Yes, You May Do It By Yourself, But Can You?

You always have a right to represent yourself.  Whether in court, doing business, or what have you.  You may have the right, but the question is if you have the ability.

Let's take our latest example.

A fellow decided to use Legal Zoom to setup a company and then do a trademark. Legal Zoom is cheap after all.

Legal Zoom tends to give you (most of the time) what you pay for, and nothing more.

So he had Legal Zoom form Company X LLC.  It now exist in the state and is in business.  Easy enough.

But he then had Legal Zoom do a trademark application for him, and for some reason that has never been explained,  the trademark application was created with the owner of the mark not being Company X LLC but a Corporation Y Inc. He claims they told him the application would be more likely to succeed if he used the name Corporation Y Inc for the application, but that makes no sense at all.

This is not a minor error, the name of Corporation Y Inc is impressively different and distinct from Company X LLC.  Incs and LLCs are not the same thing either.

Corporation Y Inc does not actually exist.  That is, as you may guess, a problem.

On top of that, he or they or both of them together also screwed up the application in regards to the specimen required for the trademark, which suspended the trademark processing.

So I get hired to fix the specimen problem and was not told of the ownership problem - of course not, why would anyone bother telling me that? - I found out about that after I was hired.

As soon as I find out, I point out the issue and ask what the heck is going on and the client has no proper answer other than he claims Legal Zoom told him that's how the application should be done.  I note that fixing the ownership problem is a separate issue and needs an additional filling fee to the trademark office to fix as its a different matter altogether and a different correction you can't do at the same time you fix the specimen. 

Since I fixed the trademark specimen screw-up,  the application is going to be approved and the trademark issued - in Corporation Y Inc's name.

Client doesn't seem to understand,  nor does he want to listen, that yes, he needs to fix this problem. 

He doesn't get that he also needs to pay more to fix this, or that he will get a trademark that he applied for and will be issued a trademark that will be owned by a non-existent company which as a result would have zero value.

Much ToDo About Nothing

BGR.com: iOS developer is threatening to sue Android devs for using the word ‘ToDo’

A developer that creates apps for Apple’s (AAPL) iOS platform has threatened to sue an Android app maker for using the word “ToDo.” Appigo has sent a letter to an Android developer regarding his Star Trek ToDo Agenda app. In the letter, Appigo notes that it owns the trademark for the word “ToDo” and the developer’s use of the word is “likely to cause customer confusion to our existing and potential customers.” The problem with all this, as David Ruddock of Android Police points out, is that Appigo’s trademark happens to be for the Spanish word “Todo,” and not a fanciful respelling of the phrase “to-do.” Ruddock explains that “had Appigo claimed ToDo [was] a fanciful respelling of To-Do, it would almost certainly not have received principle registration for its trademark until it had established sufficient secondary meaning.”

Yep, looking at Appigo's trademark registration, they did indeed trademark the word TODO (in all caps) with a statement that "The English translation of "TODO" in the mark is "ALL" or "EVERYTHING"."

Ooops, you really gotta hate cease-and-desist letters based on flimsy or in this case untenable legal support.

No, You Can't Trademark Michigan's Highway Signs

In Attorney General Opinion 7265 just emailed out today, Attorney General Bill Schuette states in his opinion that State Highway markers, being part of the public domain cannot be trademarked by companies or individuals to prevent their use by others to identify goods or services.

Because the State of Michigan, the creator of the design, placed the Michigan highway route marker design in the public domain, no entity can lawfully obtain intellectual property protection of the design under trademark or copyright law
.....
The corporations may continue to utilize the Michigan highway route marker design alone or incorporate it within another design. But they must “disclaim” any right or interest in intellectual property that does not belong to them. 15 USC 1056(a) (“The Director may require the applicant to disclaim an unregistrable component of a mark otherwise registrable. An applicant may voluntarily disclaim a component of a mark sought to be registered”). Any other individual or company is also free to use the design to promote commercial goods and services. In other words, the corporations may not exclude other persons and businesses from using the Michigan highway route marker design on the basis of trademark law because a design in the public domain generally cannot be made the subject of a trademark or other protection.

As such, cease and desist letters from companies claiming exclusive rights in Michigan highway signs can be safely ignored, and everyone is free to use the signs provided they do not claim ownership of the sign elements in their works.

This was a very thorough and well-written opinion (12 page with 10 pages of attachments), as we've come to expect from AG Schuette and his staff, and a needed corrective to the overreaching on the part of some companies.

Neither Wilful Blindness Nor Obtuseness Are Defenses To Copyright or Trademark Infringement

I have a client that came in with a complaint that both its copyrights and trademarks are being infringed on by a competitor. Adding to the fun, the competitor is a former sales manger that broke off and is now selling a similar line of products.

So I investigate and yep, the copyright and trademark infringement is pretty blatant, including taking photos from my client's website and then using the photos, many with the product trademark logos intact, on their site to claim the products are coming from them.

So I write a gentle yet firm nasty-gram to request they remove the infringing images from their website and sales brochures.

They write back claiming they're very concerned about such claims but they investigated and can find no infringing photos on their website and could we please point out the issues?

This should be fun.

So I go ahead and list their various trademark and copyright infringements evident on their site and even helpfully print out pages of their website to include with the reply showing the numerous infringements. Most of these photos are straight off my clients website and they even kept the same html tags in their code

Hilariously enough, one set of photos on their website is not only directly from my client's website, but depicts one of my clients current employees operating the product.

Kind of hard to claim a complete lack of knowledge considering the sheer volume of material taken. It's not a one-off oopsy, nor a use that could be considered fair use, but a wholesale ripoff that's going on and that is going to be stopped.

Their response to this current letter should be interesting.

Great Moments in Secretarial Typos

So I dictate a letter to an entity that is using my client's trademark (and business name) for their business name.

This is causing some definite issues, including the state applying the entity's worker's unemployment claims to my client and also creating lots of confusion for vendors, customers etc. My client has politely asked them to use a different name to end this problem but they continue in their wrongdoing.

So we begin with the firm yet polite cease and desist letter.

However, my secretary wrote the penultimate sentence as follows:

"It is our demand that you immediately decease and desist use of the "trademark" name.

I told her that was a little harsh.

After all, I didn't want to tell them to F-off and die just yet, nor that they had to kill themselves in order to stop their tortious behavior.

That comes after we file the complaint.....