Teleseminar - Trademark & More 101

On Saturday, January 22 at 12:00 PM Eastern, I will be hosting a teleseminar with Diane Kennedy, CPA on Trademarks & More 101.

Visit http://www.dianesseminars.com/ to sign up for this teleseminar. Yes, you can listen and participate from the comfort of your own home at your own phone.

Listen to what a trademark is, how they are registered, and how trademark law can affect your business.

Diane Kennedy, CPA, will be talking about tax consequences for your business.

We look forward to having you join us - virtually.

Sign up at http://www.dianesseminars.com/ to get the phone number to call in.

Trademark Seminar!

Announcing. . . Kravitz & Verna LLC.

And how best to announce a new law practice than to do it with a series of seminars.

Take a look at the first of this series here:
http://events.linkedin.com/Trademarks-Small-Business/pub/458307

Our first seminar is on Trademarks for Small Business. It will take place at North Jersey Federal Credit Union.

North Jersey Federal Credit Union is located at 711 Union Blvd., in Totowa, NJ.

We will start at 5:30 PM.

Topics covered: Tuesday, November 9 for the seminar on Trademarks.

• What is a trademark?

• Why do I need to register a trademark?

• What is the registration process like?

• What common mistakes are made in trademark applications?

• How can I enforce trademarks?

• How are trademarks assets?

Thursday, December 2 for the seminar on Advertising.

• How advertising is affected by the various areas of law

• Truthfulness and claims

• Creation, Production, Placement and what agreements are needed with agencies

• Best business practices

Tuesday, January 11 for the seminar on Licensing and Copyrights.

• What is a copyright?

• What do I need to register a copyright?

• Why are copyrights important to my business?

• What is a licensing agreement? What can I license?

• What is a royalty payment? How can I structure them?

Tuesday, February 8 for the seminar on Promotion law.

• Contests and Sweepstakes Regulation

• How these regulations affect business

http://events.linkedin.com/Trademarks-Small-Business/pub/458307

The Four Items Most People Get Wrong in a Trademark Application

Many business owners believe they can save money by doing a Federal trademark application. But what they do not know are the pitfalls in filing the application themselves.

1. Incorrect Trademark. Yes, this might seem very basic – but many times, business owners register what they think their mark is instead of registering the mark that the business is using.

2. Incorrect Owner. People and corporations are different legal entities. Very often, a small business owner puts himself or herself as the owner of the trademark when it is the corporation who owns and uses the trademark.

3. Incorrect Date of First Use. What is the date of first use? It is the date that the trademark was used on any material related to the goods or services your company sells.

4. Incorrect Description of the Goods and Services. As a part of filing for a Federal trademark, the application must list the goods and services that a mark represents. This list must be complete. If the mark is not used in conjunction with any of the goods or services listed, then the registration is open to attack.

If any of these items in a trademark application is incorrect, then the trademark application or registration is subject to cancellation.

Fraud Upon the United States Patent and Trademark Office can be triggered by even an innocent mistake. If a trademark application is fraudulent, the trademark application or registration can be cancelled.

See an attorney to discuss all aspects of a trademark application – from what the mark really is, to who the owner is, to the first date of use, to the goods and services it represents.

Anthony M. Verna III, Esq.

Law Offices of Anthony Verna

law@nyctrademarks.com

(917)348-0108

Would you like to see this as a PDF to save and print? http://nyctrademarks.com/temp/wrong.pdf

Music - now and then

This was a good week.

I hope it was a good week for everyone else.

Now that Friday is almost ending, I hope everyone has some kind of relaxing weekend plans. Even if that means just letting your brain rest after a long week of work. (I know many of you out there had that.)

Can I share some music with you? I have been listening to and digging Raul Midon a lot lately. Yes, certainly, the classics of my playlist are R.E.M., Paul Simon, Tori Amos, The Clarks, Charlotte Martin, and Marvin Gaye. They still go round and round in my head, but Raul Midon has been taking up more and more space. Besides his being an amazing guitarist, I love the ups and downs that his songs record. It is always a personal journey through his lyrics, and his music mixes pop, rock, jazz, r&b, and latin beats.

Check him out. I know you will love it.

***

Speaking of music, there is a ticking time bomb in copyright law - that is the ability for musicians and composers to recapture their copyrights in music they make.

Music has always been treated as an exception to the Work-for-Hire provisions of copyright law.

This means that musicians are going to be recapturing their copyrights in about 2013. So, bands will be taking their music and selling their music directly. Yes, for all the musicians out there reading this who are not signed to a major label, you are already doing this. In fact, is this not what all businesses do? We sell our goods and services ourselves.

But, in exchange for keeping only a percentage, the major labels have better reach in sales and publicity than just the musician would.

So now those recording labels will have. . . a lot less music to sell.

Will the law change? Will record labels survive without these big back catalogues from the 1970s? It looks like they will have to churn out more current content that consumers can buy.

Do you have a copyright question? Call us at 212-201-5473.

***

Two years ago, ICANN (the international organization) started to test the ability to have Internet domain names be in alphabets outside of the usual Roman characters.

ICANN will begin to take applications for domain names to be in other languages and alphabets starting on November 16th. The first domains will appear live next year.

What does this mean from a trademark perspective?

It means a lot more websites to protect from trademark infringement and trademark dilution.

Let me give you an example. Your company has a website. Your company probably has several different forms of the website (for example, http://coca-cola.com and http://coke.com lead to the same place). If it does not, it should.

What happens if Chinese characters sound similar to "Coca-Cola"? Will the company want to buy all those domain names? Will the company want to police all those domain names for cybersquatting issues.

Can your company afford not to? http://nyctrademarks.com
***

If you are new to the list, do not forget to hit "reply" in your inbox and ask about your free copy of our Intellectual Property Self Survey, it is a $600 value which we will give to readers at no charge. Start a dialogue with us about your trademarks and copyrights.

Do not forget to read up on our Intellectual Property Security System. We can speak to you about it.

Do you have a question about copyrights or trademarks? Call us! 212-201-5473

Why Register?

The web seminars that I have been doing have been nothing less than fantastic.

One question that someone always asks is, "Why should I register my trademarks or copyrights?"

There are a few reasons for registering.

1. Public notice. In both a trademark and a copyright registration certificate, the owner of the intellectual property is listed. Trademark certificates are filed with the United States Patent and Trademark Office. Copyright certificates are filed with the Library of Congress.
2. Public descriptions. In a trademark certificate, the goods and services are listed. In a copyright certificate, a brief description of the work is filed, along with two copies of the work itself. The owner of the intellectual property is also listed.
3. Geography. All registrations are good in all fifty states and all territories of the United States.
   
4. Barriers to lawsuits. If a trademark is not registered, it is considered a common law trademark. The goods/services and geography of the mark must be argued in court if there is infringement. No infringement lawsuit can be filed on a copyright that is not registered. Should there be infringement before registration of a copyright, the copyright owner loses damages (statutory damages up to $150,000 and attorney's fees) and is only allowed to collect actual damages for the copyright infringement.
5. The power of federal law to help with damages in any intellectual property lawsuit comes only with registration.
   
6. Ease of cataloging. This is a thought that not many people have. If a mark or work is registered, then there is a number. Should the mark or work be sold or licensed, then it is easy to state in a contract what the number is and what the property is.

*****

People also ask me for examples in different industries. Here are a few.

• Syrup manufacturers are gearing up for a trademark dispute: http://www.nola.com/news/index.ssf/2009/06/snowball_wars.html
• Tony LaRussa (manager of the St. Louis Cardinals) and Twitter settle their trademark dispute: http://www.stltoday.com/blogzone/bird-land/bird-land/2009/06/tony-la-russa-and-twitter-settle-lawsuit/
• Intel and Psion settle their trademark dispute: http://jkontherun.com/2009/06/01/psion-intel-settle-netbook-trademark-infringement-case/
• The Naked Cowboy (owner of many trademarks) sues a station for trademark infringement: http://tinyurl.com/lldt3l

****

New Webinar on Thursday afternoon!

This will be a webinar on copyright and trademark law for small businesses. Learn what a trademark is. Learn what a copyright is. This is going to be a primer so that you're familiar with the terms and with the differences between these areas of intellectual property. Don't hesitate to protect your trademarks and copyrights!

Title: Copyright and Trademark Law for Small Businesses

Date: Thursday, June 11, 2009

Time: 3:00 PM - 4:00 PM EDT

After registering you will receive a confirmation email containing information about joining the Webinar.

System Requirements
PC-based attendees
Required: Windows® 2000, XP Home, XP Pro, 2003 Server, Vista

Macintosh®-based attendees
Required: Mac OS® X 10.4 (Tiger®) or newer

Space is limited.
Reserve your Webinar seat now at:
https://www2.gotomeeting.com/register/268310634

Another web seminar

Due to the success of this week's web seminar, and because I received some requests from people to do it again on a different day, I will be doing one on Friday, May 22 at noon (EDT).

1. Point your web browser here:
https://www2.gotomeeting.com/join/647724971

2. Use your microphone and speakers (VoIP) - a headset is recommended.


Or, call in using your telephone.

Dial 218-844-4920
Access Code: 647-724-971
Audio PIN: Shown after joining the meeting

Meeting ID: 647-724-971

Once again, we'll go over the basics of trademark and copyright law for small business.

Names Will Never Hurt Me

Good afternoon!

It's a wonderful spring day here in New York City. That means that there is a lot of strange intellectual property and entertainment law issues popping up. Let's take a look at a few of them.

If your business in the United Arab Emirates, "Dubai" can no longer be a part of the trademark. This is the first time I heard about a certain place being banned as a trademark. My guess is that there are too many companies with "Dubai" in the mark, rendering it almost meaningless as a trademark. This reminds me of two issues with trademark law here in the United States: 1) Having the name of a place in a trademark is difficult to register and 2) There are a few words or phrases that are not allowed to be a part of any trademark in the United States.

1) Having the name of a geographic location in an American trademark paints you into a corner. The first corner is if the goods/services come from that location - then the mark becomes descriptive of the goods/services. The second corner is if the goods/services do not come from that location - then the mark is misleading. If a client comes to me with a mark that has a geographic location, then I have to counsel that client accordingly.

2) There are some explicit words that cannot be used in a trademark. Today, that can be found as 36 U.S.C. §220501, which bans the use of the word the word "OLYMPIC" and other related words the United States Olympic Committee "owns" in non-USOC trademarks. Also, let me quote 15 U.S.C. §1052 here for other words that cannot be used in a trademark. A mark cannot "[consist] of or [comprise] immoral, deceptive, or scandalous matter...." So, if a mark has one of the seven words you cannot say on television, it will not get far in the registration process.

*****

Rapper Lil 'Wayne has been sued for using a song sample in one of his songs. Now, he is trying to go after the producer of the song for indemnification of those royalties and damages due to the infringement. He seems to have this problem again and again and it makes me wonder why nobody is making the clearances more quickly.

It is a simple process (though the paperwork does get to be plentiful when there are multiple samples that an artist has on an album), so I do not understand why those managing his music and his career cannot get the clearances once the recordings are made.


*****

When registering an Internet domain name, if a trademark is to be used, the domain name must be registered in "good faith." I am fairly sure that the owner of goldmansachs666.com is not a domain name in good faith.

If this situation does not fit into the domain names rules, then I certainly believe it falls under trademark dilution, which I have discussed before in this blog.

Seminar via Skype

Tomorrow, Thursday April 23rd, 2009 at 4 PM EDT, I will be doing a trademark and copyright law seminar for small businesses and artists via Skype. It will be in the form of a conference call. My Skype name is avernalaw, so add me to your list now and be online before 4 PM EDT tomorrow.

Topics covered:

• What is a trademark.
• How the trademark registration process works.
• What makes a good, strong trademark.
• What to do after a trademark is registered.
• What is a copyright.
• How a copyrighted work is used in other works properly and improperly.
• And many more.

Just log in to Skype, add avernalaw to your list, and I'll bring you into the conference call at 4 PM EDT when you log in.

We've been busy

There is a lot happening in the intellecutal property world.

First off, I have been making lots of appearances elsewhere.

• View an interview I did with New York Business TV on dead trademarks (bring them back to life). Just click on my picture on the right menu.
• You can find me quoted on a new ESPN article by Paul Lukas on sports uniforms.
• I also have two articles at Communicate Value, a blog that my friend Christine Gallagher writes on new media and businesses. There is a trademark basics article and a copyright basics article.

You can now find me on Twitter. I post two or three intellectual property thoughts a day. Click here to follow me on Twitter.

You can still become a fan of the Law Firm of Anthony Verna on Facebook and get extra updates.

The companies founded by Jimi Hendrix' heirs (his father and sister) are suing other companies for trademark infringment that sells other Jimi Hendrix-branded merchandise. In fact, one of the defendants was enjoined from using "Hendrix Electric Vodka" in a previous lawsuit. I find this suit fascinating, because it is a mix of different areas of law. One one hand, you have the trademark interests of the company that doles out the intellectual property of a celebrity who has been dead for 40 years and has not been creating anything new, but on the other hand you have a company creating its own trademarks that resemble another company's trademarks.

There are a couple of very interesting and different copyright infringement lawsuits. The famous one now is about the picture of President Barack Obama above the word "Hope" being modeled after an associated press picture. The artist answers that the nature of the use - painting the picture and placing the word below the face and using it in a political sense - is transformative enough to make it a fair use of the original photograph. It's a difficult argument in my opinion, because Fair Use is never an easy argument to make. It is a topic that has appeared here a few different times, because the guidlines of how much change is needed to transform a copyrighted work into a compltely new, original work is really not known. Here, the artwork is much more stylized than the photograph - the colors are completely different, and the contours of the face are brought out along with a red, white and blue scheme for the political arena. It's certainly not a photograph, but is it transformative?

Also, a local Brooklyn band is looking towards French President Nicolas Sarkozy for possible copyright violations - such as not paying enough money for use of a song from the band on Sarkozy's political party's website.

A video about my website.

Here is a video about the website for the Law Firm of Anthony Verna.  I hope that if you have any questions on how to use my website, this video will help you greatly:

Ch-ch-ch-changes

The NBA's Seattle Supersonics have moved to Oklahoma City and will play there from now on. The team's new name is not yet known. However, the NBA filed the applications for six different trademarks with the U.S. Patent and Trademark Office. Those names include Barons, Bison, Energy, Marshalls, Thunder and Wind.

What does this mean?

Apart from the name being chosen from one of these selections, not much. Filing a trademark application at this point in time only means that the NBA has a bona fide intent to use the mark in interstate commerce. This does not mean that the NBA is using the mark and, in fact, the NBA is unable to own a registered trademark until the mark is used in interstate commerce (and can provide proof). As you can guess, in trademark law parlance, this is called an intent-to-use trademark application or a 1(b) application, after the applicable section of law.

What makes this a little difficult to swallow is that the NBA does NOT have a bona fide intent to use five of the six trademark applications. Only one of those names will be chosen.

The U.S. Patent and Trademark Office does not review intent-to-use trademark applications for their good faith. Still, I am troubled because the attorneys for the NBA know that only one mark will be used and five of those six will not be used.

Thumbs Down

Does it seems as if fewer movies have received a the approval of two movie critics as "Two thumbs up"? That is because the phrase has not been in use since late 2007.

As many people know by now, At the Movies with Ebert and Roeper will be ending its television run, which started with the now-famous pairing of Gene Siskel and Roger Ebert in 1975. The pair of movie critics (now Roger Ebert and Richard Roeper) will most likely start their own venture in television.

As Ebert's statement on his website says, "We made television history, and established the trademarked catch-phrase 'Two thumbs up.' The trademark still belongs to me and Marlene Iglitzen, Gene's widow, and the thumbs will return."

Quite true. The trademark for "Two thumbs up" is owned by The Ebert Company, Ltd. and Siskel Productions, Ltd. How smart. Knowing of our own mortality, the two friends started shell companies (which is what they really are) in order to keep the trademark going, knowing its importance in the entertainment industry, in order to continue it.

There were varying reports, with Disney (the producer of the show) saying that Ebert wasn't allowing Disney to use the trademark while negotations on Ebert's role continuing and Ebert saying that Disney pulled the use of the mark itself.

Either way, I wanted to point out the intelligence of having two corporations own the trademark - as corporations can theoretically live on forever, while people (we know) cannot and I wanted to point out that, all too often, reports misidentify simple points of intellectual property. Looking back at the USA Today story, the report says that Ebert owns the "copyright" on "Two thumbs up," which is exactly what I heard this morning on the news - and my ears perked up.

Getting back to basics, it's quite simple. The trademark refers to some kind of goods or services in a business (in this case, "Two thumbs up" refers to, quite simply, "television programs and appearances in the field of motion picture critiques"). A copyright is a right in a work of art (usually) that prevents anyone but the creator from making copies.

****

An article in the Montreal Gazette - the main English-language newspaper in Montreal - discusses how the United States sees Canada lax in intellectual property protection. I found it to be a short, but interesting read.

Broken Dreams

Imagine that you are a big fan of a presidential candidate and that you wanted to show your support for this presidential candidate. What would you do to show that you are a big supporter? Wear buttons? T-shirts? Show up at rallies? How about print t-shirts with the candidate's name on them in the fonts of various baseball teams.

There was a website set up by a Barack Obama supporter called obamaofdreams.com that did just that. On the site, various t-shirts came in the styles of Major League Baseball teams. According to the creator of the site, Morris Levin (scroll down to see the reference), “One of my underlying goals is to marry Obama with mainstream culture through baseball, and I’d like to think that everyone here can appreciate the results, regardless of your political affiliation."

The website, however, is now closed.

What happened? Quite simply, an attorney contacted Levin contending that Levin violated the league's trademarks.

Before you continue reading, please click on the last link to take you to thesmokinggun.com's article on the site (it also has a few examples of the t-shirts). Did you read it? Good.

Thesmokinggun.com brings up two different thoughts without probably realizing it: 1) distinctiveness of trademarks and 2) transformation of trademarks.

Both ideas in trademark law underscore the biggest philosophy - consumer confusion. Consumers must be able to understand the source of goods and services and the quality of those goods or services - else trademarks fail as a system.

Here, if Levin's t-shirts are so transformative that consumers can tell that one of the t-shirts does not come from a baseball team - even if the marks used are so distinct - then it can be argued that his marks do not infringe or dilute the trademarks of baseball teams. On Levin's side is that certainly, baseball teams do not routinely print t-shirts of political figures in their own fonts. On baseball's side is that the marks are so distinct that those fonts are only representative as a source of goods from a baseball team. Plus, baseball teams make t-shirts (as well as many other kinds of clothing). It's a difficult argument, but there arguments for both sides.

One other issue - is a font a trademark? Generally, I would answer that a font is not a trademark. However, many of these teams have operated for many years using the same font and the same (or similar) colors. At some point, those fonts are associated with that team and with that team only.

Red Hot Trademark Infringement. . . or Not

This is the first post of 2008. I wish everyone is having a happy and healthy 2008.

Several months ago, the Red Hot Chili Peppers sued Showtime Networks and others in relation to the television show, "Californication."

Click here for a copy of the complaint.

There are two important sentences from the story linked above: The complaint alleges that the composition entitled "Californication" and the album achieved "extraordinary critical and commercial recognition."

"'Californication' is the signature CD, video and song of the band's career," band frontman Anthony Kiedis said in a statement. "For some TV show to come along and steal our identity is not right."

The complaint poses one important question: Can a band release an album or song that is so successful, that it defines their career as a trademark?

Frankly, the answer is, "No."

To understand this, the purpose of trademark law needs to be remembered. Trademarks exist in order to show that goods/services come from a certain source and have a certain quality. (And, yes, that is a link to Wikipedia. I reviewed it and think it is good for an overview.) Does the title of a CD show the source of goods (the goods here are the songs on the album) and the quality of those goods?

Again, the answer is, "No."

Why? Philosophically, the trademark is the name of the band. The Red Hot Chili Peppers have a different sound than R.E.M., who has a different sound than Bruce Springsteen, who has a different sound than Jay-Z, who has a different sound than Reginald Dwight (er. . .Elton John).

How to describe the Red Hot Chili Peppers music? Billboard magazine does it well. Looking at some of the discography of the band, album titles such as "Freaky Styley," "Mother's Milk," and "Blood Sugar Sex Magik" highlight the earlier part of the band's career while "Californication," "By the Way" and "Stadium Arcadium" highlight the latest part of the band's career. While "Californication" was the best-selling album for the band, "Blood Sugar Sex Magik," was probably the album that put the band on the popular music map (and probably marked a turning point in their sound due to the popular slow-tempo song, "Under the Bridge").

All the albums show characteristics of the band's style. The style, too, has changed over time (probably because of the numerous personnel changes in the band - which brings to question if band names should be trademarks themselves). The source of all the songs on the albums is the band. The quality of all the songs on the albums comes from the band. The quality is not represented by the album title, but by the musicians playing the song, bringing the products (songs) to the listener.

Coming from the legal perspective is similar. Personally, I have filed more than one trademark in the class of music recordings.

No title can be a trademark, unless the title is of a series of recordings. Then the trademark applicant must show that the musician controls the quality of the recordings, such that the name has come to represent an assurance of quality to the public.

Evidence musst be shown that there is evidence of a series includes copies or photographs of at least two different CD covers or similar packaging for prerecorded works. Evidence that the name is recognized by others as a source of the series includes advertising that promotes the name as the source of the series, third-party reviews showing use of the name by others to refer to the series, and/or declarations from the sound recording industry, retailers, and purchasers showing recognition of the name as an indicator of the source of a series of recordings.

Evidence of a series includes copies or photographs of at least two different CD covers or similar packaging for prerecorded works. Evidence of control over the quality of the recordings and use of the name includes licensing contracts or similar documentation.

Ultimately, "Californication," while a great height in the band's career, cannot be a trademark for the band as the band's name itself would be the mark.

*****
As for the next installment, I've been receiving a few e-mails and will answer your questions - just send an e-mail and ask away.

When is a trademark "descriptive"?

I'm steamed a little bit.

I have a client who has "24 7" as a part of several different trademarks. Two of them were recently rejected and (partially) one was because "24 7" is descriptive of "continuous."

It's hard to disagree with a part of the statement, but a consumer has to make what is called a multi-step logical thought process in order to go from seeing "24 7" to knowing it means "24 hours a day, 7 days a week." Also, I was unable to find any other trademarks with "24 7" that were rejected because "24 7" was deemed to be descriptive as "continuous."

Remember, in trademark law, the best mark is one that has no elements of the product - in other words, one that does not describe the product.

Let's take a quick look at two marks that registered today - EZ-COROSA and EZ-HYPERIC - and a quick look at a mark many commuters know - E-ZPASS.

Is not "E-Z" just a description for "easy," or "simple," or "facile"? E-ZPASS represents a system to make payments at toll booths easy, right? The goods/services description reads "services provided to travelers; namely, collection of tolls using an electronic system to expedite passage of such travelers through a toll facility." In other words, it makes paying tolls easy! (The mark is too old for the USPTO to store all its paperwork on the USPTO website, but you can see that the mark was never rejected!)

EZ-COROSA and EZ-HYPERIC both come from a Danish company for selling dietary supplements. Hmm. Is this because the goods both marks represent are to make our lives easier? You'll find phrases like "preparations to promote digestion," and "weight-reducing and meal replacements mainly consisting of processed cereals," and "nutritional supplements and food supplements for medical purposes...." In other words, yes, they're to make our lives easy.

So if a part of my clients' mark that has "24 7" is descriptive of "continuous," why are all these marks not descriptive of something that is easy when they all contain something that sounds like "Easy" in the marks?

Apple has a new trademark.

According to a story on MacsimumNews.com, Apple has registered "NUMBERS" as a trademark.

"Numbers," so say the rumors, is going to be the name of Apple's new spreadsheet software for a new suite of office software for the Mac. The article deals with Apple's European trademark filings, so a look at the U.S. Patent and Trademark Office database reveals that "NUMBERS" is Published in Class 009 (which is where computer software is classified - as electrical and scientific apparatuses) for the goods and services of "computer software for home, education, business, and developer use."

Unlike the European applications, Apple is only claiming software but also claims what is called priority. This means that Apple is basing this trademark application not only on its own use of "NUMBERS" in the United States, but also on an application in another country so it can have the filing date and details of the earlier application. In this case, it is Malaysia. That means Apple is most likely going to try to apply "NUMBERS" in the same classes and same goods as it is in Malaysia (like Apple is doing in Europe).

Also, the U.S. application for "NUMBERS" has no date to indicate the first use of "NUMBERS" in commerce. That is because there is no date that Apple has used "NUMBERS." This is called an intent-to-use trademark application.

Apple has filed based upon its intent to use it in for the goods and services claimed in the application. When this trademark is allowed (the trademark registrant receives a Notice of Allowance from the U.S. Patent and Trademark Office), Apple has six months to show that the company is using the mark in the goods and services claimed. After that period, the trademark may be registered.

Dale Earnhardt Jr. does not own the trademark in his own name.

According to the following story by ESPN's Darren Rovell, NASCAR driver Dale Earnhardt Jr. does not own the trademark in the name everyone calls him - "Dale, Jr."

http://sports.espn.go.com/rpm/news/story?series=2&id=2480863&lpos=spotlight&lid=tab1pos2

What is shocking to me is not the consent form that Dale, Jr. signed - but that the rights in the "Dale, Jr." trademark went into the estate of Dale Earnhardt, Sr. This means that Dale Earnhardt, Sr., somehow owned the trademark of "Dale, Jr." Was RDE Administrative Trust some kind of sole proprietorship that Dale Earnhardt, Sr. ran? (In most states, a sole propietorship dies with the death of the owner, and all assets are turned into a part of the estate of the deceased.)

This is a situation where a trademark would be worth millions of dollars, and should be owned by a corporation. This way, death would not cause the kind of transfer of a trademark that has been seen in this situation. The corporation would continue to exist and the mark would rest in there.

There are too many strange agreements in this situation for me to be comfortable, also.

If this were someone who had never been around trademarks and a business situation, I would not be surprised. (A 19-year-old and his mother visited my office last week about a copyright infringement case - their lack of knowledge did not surprise me.) This family, though, should know better. The Earnhardt family knows or should know the value of the family name, having been around NASCAR for so long. They also know or should have known that two drivers have different ownerships of their own names. I am shocked and surprised at the lazy way the value of the names (which is what trademark law provides) were protected. It seems as if the mark was not protected well at all.