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.

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.

The question of privacy online is heating up when it comes to open source work – on developing drugs.

The online world is indeed getting more and more sophisticated, particularly when it comes to using open-source collaborative efforts to develop programs. The most well-known example of that would be Open Office, much the same as MS Word, but users seem to feel it’s easier to use. In addition to that observation, it is also constantly updated, because it’s open source, and it’s free. You can’t beat that as a major motivator to use it.

Over ten years ago, Linux was the first company to drive the revolution to open source technology and now, a drug company is dipping its toes into the open source waters for developing a new drug. GlaxoSmithKline PLC (GSK) is on the cutting edge of what may be the latest in creating new drugs quickly in response to perceived threats to humanity.

Just recently, GSK allowed the public to access the designs for about 13,500 chemical compounds that it feels may inhibit the parasite that causes malaria. The idea here is that by sharing information and partnering with others, scientists may find the right combination faster than if they were trying to do it by themselves.

It’s certainly not too far-fetched to think that everyone who sees the chemical compounds are going to see them they same way GSK scientists do. Often innovation and success comes from pooling the ideas and expertise from others with different approaches. At the moment, two government websites and one private one will act as hosts for the data.

This step forward into sharing what has previously been a deep, dark company secret may open the doors to the creation of drugs that are not owned by a single company. That in itself would be a giant step forward for the global community. Would it mean they would lose money or are we seeing the greening of a global sense of community responsibility for everyone affected by disease?

Interestingly, drug formulas are typically tightly guarded trade secrets and often end up being blockbuster sellouts with billions being made for the drug company. Is GSK about to give that potential up in this experiment? Chances are the answer is no, largely because malaria usually plagues poor countries and drugs for those countries aren’t famous for providing a large payback, thus reducing the drug company’s risk.

Just when you’d think Microsoft would have nothing to do with a venture of this type, up pops the information that one of the three websites hosting this open source effort is called Collaborative Drug Discovery, an Eli Lilly & Co spin off with funding from the Bill and Melinda Gates Foundation and Flounders Fund.

While the current drug information sharing is being done to experiment with “neglected” diseases, there is some speculation this process may be viable for developing commercial drugs. That might be a bit of a stretch for the simple reason that intellectual property issues would need to be dealt with before anyone could proceed. No matter what the outcome of “this” experiment in camaraderie, it may turn out to be “the” way of doing business in the future.

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.

There is one exception to the general rule of copyright vesting in an author’s work. It’s called “work for hire.”

In a nutshell the concept of work for hire is meant to let a company train, share ideas and educate the people they employ without the underlying fear that they are creating their own future competition. Generally speaking, this is an exception to the general rule of copyright where it vests in the author of a work.

Let’s take a closer look at this doctrine. A company employer is assumed to own copyright on any work created by their workers during the scope of their job. Along with this assumption is the fact that businesses will usually also lay claim to ownership of work produced by independent contractors (if they commissioned the work); if both parties agree in writing the work was work for hire, and that the work itself fits in one of nine categories enumerated in federal law.

As you may expect, the language in the statute leaves the door fairly wide open for vigorous arguments. Let’s look at an example. What if you had a tech support person working for you during the day that went home at night and created software applications? Is that person now working outside the scope of their job at your company? What if the person used skills or ideas learned at your workplace? While you might have thought to put scenarios like this in a work for hire document, the vital question is whether or not “you” will own the work.

There is no right or wrong answer to those questions because an answer is dependent on the facts of each case individually. This is why it is critically important to speak to a Los Angeles business litigation attorney with expertise in this area to outline what you would need to protect your company.

Now, here comes the fly in the ointment – startup tech companies who need their software developed for them and they hire out work as they need it done and when they can afford it. The fly in the ointment is that computer code isn’t really in any one of the nine federal work for hire categories, which puts a crimp in what the company is supposed to do. Put another way, this means the company almost has to hope the programmer’s ethics are superior, and that they won’t use what they’re working on to start their own firm.

The good news is that a recent court decision, JustMed, Inc. v. Byce offered this area of the business world a bit of elasticity when dealing with work for hire issues. The court held that a software developer was an employee and that meant any code developed belonged to the company that hired the developer.

This is an interesting case for another reason as well. The court came to this verdict by almost flying in the face of considerations that would usually lead courts to classify a relationship as being that of an independent contractor. Those factors included: the parties never having a written employment agreement; the business didn’t withhold taxes, provide benefits or a W-2; the company didn’t offer much in the way of direction for the job; the contractor used their own equipment and worked remotely.

The bottom line here is that this area may yet be open to further interpretations as new cases develop for consideration. In the meantime, each case is based on and dealt with on its own merits virtually guaranteeing different results every time. When in doubt about the work for hire doctrine, talk to a Los Angeles business litigation attorney. It could save you some grief later.

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.