Preserved Topic: Copyright/Trademark Tangent

Not trying to pick on you here at all, tomeaglescz, but I feel compelled to address some misinformation, which leads too often to copyright/trademark violations...

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As far as i know, text alone cannot be trademarked unless...

1. It is placed in a colour scheme which when used in conjunction with that text would lead someone to believe that your image was attributable to someone else.

2. Also it would have to be identically replicated in some form, ie font,style colouring in such a way that you would automatically associate it with a company

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Phrases (text) alone can, and very often are, trademarked. Registration of phrases involves what is termed a "typed drawing," in which only the text itself is registered, with no stylistic attributes. (Don't let the use of the word "drawing" mislead you.)

Replication of any associated style used with a trademarked phrase is not a requirement to be in violation of one's trademark when the trademark is only text. So, yes, using "You've got questions, we've got answers," regardless of the font or color would be a violation of RadioShack's trademark. (And don't fool yourself into thinking that simply changing the punctuation would vindicate you.) Additionally, it is of no consequence how many other people use that phrase ? you would be in violation along with the rest of them, if they too use it as a slogan.

(Understand that simply using the phrase is not a violation; you can't keep people from forming the words "Just Do It" in literature. But as soon as you associate that phrase with a product or service, you are in violation.)

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1.copyright or patent (pretty much the same thing when applied to text in law)

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Patent is something entirely different and has no bearing on this discussion. Patent applies to protection of inventions and processes.

If, however, you meant that copyright and trademark are the same when applied to text, that is entirely untrue. Copyright and trademark are very different beasts. Trademark is the protection of an identifying mark or phrase in association with a product or service. Even single words can be trademarked. "Sprint," for example. You would never be able to use the same word in association with another communications service. However, their trademark does not prevent you from using the word in literature and you cannot copyright that word alone.

(On a side note, it is possible under some circumstances to both copyright and trademark a logo, although each applies in different ways as it is related to its creator and to its representation.)

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if i write a book and someone rehashed the idea using different text then thats gonna be a bitch to win

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There would be no question of winning, because there would be no violation of anything. You cannot copyright ideas, no matter how original. You can only copyright a fixed expression of ideas (i.e. your written description of such).

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...but IT WOULD have to be proven that the person copying it was trying to do one of the following.

1.copy material or idea for personal or financial gain
2.Make financial benefit from that act by alledging thrugh that portrayal of text that they were the original author.

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Wrong. The copying alone is the violation, regardless of intent. By your rules, I could take Michael Chrichton's latest book, copy it and hand it out on a street corner for free.

Financial gain plays no part in copyright violation. This is the most widespread myth regarding copyright. The only part that a violator's financial gain would play in a copyright-violation suit would be the effect it would have on the copyright holder's compensation.

Copyright protects people from more than monetary loss. If you violate my copyright over a work, you can also cause me trouble with my agent, publisher and models used in any related photographs.

To repeat this point, you violate a copyright whether or not you do so for financial gain.

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just by merely placing words by a graphic would not count as illegal, unless one of the above scenarios was in fact true.

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Getting back to trademarks, you can indeed be in violation simply by using a phrase as a slogan when that phrase has already been claimed as a trademark by another party.

Again, I'm not trying to pick on you, tomeaglescz. But, the requirements you listed for trademark/copyright violation seemed to be plucked from the ether and could potentially get someone in trouble.

Information regarding copyright and trademark can be reviewed at the following sites:
http://www.copyright.gov
http://www.uspto.gov



Unusual Texas travel. (A little Google bombing doesn't hurt.)

~applauds~

For a functional reason why Wes' advice is so damned pertinent to those reading:: By the standards laid out before, it would give free reign for people to completely peel a website or work of art from you or anyone creating it, and then post it as their own or use it on their site or in their portfolio in any way they chose, as long as that piece didn't result in personal, monetary gain.

Think about the ramifications of that: If someone chose to take a painting of yours, photograph it, and put a signature in the photograph corner, they could fully claim the work as their own, as it's merely a remixing of media using your creation.

No good.

The models' rights mention is a great example too. People can get themselves in quite a bit of trouble for using models or products that they don't have releases for. Whether they make a monetary gain or not. Quite a few sites and creators have been shut down for infringing on people and products without consent or release from those involved.

Again Wes...~applause~

And for the record, the FAQ works
http://faq.ozoneasylum.com/FaqWiki/shownode.php?id=285&sortby=rating




[This message has been edited by DarkGarden (edited 12-16-2002).]

Wes: Thank you for the very informative discussion. If I could waste a few more minutes of your time, though, I'd like to ask a question to clarify.

In your discussion above you stated that you can't prevent people from using a phrase in literature, etc., "but as soon as you associate that phrase with a product or service, you are in violation." Now when you say product or service, does that include the Ozone Asylum FAQ? Normally I would think of "product or service" as something offered or performed in return for compensation, but you also said that trademark protection has nothing to do with making money, so I'm guessing that "product or service" is a bit broader than what I'm thinking of. I'm not sure where one would draw the line, though--could you give me a more precise definition?

I'm not trying to be a pain in the neck, it's just that I am a bit uninformed in this area and I'd like to understand how things really work. A quick search on Google for "you have questions, we have answers" turns up numerous instances of this phrase in connection with various FAQs. Am I correct in assuming that, if the graphic in question is indeed infringing on Radio Shack's trademark, then all of these pages are also infringing on that same trademark? If not, could you explain the difference?

Again, I just want to tell you how much I appreciate you taking the time to set uninformed, wayward souls straight on this issue. I hope you take my questions in the spirit they were intended.

[Edit: Eh, OK, so it was a few questions...]

[This message has been edited by Suho1004 (edited 12-16-2002).]

Well, at least in germany, a trademark is not only defined by it's 'text' but also by what it marks. There are serveral hundred groups,
and while AMD might have 'Athlon' for chips, there might be a wine called 'Athlon' as well, without violating their trademark (it might even be another trademark, for food stuff).

Is there something similar in the US?

from the site that you linked

What is a trademark?
A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.


however unless you dig into the site and read through it a lot i did . you dont actually find out that you can only trademark text if you use it only as text with no graphic.....


however by what the guidelines actually say someone else could create a graphic and add that text to it and claim trademark to it if in another of the many trade categories....

it would appear that your answer is more correct than mine, and thanks for showing that i was wrong, i certainly learned alot over this.

One thing that still remains pretty ambiguos is that if i for example created a logo, for a service which is not identifyable with radio shacks business, and added that text to it, i dont think that under the guidelines laid out by that website i would be in breach of trademark, as laid out in that site "text can only be trademarked if used purely as text!"
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so for example by adding one word "the" say as in this

"if you have questions, we have the answers" would solve all problems, i checked out the trademark site search engine and no match...


also:

What is a "typed" drawing?

To apply to register a mark comprised of word(s), letter(s), and/or number(s), with no particular stylization or design element included in the mark, you should select the "typed" drawing format.

For this format, the mark must be typed in all capital letters, as in the following example:

NOTE: Actual size would be 8½" x 11" (21.6 cm x 27.9 cm).



Applicant?s Name: A-OK Software Development Group
Correspondence Address: 100 Main Street, Any Town, MO 12345
Goods and Services: Computer services, namely on-line magazine in the field of business management
Date of First Use: January 15, 1995
Date of First Use in Commerce: May 15, 1995

The Mark:



THEORYTEC

so another question, the text can only be trademarked if used in capitol letters, cool so use of the same phrase in lowercase does not breach trademark


click here to see example

And TP You are correct there is the same system in the states....

Now we're getting into real details. It is possible to use a TM already filed by another party in conjunction with an unrelated product/service, but understand that the USPTO can reject it.

Also don't think that you can take a registered slogan and add a graphic to it and be free and clear. You are still using the slogan. (Just try to get away wth using "What do you want to do today?" just because you added a lightbulb to it.) Although, again, the product/service you associate with it may differ enough that it would be okay, but good luck.

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so another question, the text can only be trademarked if used in capitol letters, cool so use of the same phrase in lowercase does not breach trademark

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Wrong. You're severely misinterpreting the standard format in which the USPTO requires you to fill out registration forms as what is actually registered. It's the phrase that's registered, not the capitalization. Uppercase is simply how the USPTO requires you to fill out the paperwork. (A standard established, among other reasons I'm sure, to avoid capitalization being confused with stylization.) So, you won't get away with using someone else's trademark just because you write it in lowercase.

In any event, you'd better believe that someone with the means to register a trademark (which is expensive) will most likely have better legal resources than you to fight your use of it.

Regardless, one of the biggest reasons for having a trademark is to establish brand recognition, so why would you want to use an already recognized logo/slogan for your own product/service when it would just remind everyone of someone else? (That rhetorical question is not in reference to anything specific.)



Unusual Texas travel. (A little Google bombing doesn't hurt.)

wes i can see your point, but what i am trying to get across is trademarks (brand names) in unrelated commercial fields do occur, so as long as you are not in competition with someone, and not trying to infer that would you be in breach of a trademark???

next question, if you are using that slogan in an unrelated field, say here for example, and it in no way relates to anything to do with radioo shack, and do not intend on even trademarking such a logo, would there be an issue...

i can see your points very clearly and in a commercial sense you are correct... But this isnt a commercial project, or service, therefore the uspto wouldnt get involved...


i dont want to get into some bitching match, just simply answer the question that was mooted in the other thread..

Would use of that slogan, in an unrelated format be breach of trademark, the answer has to be no...

I believe I already have.

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But this isnt a commercial project, or service, therefore the uspto wouldnt get involved

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I don't believe the USPTO takes legal action against anyone. It would be the trademark owner who would come after you. They may not want their trademark diluted by other projects, commercial or not. And like I've said, they would have far better legal resources than you. (Incidentally, not intending to trademark something that's already trademarked doesn't make it okay.)



Unusual Texas travel. (A little Google bombing doesn't hurt.)

And for those needing legal representation in copyright/trademark issues, try my wife's firm - one of the largest IP (Intellectual Property) firms in the world - Rader, Fishman, & Grauer

My wife is currently working on an issue that's somewhat similar to what's been mentioned here: Sports Authority. Seems they go after everyone who uses the term 'authority' in advertising. It's quite interesting what they do.



[This message has been edited by Pugzly (edited 12-17-2002).]