To Protect Their Big Ideas, Entrepreneurs Must Take These 5 Vital Steps
As corporate America continues to downsize, small businesses and start-ups have picked up the slack. Today, small businesses employ nearly half of the U.S. workforce, and popular T.V. shows such as “Shark Tank” and “The Profit” fuel the fires of aspiring entrepreneurs who hope to make it big. Unfortunately, many entrepreneurs don’t successfully protect their big ideas and could lose all or a sizeable chunk of their businesses.
Love binge-watching "Shark Tank" and "The Profit"? Get inspired and safeguard your vision!
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
In Switzerland, Not Everything is Coming up Apple
Because of a trademark issue, the Apple Watch may be blocked from being sold in Switzerland until at least after December 5 of this year. Swiss watchmaker Leonard Timepieces currently has a trademark that prevents third parties from using “apple” or showing the image of an apple in class 14, which includes jewelry, precious stones, timepieces, and watches.
Can you buy an Apple watch in Switzerland?
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Google Considers Buying Patents to Combat Patent Trolls
Non-practicing entities (NPEs), otherwise known as “patent trolls,” are generally entities that own patents without entering commerce and that use those patents to threaten lawsuits against businesses and entrepreneurs, demanding licensing fees for their patents’ use. They’re a growing problem that Google says it will help stop by attempting to buy the patents directly from the trolls themselves.
Is a deal made with a patent troll ever a good one?
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Get a License... and Remember the Alamo!
The Alamo Mission building in San Antonio, Texas, is central to state history and is said to be the most popular tourist destination in the Lone Star State. For many, the distinctive curved parapet is recognizable on its own, but the proper use of that image is the subject of ongoing trademark disputes. In 2011, the Texas General Land Office (“GLO”) took over custodianship of the Alamo from the Daughters of the Republic of Texas. In an effort to increase funds for preservation of the building, and to prevent excessive use by for-profit companies, the GLO sought and obtained trademark protection for THE ALAMO both alone and in combination with an image of the building’s outline.
Why did the Alamo Beer Company sue Old 300 Brewing in the Western District of Texas?
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Periscope Gets Push-Back from Hollywood, TV, and Sports Leagues
The latest social media application on the rise is Periscope, which allows users to live stream content from their phone to other specific users or to the public if they wish. Many people, however, have used the app’s live-streaming function for “video piracy,” allowing viewers to access copyrighted content that is often, but not always, protected behind some sort of paywall.
Do you think you can avoid the trap of accessing copyrighted content on Periscope?
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Adidas Takes Marc Jacobs to Court Over Three Stripes Trademark
Last month, Adidas filed a complaint against high-end fashion brand Marc Jacobs to protect its iconic “Three Stripe Mark.” Along with trademark infringement, the complaint also accuses Marc Jacobs of unfair competition, trademark dilution and deceptive trade practices. Does Adidas have a strong case? Based on the brand’s long history and past success defending its trademark, Marc Jacobs may have an uphill battle.
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Read more about Trademark Infringement.
In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Hedge Funds Hedge Bets with the PTAB over Patents and IPRs
The America Invents Act (AIA) created a proceeding called Inter Partes Review (IPR) to challenge the validity of an issued patent at the United States Patent and Trademark Office. A petitioner may file an IPR to request to cancel one or more claims of an issued patent on the grounds of anticipation and/or obviousness based on patents or printed publications. Administrative Patent Law Judges in the Patent Trial and Appeal Board (PTAB) adjudicate IPR proceedings, and these proceedings are intended to be similar to validity challenges that would ordinarily take place in the federal district courts.
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Read more about Inter Partes Review.
In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Disparaging Trademark Registration Denied by Federal Circuit
On April 20, 2015, a Federal Circuit panel denied trademark registration for an Asian-American rock group’s name, the Slants, because the name is racially disparaging. Trademark law denies registration to marks that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Federal courts and the Trademark Trial & Appeal Board have upheld denials of many trademarks on a “disparagement” basis. The denial of registration for the Washington Redskins name, which is currently on appeal, is one recent example, and this ruling probably holds significance for that pending case.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Trademarks and Selling Pot - Lessons from Bob Marley to Willie Nelson
On April 20, famed singer Willie Nelson joined a growing number of celebrities when he hopped on the marijuana endorsement bandwagon. Nelson announced he is launching Willie’s Reserve, his personal brand of pot featuring “high-quality strains of marijuana.” Celebrity “endorsements” aren’t limited to the living, and in the cannabis marketplace, even Willie is no match for the late Bob Marley.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Trademarks and Risk of Cancellation - Use It or Lose It!
For the first time, the Federal Circuit directly addressed the “use in commerce” requirement under the Lanham Act for registration of service marks. In Couture v. Playdom, Inc. (No. 2014-1480, March 2, 2015), the Court held that mere advertising or offering of services is insufficient to support registration of a service mark…even if you are ready, willing, and able to provide such services. To qualify as “use in commerce” for purposes of federal registration, the services must also be rendered. Mr. Couture, unfortunately, did not begin rendering the relevant services prior to registration of the PLAYDOM mark. The Court therefore affirmed the TTAB’s cancellation of the registration on the basis that it was void ab initio since Mr. Couture had not used the mark in commerce prior to the grant of the registration.
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Read more about Trademarks and Trademark Protection.
In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Over 100 Million Takedown Requests Fielded by Google in 2015
Now with many years of experience working with the Digital Millennium Copyright Act (DMCA), service providers such as Google or YouTube deal with takedown requests like well-oiled machines. This increased efficiency has been matched by an increase in DMCA takedown requests from copyright holders: already, still in April, Google has processed more than 100 million such requests in 2015.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
You've Been Served... via Social Media?
You’re not the only one constantly checking Facebook, Twitter, and Instagram. As more people become more constantly connected to these online profiles, a growing body of case law now authorizes the service of process through social media as a last resort. Most recently, a Manhattan supreme court justice allowed an attorney to serve divorce summons through a Facebook private message from the attorney’s account to the husband’s account.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Who Owns The Rights to a Deceased Actor's Image?
In the U.S., Fast and Furious 7 earned a record $147 million during its opening weekend, and a touching farewell tribute to the franchise’s late star Paul Walker has fans scrambling for tissues. Undoubtedly, Walker’s untimely 2013 death was heartbreaking for his fans and loved ones, but it also required the film’s director James Wan to film Walker’s remaining scenes using footage from earlier films, Walker’s two brothers as body doubles and CGI (computer generated imagery) to artificially recreate the actor. But who owns the rights to the CGI and a deceased actor's likeness?
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
“Incontestable” Trademarks: Introduction to Trademark Protection
In the United States, a trademark registration becomes incontestable after the filing of a Declaration under Section 15 of the Lanham Act, 15 U.S.C. § 1065. In order to meet the requirements of Section 15, the mark must have been in continuous use for at least five consecutive years from the date of registration, and must still be currently in use in commerce. The Section 15 Declaration also requires verification that “there has been no final decision adverse to the owner’s claim of ownership of such mark for those goods or services, or to the owner’s right to register the same or to keep the same on the register; and there is no proceeding involving said rights pending and not disposed of either in the Patent and Trademark Office (USPTO) or in the courts.” Marks registered on the Supplemental Register are not eligible to achieve incontestable status; therefore, the USPTO will not accept Section 15 Declarations for these marks.
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Read more about Trademarks and Trademark Protection
In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
New Supreme Court Considerations on Patent Infringement
In March 31, oral arguments for the case of Commil USA, LLC v. Cisco Systems, Inc., the Supreme Court considered arguments for an extension to an already existent patent infringement defense: that the alleged infringer lacked the requisite intent to infringe. A good faith belief that another’s patent is invalid may already provide a defense to patent infringement. Now, the Court will determine whether that same defense can extend to cases of “induced infringement.”
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Craft Beer Battles Rage On Over Trademarks
Bell’s Brewery, a Kalamazoo, Michigan brewery, filed an opposition with the U.S. Trademark Trials and Appeals Board against Innovation Brewing’s attempt to trademark “Innovation Brewing.” Bell’s Brewery asserts rights in the unregistered slogan – “bottling innovation since 1985” – which Bell’s uses on bumper stickers. Additionally, Bell’s asserts that it uses the slogan “inspired brewing,” which is confusingly similar to Innovation Brewing’s name. Accordingly, Bell’s argues that the similarity between the Innovation Brewing name and the Bell’s slogans is “likely to cause confusion and mistake, and to deceive and mislead consumers into believing that (Innovation Brewing’s) beverages originated, are sponsored by, are licensed from, or are jointly owned by or otherwise associated with (Bell’s) and/or (Bell’s) goods marked with its Inspired Brewing trademark.”
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Read more about Trademark Litigation.
In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
All-Hands-On-Deck Needed to Ensure Data Security
One of the best way businesses can protect themselves from big data breaches is to have and implement a comprehensive data security plan that aligns IT, HR, legal and compliance, among other functional areas. The plan should begin with clear and detailed policies and practices for internal personnel and external contractors and vendors, which are communicated regularly and supported by appropriate training, audit and enforcement procedures. Policies should include password protected access, limited to only relevant personnel for the specific function or activity.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
TTAB Decisions Must Be Upheld, Says Supreme Court
The Supreme Court issued its first major trademark decision in more than a decade on Tuesday in B&B Hardware v. Hargis Industries, ruling that federal courts must defer to previously issued Trademark Trial and Appeal Board rulings when the issues that the two consider are identical. The Court reached the decision by a 7-2 majority, overturning a ruling by the 8th Circuit Court of Appeals, which found that federal courts owed the TTAB no such deference. Justice Samuel Alito wrote for the majority and Justice Clarence Thomas, joined by Justice Antonin Scalia, wrote in dissent.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
New Business Opportunities Abound for US and Cuba
Cuba is everywhere in the news recently, but few people seem to know how to capitalize on the thawing relations between the island and the United States. Importantly, even fewer U.S. attorneys have any experience with the Cuban government or people, so much of the legal writing on Cuba is off-the-mark. Cubans are fond of referring to sociolismo, the notion that the way things get done is by having the right socios (friends). At first glance, this may seem to be a reference to the black market or to corruption, but instead it points to the premium Cubans place on personal relationships and trust. No business can expect to make much headway without taking the time to build these relationships through face-to-face meetings, numerous cups of café, and genuine displays of respect for the Cuban character.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.
Big Changes to Design Patents & Patent Protection
Changes are coming to design patent law in the United States. The United States will formally become a member of the World Intellectual Property Organization (WIPO) effective May 13, 2015. There are several benefits that arise out of the United States becoming part of WIPO. Presently, it is necessary to file individual applications in multiple jurisdictions to protect industrial designs in each of the jurisdictions. However, the Hague Agreement provides a user-friendly international design application that can contain up to 100 designs belonging to the same class in a single application.
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Read more aboutDesign Patents and Patent Protection.
In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.