Thursday, October 22, 2009

A Text Will Lead You

Good evening!

My Phillies are in the World Series. AGAIN! The Angels just defeated the Yankees to force a return to New York - my current home. But you never give up your teams. So I stay with my Phillies, and we have lots of Philadelphians here in New York making it big in the big city, so I never have home that far away.


Another week means it is time for another announcement. Text "avernalaw" to 50500 and you will receive my electronic business card. Do it right now if you are in the United States. In the "to" space, the number is 50500. The entire message is "avernalaw."

(Cellular phone company charges may apply.)

Do not forget to become a fan on Facebook at


There has been a great response to last week's announcement to the Intellectual Property Security System and to the Intellectual Property Self Survey - which helps with the first step in the system: Review.

Once again, if you have not asked for it, ask for the survey. It is a $600 value, which will go to you - my loyal readers - at no charge. It will help your company re-focus its intellectual property efforts. Send an e-mail to law@nyctrademarks and ask for the Intellectual Property Self Survey for your company.

What is great is that in the last week, I have received clients who are trying to focus on step two: Registration. You must register in order to receive all the benefits that the law provides.


We have all seen the "Hope" poster, with President Obama as the subject, that was created by Shepard Fairey. During the trial, Fariey admitted that he lied when he said he did not use the Associated Press' photograph as the inspiration for the photograph. Now the art world is up in arms about it.

I do not want a client who will lie to the press and then change his or her story when on the stand. It does not help the case one bit. Certainly, juries will not look happily upon a witness who changes his or her story - especially when that witness is one of the parties of the case.

I do want to look at this logically. This blog has tackled Fair Use before and I want to emphasize this: Fair Use is all about the work. It does not matter if Fairey used the original Associated Press' picture as inspiration or not. George Harrison was found to infringe a song even though he did not know he was writing a new song based upon the original work. If Fairey knows or does not know, the legality of the "Hope" poster does not change.

The original picture and the new poster are so similar that - purposefully or not - the picture has to be the inspiration for the new poster. The legal question is if the new work has transformed the original work so much that the inspiration was fairly used.

And that question is still very difficult to answer.

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Friday, October 16, 2009

You must follow the system.

Good day, everyone!

I was in Los Angeles last week for a seminar, and as soon as I returned to Newark, NJ, the cold weather hit me.

(Though I was staying in Santa Monica, where it is colder because of the ocean.)

Last night was fun, as my Phillies played - and won - in the first game of the National League Championship Series. Today's game is a 4 PM Eastern start, so it looks like baseball fans have to cut the work day short to watch the early game. That's the conundrum for baseball - the 8 PM playoff games end late, but the early games do start early. So, what is baseball to do? It, so far, has been putting the Yankees-Angels game late - New York and L.A. - as it knows the Yankees get ratings. But it still inconveniences a lot of people who are fans of the Phillies and Dodgers (especially a 1 PM Pacific start on a weekday).

Lots of my clients have conundrums, too.
  • What do I do when my trademark is registered?
  • Do I need to continue with the trademark opposition proceeding that has been filed against me?
  • Do I need to register? (You already know my thoughts on this from being loyal readers.)
It's here where I'd like to introduce a few new items:
1) The Intellectual Property Security System. There are four simple steps to the system - Review, Search, Register and Monitor. I can lead you through all these steps to help you and your company protect its intellectual property better. Call me at 212-736-0007 x4 and ask me about the Intellectual Property Security System.

2) A part of the system is our Intellectual Property Self Review kit. It's a fantastic kit that is developed for companies to help re-focus and understand their intellectual property. Companies, with the review kit, will be able to clearly understand what intellectual property they have and the importance to register each piece of intellectual property. This is a kit with a $600 value - it is what we sell it for - but because you are all loyal readers of the blog and newsletter, I am willing to give it to you at no charge. Just let me know that you read the blog or newsletter. Call me at 212-736-0007 x4 and ask me about your free copy of the Intellectual Property Self Review Kit. We'll mail it out to you.


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Recently, a judge in New Jersey ruled for a company in a trademark infringement lawsuit and awarded $570,000. What that tells me is that there is an importance for the last step in the Intellectual Property Security System - Monitoring. Many companies believe that it is acceptable to register the IP and go on with life. In fact, that is only a part of the solution.

Intellectual Property owners must monitor their marks in order to see how it is being used in our large, complex modern world. Is it on the Internet? Is someone speaking poorly of those marks? Is someone co-opting your mark? If you are not monitoring your trademarks, you do not know and you miss out on the ability to enforce the rights you are given by registering your mark that is in use.


In the Republic of Ireland, the Church of Scientology lost a trademark battle to a company called Prosperity Recruitment, which is an advertising recruitment agency.

I find it funny because of one of the quotations: Prosperity Director, Gary Mullan said: “It is amusing that an Irish recruitment company’s services could be considered to be a close match to the goods and ’services’ described by the Scientologists”.

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