Once liability for copyright infringement has been established — and it’s usually not that difficult to do so, either you downloaded the copyrighted work or you didn’t — the plaintiff then gets to proceed to the damages phase. (This assumes there’s no criminal liability, which can exist, see 17 USC § 506.)
Monetary damages for copyright infringement can be quite steep. See 17 USC § 504. In particular, while a plaintiff can recover its “actual damages,” it can elect instead to recover statutory damages of between $750 and $30,000 for each work infringed. If you download a lot of music or movies, you can see how those damages might get very large, very fast. Indeed, they can actually go even… Continue reading
First Descents, a nonprofit organization based in Colorado, has filed a trademark infringement lawsuit in federal district court over national retailer Eddie Bauer’s use/registration of the trademarks First Ascent and First Descent. A copy of the complaint is available here.
This case is interesting because First Descents owns the rights to use its mark on clothing and the like, and it would seem to be potentially confused with Eddie Bauer’s First Descent/First Ascent marks, if used on clothing. Interestingly, Eddie Bauer is apparently attempting to claim prior use through “tacking,” which is the legal process of “joining of consecutive periods of possession by different persons to treat the periods as one continuous period.” Black’s Law Dictionary, 9th Ed.… Continue reading
What’s the biggest risk to small businesses in Georgia, and everywhere else?
In my opinion, the biggest risk to small businesses in Georgia and everywhere else is losing control of the business’s web site.
So much of today’s economy is built around the Internet, whether it’s for customer service and support or sales of products and services. Everyone uses the Internet to interact with the companies that they do business with. The worst thing from the company’s perspective is to hear a customer say “I couldn’t find your web site.”
And how could this happen? Here’s an all-too-common scenario for you to consider. The business could be of any type or size, really, from a small technology start-up to a… Continue reading
Here’s an interesting blog article (h/t Rachael Vaughn, @rachaelvaughn on Twitter), perhaps provocatively titled “Why Register a Copyright If You Don’t Want to Sue?” (Brief aside: initial caps? ugh…)
Since the UDRP and domain names really dominate my practice, I’m mostly focused on the trademark part of intellectual property law. But I enjoy copyright as a field, and it’s quite an active topic in the legal blogosphere and legal community on Twitter. This post got me thinking a bit.
The linked poster’s points are that (1) a registration can be helpful in dealing with infringement even if you don’t end up in court, (2) a registration can help you (as a content producer) with your contract negotiations… Continue reading
Gibson Guitar Corporation, a world-famous maker of guitars, recently won a preliminary injunction (sometimes called a TRO – “temporary restraining order”) in its court case against WOWWEE USA Inc., who make the “Paper Jamz” small replica toy guitars for kids. The order apparently instructs the retailers — including Wal-Mart, K-Mart, Target, Toys-R-Us, and even Amazon, among others — to remove the guitars from the shelves.
I wasn’t familiar with these toys, and I’m still not exactly clear on why you would buy a fake toy guitar like this instead of the real thing. But this Engadget piece discussing the lawsuit also points out that WOWWEE actually used the Gibson trademark in its “product literature,” which to me sounds like… Continue reading
Here’s an interesting case from the EU. Apocalyptica, or more likely their label, apparently claimed that their album was “featuring Rammstein.” In reality, the vocalist for the band Rammstein appeared on the record, but Rammstein never gave any express permission to use its mark for the guy’s solo appearance. Oops.
So the €45,000 lesson here is, always make sure that your advertising campaigns are using trademarks that you have obtained written licenses to use!
This is another reason why you should always have a trademark lawyer draft, or at least go over, your contracts. And I think it’s particularly important to have someone who deals with intellectual property – trademarks and copyrights – to handle the drafting, because I’ve seen… Continue reading
If you are entering into a business agreement, particularly when it is with a distributor in another country, your agreement should clearly address the prospect of the other party using your trademark in a domain name. This happens often, and it seems like the parties always forgot to specifically address domains, even though they will spell out the conditions on trademark usage. Why does this matter?
First, it’s just good contract drafting practice. Second, the UDRP will not save you from bad drafting, because even though you may have revoked your authority to allow the other party to use your trademark, and they therefore no longer have rights or legitimate interests in the domain name at issue, under the… Continue reading