Who Is Your Lawyer? » Trademark

Copyrighted

Robert Scott Lawrence — Tue, 13 Dec 2011 19:25:20 +0000

The other day I was talking to a non-lawyer friend of mine – a smart, successful guy – and he started telling me about this new website he had set up and how he was thinking of patenting the site. As an IP lawyer, I tend to cringe when I hear laypeople bandy about terms of art in ways that don’t make any sense, so of course I asked him what he meant, and whether his website performed any kind of magic hocus-pocus that could even hypothetically allow it to fall within the realm of patentable subject matter.

It did not.

It was merely your standard, cookie-cutter, off-the-shelf WordPress theme with no modifications or alterations, no unique HTML code and no embedded processes. The site did not even contain original photographs, since the web designer he had hired contented himself with stock photos purchased from Getty. While they were nice photographs, and the site itself was attractive, there was nothing about it that would cause a lawyer to make haste for the patent office.

After looking at his site, I told my friend I did not see a basis for a patent application, so he switched gears and asked if I could trademark the website, or copyright it. While both of these options are possible – and, in fact, trademarking a URL has historically been fairly common – of late the PTO has been turning away dot-com trademark applications like unwanted junk mail. And although copyrighting the content of a static website is technically feasible – all one has to do is send off a copy of the text with a check to the copyright office – as a practical matter it does not serve much purpose. Under prevailing U.S. law whatever you write and publish to the web is automatically protected by copyright, and formally registering that material with the government merely gives you the right to sue any subsequent infringer for statutory damages. While that may be enough to justify registration for some folks, usually it is just a waste of $35.

The one exception to this would be if you created a website using a new language (e.g.,YOU-NIX). However, unless there is something special about the code which you fear will give rise to copycats or make it attractive to the BitTorrent crowd, there is very little likelihood that your source code is going to wind up being sold at underground swap meets. If it does make its way into the public domain, then you can still register your copyright and sue for infringement. The after-filed registration merely limits your available remedies, and forces you to prove the factual issue of when the material was created. When I explained all of this to my friend, he shook his head and muttered something about the opacity of the law. Then he started telling me about a great investment called derivatives. Ten minutes into his convoluted explanation about subordinated notes, second tranches, and slicing-and-dicing sub-prime mortgages I gave up and mentally departed the scene. Even if it does have a few flaws and inconsistencies (e.g., the FACE trademark), intellectual property is still far more logical than investment banking.

The only derivative I want to concern myself with is “derivative use.” The analysis may be obscure, or obtuse — it may even be opaque — but unlike financial derivatives the theory behind it remains constant. And you can take that to the bank.

Everlasting Marks

Robert Scott Lawrence — Wed, 12 Oct 2011 02:50:39 +0000

My idea of a perfect product is one that satisfies a need, and that never has to be replaced. Sounds simple, doesn’t it?

In theory, this is how it works.

You get married, once, to someone you love. You’re still together for your golden anniversary and looking forward to platinum.

You buy your dream house, and keep it forever. The kids will always have their rooms, and won’t have to Google you when they get back from Spain and discover that you moved to Connecticut.

You furnish your home with things you actually like. For a year all you had in your house was an antique bed and a side table, but then you splashed out and filled the rest of the house with items that don’t need to be upgraded. You couldn’t afford it at the time, but you did it anyway, on the theory that it’s cheaper to buy what you want once than it is to keep upgrading every few years. Now you have your partners’ desk from 1889, a Tiffany lamp you found at an estate sale, and paintings from local artists who you’ve met and whose work you admire.

You buy a car and own it until it becomes a classic. You’re the suave guy in his 60s who’s been driving a Jaguar E-type for 40 years.

You buy enough classic suits to wear until you die (so don’t get fat). While you don’t have to leave 300 Caraceni suits to your grandson like Gianni Agnelli did, take a leaf out of Bobby Fisher’s playbook and buy 23 bespoke suits at a time.

You buy shoes that don’t die. Think Church. Think Alden. Yes, they cost a fortune, but they wear like iron. My father owned a pair of Alden cordovans for over 50 years, and only had to resole them three times.

You buy things that don’t break. Fiskars shovels with lifetime warranties (Fiskars guarantee: ”This product is warranted to the consumer purchaser to be free of defects in material and workmanship for as long as the consumer owns the product. At Fiskars Brands, Inc.’s option, defective product will be repaired, replaced or substituted with a product of equal value.”).

Baker furniture.

Umbrellas by the same company that’s been making them for the British royals for 200 years (each royal gets one umbrella issued at birth).

Mizuno blades.

Straight edge razors.

Purdey shotguns.

I could go on, of course, but you get the idea. Why isn’t life designed so that we can just buy one good thing and never have to replace it? Why is it that we are destined to a life in which cars are designed to get door dings at the slightest touch (which cost $700 to fix), iPads lack cameras until Gen 2, golf club manufacturers introduce new-and-improved lines every six months, memory upgrades force us to go out and buy new computers, and umbrellas fall apart in a stiff breeze? Why are we sentenced to a life in which things break within minutes of their unveiling?

I’ll tell you why.

It’s a dirty little secret called “planned obsolescence.” Some functionary figured out that companies could make more money if they designed and sold products that had to be replaced. Why build an unbreakable umbrella when you can create a product that has to be replaced twice during every business trip to the Windy City? Why market a straight edge razor when disposables have to be, as their very name informs us, “disposed of” every week? Why build to last when a tear-down or temporary is good enough for the moment and guarantees repeat business? Everybody accepts that this is the way life is, but it’s really a mockery of life when people scrabble to make a living to go on buying the same things over and over again. We think paper plates are convenient (“Great for parties!”), and never think we just cut down a forest so that we didn’t have to do the dishes, never think we just gave $5 to some corporate huckster for the privilege of having to buy paper plates over and over and over ad infinitum until the end of time.

I know the counterarguments, of course. We’ve all heard them. The critics who argue that life itself is impermanent, that convenience is as important as tradition, and that cheap means affordable to people who can’t afford better. Even Chuck Palahniuk got a dig in with his lamentation about the insane power of material things in Fight Club (“You buy furniture. You tell yourself, this is the last sofa I will ever need in my life. Buy the sofa, then for a couple years you’re satisfied that no matter what goes wrong, at least you’ve got your sofa issue handled. Then the right set of dishes. Then the perfect bed. The drapes. The rug. Then you’re trapped in your lovely nest, and the things you used to own, now they own you”).

And for the most part, I don’t disagree. I’m not about to go off on some privileged rant like the mom in Midnight in Paris, who snidely remarks “Cheap is cheap” when the hero doesn’t feel like buying a $26,000 chair. But don’t tell me things can’t be made to last. They can. We know, empirically, that they can. But nobody wants to make them, because the world is fashioned so that fashion and fads are where the money is, and the hive mind follows along without ever wondering what the world would be like if we just built houses that were designed to last 500 years, so that eventually everyone would have a house; or made cars that didn’t explode at the slightest impact, so that everyone could have a car without making monthly car payments for their entire lives; or made shoes that lasted long enough so that everyone in the world could raise their hands and say they had a good pair and could now focus on discovering the cure for cancer or the Universal Theory of Everything.

When we build things that last, we buy ourselves time. Yes, it costs more upfront, but it is like investing in the infrastructure of the country. You have to pay to build the bridges now, so that people can get where they need to be in the future. Otherwise you’re stuck throwing up pontoon bridges and calling it a national emergency when it was just poor planning all along.

This is my homespun buy now-pay now-live now philosophy of life. For those of you who disagree or consider my attitude elitist in any way, please feel free to keep on drinking cava out of plastic cups.

Charlie Sheen and the Trademark Factory

Robert Scott Lawrence — Thu, 08 Sep 2011 01:08:10 +0000

I love trademarks, right? Because that’s what I do, trademark logos and cool sayings, and practice my VATICAN NINJA ASSASSIN moves on other attorneys who try to impede my God-given right to obtain the exclusive use to everyday words and catch phrases and lock them down so other people (i.e., you) have to pay my client a huge fee if you want to use them. You want to say FACE on television, buddy? That will be 10,000 smackeroos, or I’ll see you in court.

GOOGLE me if you think I’m joking, you YAHOO.

I’m the guy who helped get FACEBOOK the rights to BOOK, too, so that none of you literary types could even say the word in connection with anything at all, ever, unless you paid me. You want to open up a BOOK-store? Well, guess what, it’s “Show me the money!!!!” time here in Trademark City. Words are my business, and I will hoot and holler and grunt and even cry in front of the PTO and any commission you care to put me in front of so that I can have exclusive rights to any word I want. Just so you and I are clear: I have the ability to take common words such as BOX, or TOY — or even THING – and yank them out of the common lexicon.

Don’t know what LEXICON is? Good. That’s my word; I took that one years ago and now nobody even remembers it.

This is part of the strategy I market under the trademark DUH, WINNING, which is a phrase I coined in my ADONIS DNA-altered youth when I accidentally ingested TIGER BLOOD and transformed myself into a televangelist for over 30 seconds, and thereby participated in a divine revelation that eventually resulted in my worldwide nomination as a ROCK STAR FROM MARS.

You think you have LION BLOOD, or AVATAR BLOOD, or SCIENTOLOGY BLOOD like Tom Cruise? You think even tigers can say the words “tiger blood”? Well you don’t, and they can’t, because all of that is related to TIGER BLOOD, which can only be used with my permission.

In fact, anyone who wants to trademark any crazy words or phrases had better just see me first and cut a deal, because otherwise it is just NO GO, and NO DICE and NO WAY and NOT NICE. (I have trademark applications pending for those too, so you better watch it!)

If you have any questions about how trademarks work, call me on my cell at 1-(DUH)-WIN-NING.

Live Nude Copyrights

Robert Scott Lawrence — Fri, 05 Aug 2011 01:27:28 +0000

Dear readers, fans, intellectual property aficionados, and assorted paparazzi,

I’ll be the first to admit that I’ve fallen down on the job. In strict counterpoint to Future Tom and his almost mythological daily posting, my production has withered as my workload has increased. The new move, the new job, the new commute, the new hairstyle — they all conspired to throw me off my game. Instead of posting jocular commentary about the insanity of the virtual world and the plebeian nearsightedness of the PTO, I have been applying myself at work, Hemingway-style, engaged in industry, high finance, and the tedium of document review. My lighthearted moments appear at increasingly longer ends of the sine wave, and tend to strike me unawares about 11:00 at night, when I climb into my IP-laden Tesla roadster and silently zip home on the toll roads to the Elysian hunting camp in which I now reside.

I post here in an almost-but-not-quite embarrassed fashion to explain to you that with respect to my blog — just as with my languishing marathon training — I have adopted a new resolve. I vow to post more frequently and regain the vigor of my misspent youth. If you thought I was amusing before, prepare yourself for an entirely new level of amusement, Rabelaisian in scope, Machiavellian in design, Neapolitan in choice of pastry.

And when, you ask, will this new romance commence?

Soon. Very soon. Perhaps as soon as the day after yesterday.

If you misplaced or forgot to bookmark my URL, please subscribe to my feed now. For those of you who hate to subscribe to things but still have sufficient neurological juice left in your big big brains to remember short phrases, just open up your browser and type “Who Is Your Lawyer” in one of its myriad forms (e.g., Who Is Your Lawyer, whoisyourlawyer, whois your lawyer, whoisyour lawyer, or even “who’s your lawyer” or “whos your lawyer“). Eventually, you will find your way to my site, as all variations of Who Is Your Lawyer? lead to me.

Be forewarned that on occasion these latter variations of my name will attempt to waylay the distractible reader with intriguing articles about the now-defunct series Rex Is Not Your Lawyer. As much as I hate to say it, that is not my series nor my site, as I am not David Tennant (however much I appreciate his work in Dr. Who).

Trademark In A Box?

Robert Scott Lawrence — Tue, 26 Jul 2011 19:00:17 +0000

So you decide you want to trademark your brand, and you start looking around for names that sound attractive and coincide with your corporate needs and image. After late night bull sessions with your fellow officers and running your proposal by the bartender at Daily’s, you decide that your company — which makes industrial strength boxes for the discerning consumer — should have a trademark worthy of its product.

You decide to call the company BOX.

Simple, elegant, no-nonsense, the name says it all. You are BOX, like YHWH is the architect of the universe and Madonna is the icon of 80s pop. It not only is what it is, it says what it is, and what it says is unmistakably boxy and smart, not only sharp-edged but cutting edge.

The one problem with your grand design is, of course, that BOX is — to be polite — fairly descriptive. Even in another language it would be safe to assume that pretty much everyone knows what a box is and uses the word (and the item itself) regularly. This creates a dilemma for you, since unlike made-up words (e.g., Yahoo), descriptive marks are frowned upon by the policy interpreters at the PTO. Oh, you may beg to differ when you hear that FACE or BOOK made it to the review stage, but at the end of the day plain vanilla descriptive terms have a much harder time making it out of the office alive.

So what’s the secret to getting a descriptive term made into a protectable mark? Simple Simon says the answer is: word combining. If COW isn’t protectable, try SKINNY COW. If COFFEE isn’t protectable, try PURE BLACK COFFEE. If BURGERS doesn’t pass muster, try KILLER BURGERS. The more words you use, the greater the chance your trademark will be granted.

So what does that mean for BOX? It means you need to find another great word to add to it, for a one-two punch that will stick in consumers’ minds. Although logically this should be easy, the reality is that trade names are like hot URLs, and you will find that most of the obvious names are already taken. Latecomers to the game have to get inventive to come up with a good name for a trademark, which can be a bit discouraging (like finding your real name used by somebody else on Twitter), but do not despair. All is not lost.

In the case of BOX, a quick TESS search shows hundreds of marks in use, including but not limited to the following: Feedbox, Stormbox, Durabox, Shockbox, Chewbox, Juicebox, Aquabox, Superbox, Shelterbox, Smart Box, Hot Box, Busy Box, Jury Box, Inkbox, Cyberbox, Onbox, Singlebox, Hintbox, Onebox, Zen Box, Blackbox, Ultra Box, Viewbox, Cinebox, Bluebox, Yabox, Tool Box, Night Box, Bam Box, Hbox, Sugarbox, Speedbox, Smashbox, Coldbox, Job Box, Fuelbox, Trade Box, Rock Box, Thatbox, Juke Box, Fuse Box, Saucebox, Artbox, Velvet Box, The God Box, The Glitter Box, Out Of The Box, Boxmaster, The Secret Box, Dr. Joe’s Secret Box, Office In A Box, Face Lift In A Box, Captain In A Box, Divorce Tool Box, Bones In A Box, and everyone’s cheesy favorite, Jack In The Box.

Are you daunted? Don’t be. As someone once said, “Hope remains while the fellowship is true.” A smart trademark attorney (like the one who came up with SMART BOX) or marketing team will present you with hundreds of additional combinations to choose from, and they’ll even vet them for you in the market prior to launching your brand. How do you think the 4 Hour Work Week found a title? That’s why the marketing gurus sit back and rub their bellies after lunch — they get paid to ferret out cool names.

So now that I have disillusioned you in your quest to pick the perfect name by yourself while sitting in your room alone brainstorming, go out and hire a brainiac to do your thinking for you. Don’t box yourself in by going it alone.

World Famous Trademarks

Robert Scott Lawrence — Wed, 18 May 2011 16:48:03 +0000

The other day a friend of mine was talking about the way we recognize symbols and what they mean to us. He suggested that with the end of the series Smallville a huge portion of the nation’s bloated television audience would no longer be exposed to even a hint of the symbol of strength and courage by which the Man of Steel is known, but instead would find themselves unhappily relegated to watching re-runs of Cheers or M.A.S.H. or even older late-night paradigms of hopelessness (e.g., Archie Bunker). A symbol that we can look up to in times of trouble is something we all need, of course, but I found it oddly intriguing that the symbol he looked toward was a make-believe superhero from the Golden Age.

Upon further reflection, I attribute his thinking to the society we live in, which is inundated with stars both real and imagined, but which of late seems to have openly embraced the icons created so long ago by the stalwarts of the comics industry. Thus, recent years have seen a spate of movies about the Dark Knight, Daredevil, Iron Man, the X-Men, Wolverine, the Hulk, and the Fantastic Four — to name a few — and the superhero bandwagon shows no signs of slowing down anytime soon. This year alone has witnessed new films about the Green Hornet, the Green Lantern, and everyone’s favorite hammer-loving knucklehead, Thor.

America has grown so fond of heroes leaping around in multi-colored tights like jesters in a Shakespearian farce that a cottage industry has grown up devoted to making fun of superhero movies. Do you remember that Oh-so-forgettable Will Smith vehicle about the drunken superhero who drank to forget the sorrow of losing his one and only super-mate? Who had ditched him to marry a human and was hiding her own stupendous array of superpowers? Yes, I’m talking about Hancock, for any of you brave enough to own up to having seen it.

But I’m not just talking about overt (and some might say ham-handed) rips on superhero-dom, but about more subtle plays on the nature of the beast as well. For example, let’s look at Kung Fu Panda, which I will admit was a winner not only at the box office but in the hearts and minds of little kiddies everywhere. Like many a Jack Black film, if you liked the Jack Black vibe you were already halfway to liking the movie. Unlike many of his lesser efforts, however, this had a sustained brilliance that perfectly encapsulated the idea behind much of superhero fandom — i.e., it captured the idea of the lonely, overlooked boy who acquires fabulous powers that make the world sit up and take notice. That’s the bit that draws boys in, but if they graduate from the comics of the 60s and 70s and grow up to be lifelong fans (or even sporadic enthusiasts), attentive readers will recognize that after the initial phase of “Hey, this is great! Look everyone! I’ve got super powers!!” the other shoe drops, and the recipient finds that with great powers comes great responsibility. I like to call this the “Oh, c^*%. I’ve got to save the world!” phase of the superhero relationship, in which our hero stalks about all broody and reluctant until struck by a much-needed ray of enlightenment. This concept was magnificently riffed on in the utterly fantastic Scott Pilgrim vs. The World, which is a thoroughly engaging hybrid of the superhero supernova. It is — literally — a movie that makes fun of the concept of superheroes while embracing and making the concept itself fun. Which is almost a zen koan, really.

Of course, I’m oversimplifying. I recognize that some superheroes were created broody from the start. The Silver Surfer only assumed the mantle of his powers in order to try and save his dying race and/or bring back his one true love. And Batman’s psychoses, of course, sprang from having witnessed his own parents’ murder.

Other of the supers were created in a burst of patriotism, and we will soon be privy to the birth of Captain America as he steps to life from the narrow silhouette of his tubercular mortal host, Private Steve Rogers. Cap’s heroism was born in WWII and his history is an almost perverse echo of America’s own — he is steeped in the blood of America’s enemies, having fought in virtually all its wars, including the Cold War, as well as other wars that are too secret to reveal to our citizens outside the confines of Marvel Comics. If Wikileaks could reveal Cap’s history, I have no doubt we would be appalled and thrilled in equal parts.

What does all of this mean from the standpoint of symbols? In a very real way, what the public focuses on and recognizes, what draws our attention, is the same sort of packaging that corporations use to draw the public in. We recognize the Superman symbol in the same way we recognize the Nike swoosh. We recognize the Bat signal thrown up in the sky the same way we recognize the shadow of the Golden Arches. The logos of our favorite superheroes are no different than the logos of our favorite football teams, Catwoman’s costume indistinguishable from Louis Vuitton’s magical monogram.

What is amusing to me is that these symbols have stepped out of the pages of books and have taken on power in the real world. Though they were never intended as trademarks by their creators, they are among the most powerful marks ever known. Just try and use the Superman symbol for your business and see how fast you get sued by DC Comics and whatever movie studio is contemplating the next installment in the series. In truth, these symbols have now become enshrined in our collective consciousness to such an extent that they are at least as famous as any other mark.

If you doubt that this is so, then riddle me this. Other than the cross, what symbol is more famous than the Superman logo?

Jesters Do Oft Prove Prophets

Robert Scott Lawrence — Tue, 26 Apr 2011 02:42:37 +0000

In a world where corporations take umbrage at the slightest violation of their trademarks, where performing artists have been known to scream obscenities and throw shoes at preteens for downloading their favorite single on Kazaa, and where you can eat a Big Mac three times a day, but can’t call yourself Big Mac, comedy remains the one true fortress of intellectual property — where anyone with the requisite strength of character, sharp tongue, and penchant for trenchant commentary can take center stage and cross swords with all and sundry.

There is no man too majestic, no Santa too sacred, no idol too idolized that he cannot be skewered on the point of someone’s rapier wit. Some say a people is known by its politicians, but a fairer reading can usually be had by analyzing its humor. In the words of the incomprehensible Chaucer, “a man may seye full sooth in game and pley,” which — loosely translated –means “many a true word hath been spoken in jest.”

And as far as silly pop songs go, well, making fun of them is almost as sacrosanct as the tipping of sacred cows in upper Boise State.

Who Is Your Lawyer? » Trademark

Copyrighted

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