Trademarks

Trademarks can be words or symbols used to distinguish goods and services of one company or of one individual business entity from another. They can be maintained in the form of text, graphics, and sound. Trademarks provide rights to the exclusive use of the mark as a representation of the company or individual with prior registration. Trademarks have no inherent value in themselves but derive protection on the basis of their ability to represent the value in the intangible quality of a company’s or individual’s goodwill. Goodwill comprises reputation, length of effective dealings with the public, good record of service or product support, or other ongoing positive associations with the public. Although goodwill is an intangible entity, it is treated as a tangible asset for purposes of accounting in tax law, contract for sale, and valuation for stock purposes. Trademarks serve to protect the trademark owner against others who might take advantage of the company’s goodwill (represented by the trademark) by marketing similar products with confusingly similar names. They also help the consumer choose products on the basis of the reputation represented by the trademark. The core issue is that one competitor is not allowed to capitalize on the goodwill of another.

The Federal Trademark Act of 1946, Lanham Act § 45, 15 U.S.C. §§ 1051-1127 ( 1946), commonly known as the Lanham Act, governs the law of trademarks, the registration of trademarks, and remedies for the infringement of registered trademarks. Many common law principles governing this area have also been incorporated into the act. The Lanham Act was passed to “simplify trademark practice, secure trademark owners in their goodwill which they have built up, and to protect the public from imposition by the use of counterfeit and imitated marks and false descriptions.” The Lanham Act’s definition of “trademark” was distilled from, and is consistent with, definitions appearing in court decisions both under prior trademark laws and common law. A trademark is defined in the federal Lanham Act as “any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.” Trademarks refer to goods and can be distinguished from service marks and collective marks. The Lanham Act defines a service mark as “a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others.” While a trademark identifies and distinguishes the source and quality of a tangible product, a service mark identifies and distinguishes the source and quality of an intangible service.

Registration creates notice against those who would import materials with a duplicate trademark, and after five years of registration, the trademark becomes “incontestable, ” providing procedural advantages in case of legal action. Federal registration also allows trademark owners to use a protected mark in a national arena whether or not they have immediate intentions to use them beyond state borders. Where two parties contend ownership in a trademark, the earlier registration also contributes to an assumption that the first registered party has rights in the mark.

When a business adopts a trademark, it should make a search to be sure that no other similar marks already exist or that the intended trademark is itself protectable. Some intended trademarks too closely describe a product that is created by more than one company and therefore cannot be used. For instance, the name “word processor” cannot be used as a trademark because it describes the characteristics of the product itself, produced by many companies; the trademark WordPerfect, however, distinguishes one kind of word-processing software from all others. Not only should a trademark be a distinctive identifier for a company or product, the chosen mark should not be substantially similar to a trademark that is already registered. The trademark should be registered early, before developing goodwill, and it should be used nationally as soon as possible to further establish the claim in its use. Remedies for violation of trademark registration can range from injunction to monetary damages for harm to a company’s goodwill.

Consult with an experienced business lawyer for advice on how to protect your business trademarks.

Defining Defamation

Defamation occurs when you say or publish or convey any information that harms a person’s reputation or damages a person’s standing in the community. That person can file a civil suit against you seeking compensation for the suffering caused by the defamation. There are two types of defamation: libel and slander. Generally slander is spoken defamation while written or printed defamation is libel. Of the two, libel is more serious for the simple reason that written or printed messages are permanent and are passed from reader to reader. Written or printed messages are more intentional. The courts generally award higher damages for libel. Consult with an experienced personal injury attorney if you are a victim of defamation. The person whose communication caused harm to your reputation can be made to pay compensation for the harm suffered by you.

The unconsented to and unprivileged intentional communication to a third person of a false statement about you which tends to harm your reputation in the eyes of the community is defamation. In a defamation lawsuit, the defendant can plead consent and privilege as affirmative defenses. If the defendant pleads such a defense, then the burden of proof is on the defendant. The law will presume harm to reputation if defamatory nature of the statement is obvious. In a defamation case, you must show that the defendant intentionally communicated a false statement about you to a third person and as a result of the statement, you are exposed a many things like public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace. Proving defamation requires skill and expertise. Leave it to the expert – an experienced personal injury attorney.

In a defamation lawsuit, you must prove only the intention to communicate something about you to a third party. You can file a lawsuit for defamation even the defendant intends to communicate to a third person but with no intention to defame or harm you. Even if the communication is negligently made, the defendant will be liable. So even if the defendant did not have any intention of causing any harm to you, you can still file a lawsuit for defamation. A person will be strictly liable for every intentional communication about you he or she makes to a third party if the communication is false and injures your reputation in the communication and you have not consented to the communication or the communication is not a privileged communication.

The principle is simple. You are responsible for the consequences of any communication you make about someone else to a third party. The courts generally consider defamation by radio, television or other mass communication media as libel. TV and radio have wide reach and you can imagine the consequences a defamatory statement made on a TV program can have on your reputation. Radio and television stations can also be held liable for defamation especially when it is possible to delete the defamatory statement before broadcast. Hire the services of an experienced personal injury attorney if you want to file a lawsuit for defamation.

What is Slander

The spoken defamation of character is known as slander. When someone speaks about you to a third person or persons and defames you character, then that person can be sued for slander. Victims of slander can file a personal injury claim. Seek the advice of an experienced personal injury lawyer.

Victims of slander can seek compensation for the damages and loss suffered because of the slander. There must be sufficient evidence to support the claim for damages. The victim must demonstrate the slander and the damages and losses suffered as a result of the slander. In a lawsuit seeking compensation for slander, the victim must demonstrate is that the statements of the defendant or defendants are incorrect or false. The statements may be oral or written. The victim must demonstrate the lack of any element of truth in the statements. All this will require the services of an expert – an experienced personal injury lawyer.

The victim must show that the defendant made the statement to another person or persons. You cannot seek compensation for slander if the statement was made by the defendant in a room where only you and the defendant were present. An important element of slander is that the statement made by the defendant must be heard by a third person or come to the knowledge of a third person. The statements must damage the victim’s reputation. The victim has to demonstrate that he or she suffered damage or harm as a result of the statements. For example if the victim is operating a business and someone made a statement about the business to a few regular clients who then stopped doing business with the victim because of the statement, then the victim can seek compensation for slander. In a compensation lawsuit for slander, the evidence of harm must be more than circumstantial.

Slander cases are complex to prove. You will need the services of an experienced personal injury attorney to prove slander in a court of law. The lawyer can help you get the compensation you rightfully deserve for the damages you have suffered as a result of the slander. Falsity and malice are two important elements of slander.

Skill and expertise are required to prove slander in a court of law. Hire the services of some who has that skill and expertise – a personal injury lawyer. The lawyer will review the case and fix the liability. The lawyer can also determine the losses and gather the necessary evidence to prove the loss suffered. You have to prove that you suffered loss or damage because of the false statement. In the absence of proof of loss or damage, you will not succeed. In many cases, the loss may not be evident but will require deep knowledge and finer interpretation of the complex personal injury laws to prove the loss in a court of law.

Slander can give rise to a personal injury claim. Even though there is no physical injury, the victim of slander can suffer financial or commercial injury. Victims of slander bear the burden of proof and have to prove their claim. The defendant need not prove a thing. All that he or she has to do is deny any wrongdoing on his or her part.

Getting Help With Intellectual Property Lawyers

If you currently own a business and you have a business attorney that you have on retainer you may want to ask your lawyer if he or she can handle this type of law or you may ask if they know any good intellectual property lawyers that they could refer you to. Intellectual property rights law is very technical and has many confusing facets, intellectual property lawyers will be able to take the head ache out of trademarks, copyrights and patents.

If you do not have a current attorney then you should start your search online or in your own local phone book as local intellectual property lawyers are equipped to help you with the red tape of intellectual property law. You should contact multiple intellectual property lawyers to see which lawyer’s credentials fit within your perimeters. You will need to research each layer before you take a meeting with them to see if they have a background in the sector of law that you need. When you start to meet with each of the intellectual property lawyers on your list you should ask many questions such as:

  • How long have they been a part of the state bar association?
  • If you need patent work does the lawyer have a license in patent law?
  • How much do they charge per hour?
  • How many cases have they had to go to court for?
  • Have they even been brought before the local state bar for a reprimand?
  • What type of legal associations are they a member of?
  • Have they handled cases like your case before?
  • If yes what was the outcome?
  • Can you speak to some of their references?

You should make sure that the intellectual property lawyers that you speak with have local offices. You should ask to take a look at the agreement that you would sign if you were to retain their services. If at any point you do not feel like the lawyer you are speaking to is what you are looking for you should tell them that you will call on them later to let them know if you will need their services. You should feel 100% confident in the intellectual property lawyers that you speak to or hire. This type of law can get very expensive and you need to make sure that the lawyer you choose is someone you will be able to work with for the duration.

 

International Law Lawyers

An international lawyer deals in international law. Amongst international lawyers, there are lawyers who deal in public international law and there are those who deal in private international law. Public international law generally refers to the rules that govern the relationship and dealings between nations. Private international law is a little more complex. It basically involved conflict of laws. As an individual, you may require the services of an international law on many occasions.

If you are opening a business in a foreign country, you will be subject to the rules of that country but as a US citizen or resident, you will also be subject to the American laws. In such cases, international attorneys can be of immense assistance. An international attorney can review the laws of the foreign country and advise you on whether they will conflict with the US laws. Sometimes the US may not permit its citizens to invest in a foreign country. It is therefore important that before you invest in a foreign country, you should seek the assistance of an experienced international attorney. An international attorney can advice you on whether there are any restrictions by US laws on your investment in that country. If there are indeed certain restrictions imposed by US laws, international attorneys can study the restrictions and advice you on your legal options. Sometimes, you may be able to legally overcome the restrictions by routing your investment through a third country.

International lawyers can also help you in litigation. Sometimes, you may have to file a lawsuit against a party that is not in the United States. In such cases, consult with an experienced international lawyer. The lawyer can review the facts of your case and advice you on whether you can file the lawsuit in the United States or whether you must file the lawsuit in another country. Likewise, sometimes you may be named a defendant in a lawsuit in a foreign country. An experienced international lawyer can assist you in such circumstances. International lawyers are generally members of various legal networks and as such they will have contacts and associations with lawyers in most countries.