the original designer. Rather, they are creating clothes “inspired” by the original, which means they’re creating not blatant knockoffs but rather creations that are noticeably different from the original. In the US, both of these activities, the straight knockoff and inspired by designs creations, are legal.

They are legal because US copyright law says that clothing is a useful article, and as such, is not legally protected; not like movies, music and books. “However, this might be a stance heading for a revision if Diane von Furstenberg and the Council of Fashion Designers of America have anything to do with it. The idea? To treat fashion design a bit like other protected areas of intellectual property,” Erikson outlined.

Treating fashion design as intellectual property would protect original designs from copies that are substantially similar. This is the usual standard for other copyright protected creative works. Congress looked at the idea, but didn’t pass the first fashion design Bill because it lumped inspired-by and knockoff makers together.

The Bill is back with more teeth and might make it into law. The new version narrows the ban to “closely and substantially similar” designs; a very big difference from the first Bill. Fashion design law should protect originality but not limit creativity. The idea here then is to allow the inspired by designers and put a halt to the knockoffs.

Here is where the Squint Test kicks in. A proposal outlined in a recent article by C. Scott Hemphill and Jeannie Suk suggests that if a buyer has to squint to see any difference between a copy and the original, then copyright protection needs to kick in at this point. It’s the copycat designers that need to stop ripping off original designs and fooling customers they’re offering an original for less. The test is simple and elegant.

“For years, high-end designers have been pushing for something like copyright protection. The idea never flies, partly because of power and politics, and the fact that people like the price of knockoffs. If we protected fashion design the same way screen plays are protected against those who copy the play too closely, we might be outlawing too much. Chanel shouldn’t have too broad a monopoly,” indicated Erikson. Recent legislation proposed by the designers has acknowledged this by seeking more limited protection than traditional copyright.

A lot of people rather like this basic idea, although knockoff designers ABS and Forever 21 aren’t too enthused about it. The only problem with the proposal might be a practical one. “If the big design houses get anything close to copyright protection, they will push the envelope by bringing lawsuits even against the companies making ‘inspired-by’ pieces. They won’t be chasing just the big knockoff companies either. They’ll go after smaller designers who might want to rip off the latest runway pieces,” outlined David Erikson, a Los Angeles fashion law attorney.

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