Protecting Your Blog's Intellectual Property

Intellectual Property
Wow. Intellectual Property. It's quite a mouthful. Sure, it's something you hear international playboy/patent attorneys throw around all of the time, but what does it actually mean? Intellectual property refers to laws that allow you claim ownership over certain intangible creations, like inventions, books, movies and trademarks. Next time you are in Monte Carlo playing Baccarat at the big boy table, try slipping it into the conversation. The knowing winks from around the table will indicate you have used it correctly.

IP and Blogs
Okay. You know what it means, but how does intellectual property relate to blogs. Intellectual property is that part of the blog you own. Most bloggers have a copyright in their content and a trademark on their name and do not even know it. Some bloggers even have valuable intellectual property in their domain name, patentable process and/or the trade secrets embodied in email lists and what goes on behind the scenes. Unfortunately, failure to properly protect this intellectual property can cause it to move into the public domain and be lost forever.


Domain Names
While patents are expensive and trade secrets merely involve keeping the information confidential, nearly every blog has the potential for domain name, copyright and trademark protection. Domain names are given on a first come first serve basis. If you have a http://blawgit.blogspot.com blog address through blogger.com or similar service, you may wish to grab the http://www.bretttrout.com domain name sooner, rather than later. For a few dollars, you can grab your domain name, which a cybersquatter may hold hostage for thousands of dollars a year from now.

Trademarks
If your blog or podcast has a unique name, you may want to obtain a federal trademark registration on it. As soon as you use the trademark in commerce (use it to identify your posts) you have “common law” rights in the trademark. While common law rights are important, a federal trademark registration provides for triple damages and recovery of your attorney fees if someone willfully infringes your trademark. The great thing about these increased penalties is that defendants run scared, rather than fight; something that turns out to be very valuable when you are paying your intellectual property attorney $500/hr to defend your rights. You can check out the Trademark Office for free online at www.uspto.gov to see if anyone has beaten you to your registration. While you can register your own federal trademark for a little over $300, paying $1200 for a trademark attorney to do it right will pay large dividends if you ever have to sue someone for infringement.

Copyrights
Like trademark protection, you have copyright protection as soon as you post a blog. Strangely, the same protection does not automatically apply to podcasts. You have to make sure you record a copy of the podcast to have copyright automatically attach. In either case, you need to register the copyright if you ever want to sue anyone for infringing your copyright. Since the Copyright Office does not compare your registration against previous registrations like the Patent and Trademark Office, Copyright registration is much cheaper. Registering your copyright yourself runs about $45, while enlisting the help of a qualified Copyright attorney runs about $200.

Knowledge is the Key
Whether your blog or podcast is associated with copyrightable material, valuable trademarks, trade secrets, domain names or even patentable subject matter you should at least know what you own. It is important to meet with an intellectual property attorney experienced in working with bloggers to tell you what you have and how to protect it. Often, an initial meeting with an intellectual property attorney is free and you do not incur any charges until you actually pursue formal protection. Even if you decide not to go any further, it is a good idea at least to find out what exactly what you own and your options for protecting your intellectual property.


Brett Trout


trademarks copyrights domain names blogs

EvilChristians battle Islamic Rage Boy at the PTO

Apparently having no problem issuing federal trademark registration for EvilChristians, the United States Patent and Trademark Office (USPTO) is seemingly deeply offended by an application for a design mark entitled Islamic Rage Boy.

Although I have not been in the trademark business as long as Christians an Muslims have been at odds, I have been in the game since long before they took their battle to the USPTO. Apparently, the website The Nose On Your Face (TNOYF) tried to file for federal trademark protection for its Islamic Rage Boy character as used in association with its comedy show broadcast. TNOYF is a comedic website which lampoons mainstream media coverage. TNOYF even has a tagline "News so fake you'll swear it came from mainstream media."

Trademark examination is a subjective thing. I am all too acutely aware that the subjective predilections of one trademark examining attorney are not necessarily precedent to another examining attorney. In this case, however, there seems to be more going on than a mere difference of opinion. Although not privy to the rational behind the USPTO's grant of the EvilChristians trademark, the particular examining attorney involved with the prosecution of Islamic Rage Boy appears, if TNOYF's reproduction of the USPTO Office Action is to be believed, to be arguing from a position based more on faith than law. Statements that the meaning is "clearly offensive to all Muslims" and that "associating Muslims with the imagery of extreme violence would be offensive . . . to the entire American public" does not seem to be supported by any citations.

While I am not advocating for or against registration of this trademark, the language used by the examining attorney in speaking on behalf of the sensibilities of the entire Muslim population and the American public concerns me greatly. An examining attorney is free to use any facts at his or her disposal to reject a trademark application. An examining attorney is even allowed to use his or her own moral compass to make an initial determination as to whether a particular trademark might be immoral or scandalous. However, when an examining attorney annoints his or herself the sole moral arbiter of what I personally find offensive, that is clearly not appropriate. Such over the line determinations should, on their face, prompt an objective review of the application by examining attorneys who have not demonstrated a bias in the past with regard to the matters at issue.

Immoral matter cannot be registered as a federal trademark. Pundits, however, should be allowed to protect the intellectual property contained in their parody and free speech. Without more information, I cannot determine upon which side of the line this trademark falls. I do feel, however, after reading the Office Action proffered in this case, that the words used by the examining attorney in this case are inflammatory, and indicate a rejection based more on hyperbole and emotion than reason and the rule of law.

For a somewhat irreverent translation of the Office Action in this case, jump over to TNOYF.

Brett Trout

evil christians islamic rage boy trademark USPTO

Trademarks FAQ

Nearly every business has a trademark, but few know what a trademark is. Even fewer take the steps necessary to protect what for many companies is their most valuable asset. A little knowledge can not only help you choose between "good" and "bad" trademarks, but can help steer your company clear of a trademark lawsuit costing hundreds of thousands of dollars. Here are some of the most frequently asked questions I am asked about trademarks:

So what is a trademark?
A trademark is a mark that identifies goods or services coming from a particular source. The mark may be a word, name, phrase or symbol. By identifying goods or services as coming from a particular source, consumers can go back to that good or service time and again, relying on the quality they have grown to trust.

How do I "get" a trademark?
You cannot obtain trademark rights unless you actually USE the trademark in commerce in association with goods or services. Without use, there is no trademark. Even if you have a trademark, if you stop using it, it will go abandoned after a period of time.

What are the different types of trademark protection?
Once you start using your trademark in commerce, you obtain what are known as "common law" trademark rights.  Common law trademark rights can be effective in obtaining an injunction or a judgment against someone infringing your trademark, but they do not provide all of the benefits associated with state or federal trademark registration.

Every state provides for both registration and enforcement of trademark rights. While these state protections involve a small cost, they typically offer little more protection than common law rights. Accordingly, most companies opt for either free common law protection or much more valuable federal law protection. Federal trademark registration involves governmental and attorney fees of approximately $1,200 and about an eighteen month wait.

What are the advantages associated with federal trademark registration?

Federal registration provides several advantages over common law and state law trademark protection. Like common law and state law protection, federal trademark registration allows you to recover the damages a trademark infringer has caused your company.  Unlike those two weaker types of protection, however, federal registration allows you to recover your attorney fees and up to three times your actual damages if the infringer of your federal registration is found to be "willfully" infringing your trademark.

Federal registration also allows you to use the ® symbol as a warning to would-be infringers and constructive notice to everyone in the country of your ownership of the trademark. Federal registration provides several other benefits, including incontestability, and prima facia evidence of the validity of the trademark and your ownership thereof. Unlike patents and copyrights, trademarks can last forever, as long as you keep using them.

Are some trademarks easier to register than others?
Yes. How easy it is to register a trademark depends in large part on how descriptive the trademark is of the particular product or service provided in association with the trademark. For example, if the product is bananas the trademark "Banana" would be deemed “generic,” and would not be protectable at all. Similarly, the trademark "Yellow" would be deemed “descriptive,” and would also not be protectable. The trademark “Monkey Stick” however, would merely be “suggestive,” and would, therefore be protectable. Suggestive trademarks do not provide enough information to determine what the good or service is, but trigger that mental "Ahhh" after you find out what the good or service is.

What are the easiest types of trademarks to register?
Not surprisingly, the easiest types of trademarks to register are the ones least preferred by marketing departments. "Arbitrary" and "fanciful" trademarks are the easiest to register because they do not describe or suggest the goods or services. This is the exact reasons marketing departments shy away from them. The trademark “REGAL” for bananas would be “arbitrary,” whereas the trademark “Baaan” would be “fanciful.” Both arbitrary and fanciful marks are protectable and registrable.

The question to ask in determining whether a prospective trademark is likely to be registrable is “Would my competitors likely use the word in their marketing of the product?" If so, the trademark is probably protectable, if not, then the trademark is probably not protectable.

While arbitrary and fanciful marks may seem initially less attractive, once the public associates the trademark with your goods or services, as in the case with eBay, the trademark can become extremely valuable with a broad scope of protection.

Can things other than words be trademarks?
Yes. Logos, symbols, colors, sounds and smells can all be protectable trademarks if they are not descriptive and uniquely identify your goods or services.

Should I register my trademark?
To determine whether you should register your trademark, you should examine several factors.

• How much is the trademark worth to the company?



• How likely is it that someone may infringe the trademark?



• How likely is it that a competitor will obtain rights in the trademark by using the trademark in a different geographic region?



• How much would it cost your company to have to change trademarks?



• How much value would a trademark registration add to your company's intellectual property portfolio?

Once you have the answers to these questions, visit with an intellectual property attorney to determine whether a federal trademark registration would be right for your company. Many intellectual property attorneys offer a free consultation to determine whether or not a federal trademark registration is warranted.

Even if the decision is not to proceed with a registration, it will not have cost you anything and at least you have the piece of mind knowing what you have and where you stand at when it comes to trademarks. 

Brett Trout

trademark USPTO

LucasArts Opposes Digg.com Trademark

LucasArts Entertainment Company (George Lucas' "Star Wars" company) has filed a trademark opposition against Digg Inc.'s attempt to register the trademark Digg for use in association with "providing online news and information in the field of technology, namely, computer games and computer enhancements for games." While Digg obviously deals with much more than video games, Lucas is apparently concerned that this use will lead to consumer confusion.

Back in 1994 LucasArts filed for registration of the trademark The Dig for a video game. Lucas does not want people mistakenly assuming Digg.com is affiliated with LucasArts. While opposition proceedings typically take a year or more to complete, with a Goliath like LucasArts in the fray I would look for the parties to settle the issue well before the Trademark Trial and Appeal Board gets a formal crack at it. But who knows, Digg.com may just have a ball bearing and wrist rocket up its sleeve.

Brett Trout

lucasarts Star Warsgeorge lucas digg trademark trademark opposition the dig