Year: 2018

How can two typestyles appear identical without constituting copyright infringement?

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In the United States, a typeface, that is, the design of a letter style, the way the letters appear, is not protected by copyright. Hence, a letter style may be designed to look like an exact duplicate of another without infringement. However, a font, that is, the unique underlying software code that allows you to print a particular typeface, is protected. This has long been the position taken by both the US Congress and the US Copyright Office.

The group Georgia Lawyers for the Arts in an online article posted February 10, 2014, explains it this way:

“A typeface is a set of letters, numbers, and punctuation marks whose forms are related by repeating certain design elements that are consistently applied. Put more simply, typeface refers to the way a set of letters or numbers appears… A font, on the other hand, is the computer program that tells the printer or computer display how a letter or character is supposed to be shown. In the United States, fonts are protectable under copyright law. Typefaces, however, are not.”

Similar typefaces may be similar in appearance. Two typefaces may even appear identical. But if they are each based on their own unique digital code, there is no copyright infringement in the US. A copyright infringement occurs when someone, without permission of the original author, copies a font file, which is actually a small software program. A font file is protected as an original work.

Interestingly, the name of a typestyle may be protected as a trademark.

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Is it always an infringement to use someone else’s trademark?

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No. Because ownership of a trademark is not absolute. Just as the fair use defense exists in US copyright law, there are times when the use of a trademark without permission from the owner does not constitute infringement.

The purpose of a trademark is to identify the source of goods or services. It is to prevent consumer confusion in the marketplace. However, as noted by New York attorney Brian Farkas at the website, NOLO, “the use of a trademark does not necessarily qualify as an infringement if the user is not using the trademark as a mark.” (italics added)

When You Don’t Need Permission to Use Another Owner’s Trademarks

He states that “if you use the mark for informational or editorial purposes to identify specific products and services, or if your use is part of an accurate comparative product statement,” it could be fair use. He also gives some good examples of such fair use.

Further, use of a trademark in parody can be considered fair use. A photographer’s use of the Barbie mark was acknowledged as fair use by the Ninth Circuit Court of Appeals (2003).

Mattel Inc., a Delaware Corporation v. Walking Mountain Productions, a California Business Entity…, 353 F.3d 792 – CourtListener.com

Common logo design oversights

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Many believe that good logo design is only a judgment call. That there are no rules. Yet it seems reasonable that there are basic principles that, generally, should be followed for a design to be effective.

Jason Li, a co-founder of TomYum, a design firm based in Toronto, made some insightful comments on this subject. See if you agree.

Jason Li on good logo design

 

 

View at Medium.com

View at Medium.com

Trademark registration—How long does it take?

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How long does it take to receive a trademark registration once you apply for one to the US Patent & Trademark Office? According to trademark attorney Erik M. Pelton, “Each application is unique. No one can guarantee the outcome or the timing.” However, as he explains on his website, “the vast majority take somewhere around a year to reach registration or a final disposition.”

The process can be affected by many factors. For example, how skilled is the attorney handling the process? As with many professionals, expertise can vary from person to person. A seasoned trademark lawyer should be able to produce a well-crafted trademark application that would minimize the chances of triggering what is known as an “Office Action” from the USPTO. An Office Action signals an obstacle in the approval process or the application. An experienced attorney will not only be able to reduce the odds of an Office Action occurring but will know what to do when one does.

An example of an obstacle in the approval process may be a “descriptiveness finding.” The USPTO may refuse a trademark application if the trademark is deemed “merely descriptive.” A good trademark attorney can help avoid this finding at the very beginning by giving advice on the client’s choice for a mark. If a descriptiveness finding does occur, the attorney can then give advice on the options available for a response to the finding—along with, possibly, an estimate on how much additional time and cost could be added to the process.

Another obstacle that can seriously delay the registration process, and add greatly to its cost, is a third party challenge to a trademark application. Just how long a delay is possible is illustrated by the case of the Washington Redskins football team. A trademark application for the name was filed in 1992, but due to a series of legal challenges and appeals, the application did not receive approval till January of this year, more than 25 years later. Granted, this was an exceptionally long period of time for a final disposition to be reached, and ultimately it took a US Supreme Court decision last year that paved the way for the legal challenge to the Redskins’ trademark registration to be ended, but it illustrates how long the process can be when serious obstacles arise.

There are various types of trademarks. Some are more difficult to protect than others. A descriptive trademark is inherently weak, at least at first, because it may sound generic. The Weather Channel is an example of a descriptive trademark. Cartoon Network is another. Descriptive names may eventually gain strength and be protectable as trademarks, but it may take time and aggressive marketing. This type of mark must acquire a strong “secondary meaning” beyond its generic meaning for it to be effective as a trademark. A trademark attorney will know this and may even advise against a descriptive mark.

Another type of trademark is called arbitrary. It may have no apparent connection to the product or service it represents. Examples: Exxon, Kodak, Apple. Arbitrary names can gain great strength and be quite protectable. And while it may be relatively easy to obtain a registration for an arbitrary trademark, it may take time for it to become familiar enough to the public to be immediately associated with the product or service.

A type of trademark that falls between arbitrary and descriptive is called suggestive. Suggestive trademarks are somewhat descriptive because they are revealing, but usually in a creative way. Here are some good examples: Youtube, Groupon, Netflix. Some trademark attorneys feel that a suggestive trademark is best, especially for smaller businesses that do not have the time or money to spend on a large marketing effort.

In the final analysis, though an attorney can help avoid pitfalls in a trademark registration process, thus increasing the odds for an approval, as well as saving time, no one can predict with certainty how long the registration process will eventually take. Or even if it will be approved.

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Erik Pelton: Why suggestive trademarks are best.

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Erik Pelton is a trademark attorney practicing in the Washington, DC, area. He is also a former examiner for the US Patent & Trademark Office.