In a July 30, 2008 radio interview (you can listen at http://www.tcchamber.org/programs/wef.php), Attorney Enrico Schaefer of Traverse Legal answered questions regarding the protection of intellectual property. The following is a transcript of that interview:
Welcome to the Traverse City Area Chamber of Commerce’s Entrepreneurial Focus, sponsored by the Traverse City State Bank. Now, here’s another success story with your host, Ron Jolly.
Announcer: Welcome to the Traverse City Area Chamber of Commerce’s Entrepreneurial Focus, sponsored by the Traverse City State Bank. Now, here’s another success story with your host, Ron Jolly.
Ron Jolly: WTCM News Talk 580. Welcome to the Traverse City Chamber of Commerce Enterpreneur Focus brought to you by the Traverse City State Bank, and every week we feature an actual entrepreneur, somebody who has gone out there, taken the risk and started their own business, created jobs in the marketplace, and continues to grow the business, and when we’re not hearing their stories every other week, we have experts in to talk about various issues in the business community, some free advice as we like to say. Today, Enrico Schaefer is our guest. He is an expert with copyright law, trademark and patents, and he is with traverselegal.com. We’ll meet Enrico Schaefer in a moment and talk a bit about that. If you have questions related to that in your business, you can call us today, too, with your questions. 947-0023 or 800-817-0580. We’ll be right back on the Traverse City Chamber of Commerce Entrepreneur Focus.
Welcome back to the Traverse City Chamber of Commerce Entrepreneur Focus. I’m Ron Jolly, and joining us from the Traverse City Chamber today, we have the Senior Vice President, Laura Oblinger. Welcome back, Laura.
Laura Oblinger: Thanks, Ron. It is going to be a very interesting show and I’m sure we’ll have lots of questions today because this is a really important topic. Every entrepreneur that we talk about comes in either with an original idea, an original product, something that they created, and this is one of the biggest things that sometimes gets overlooked, and we have our expert, as you had introduced, Enrico Schaefer, in today to help us with this.
Ron Jolly: Enrico Schaefer from Traverse Legal, on the web at www.traverselegal.com. Welcome aboard, sir.
Enrico: Thanks, Ron. Good Morning, Laura. It’s a pleasure to be here today.
Ron Jolly: Thanks for being here. We were talking, maybe the basics before we go, you have, what, copyright, patent and trademark? What are the differences, or how do they apply?
Enrico: Well, patents protect ideas, and when people have intellectual property, oftentimes they are thinking of patent protection, and so that’s idea protection. Copyright protects original works of authorship, which can be written words – a book, poem. It can be art; it could be a logo design; it could be lots of different literary items. A trademark is a brand, a word or a stylized design that’s used in commerce to indicate the source and origin of goods and services; that is to say, we know Microsoft means a company and that they sell computers, so Microsoft has a trademark on the word “Microsoft.”
Ron Jolly: So, probably, I’m guessing, the biggest area of growth or concern are ideas, are people wanting to get in there and protect. They had a great idea, they’re developing it, maybe they don’t want a large company that has the ability to come in and swoop down and steal the idea and implement it.
Enrico: Correct, and patents can protect ideas, and we do get a lot of questions about how do we protect this idea before taking it into the market, and the key thing that you need to know about patents is you must register your patent with the Patent Office within one year of publicly disclosing that idea in the market, so you have a very limited amount of time to file your patent in relation to the date that you start telling people about your idea.
Laura Oblinger: When someone goes into the marketplace with this idea, with this product, and they want to patent it, at what point and how do they find out if it doesn’t already exist, because it’s not just within your state. Don’t you have to determine, does this exist nationwide, worldwide?
Enrico: Absolutely. All of the different intellectual property items that I have described, trademarks, copyrights and patents, they are U.S. Government, they are federally protected, so a patent is a federal filing that is across all of our states, so you have do a patent search in order to determine whether or not your idea is, in fact, original, and that’s where a patent attorney can come in and help you understand whether or not you were first with the idea.
Ron Jolly: So, how long do you have to, how far do you have to be in the idea? What if, and this is a silly example, you are at a baseball game and sometimes the balls will come shooting into the stands and hit somebody, so you come up with a shield that you can see through, the baseball fan shield.
Laura Oblinger: Right.
Ron Jolly: Great idea, but not a really good idea, but it’s an idea. That’s all I have right now is that somebody ought to make that. Can I patent just that idea?
Enrico: Well, you would have one year from today, Ron, to be sure you got that filed, and yes, something like that is potentially patentable, and therefore protectable. It’s got to be original, it’s got to be novel, it’s got to be something that is truly new and not suggested by prior ideas or prior art.
Ron Jolly: So, then, I could come up with a name and call it “fan shield,” and I could trademark the name.
Enrico: The name, the brand, at that really is where most small business do start out in terms of their intellectual property protection. It is hard to come up with a novel idea that no one else has ever thought about before, so usually, as a small business or growing business, when you go out into the market, you are trying to protect some space around your concept, your business plan. And one of the easiest ways to do that is create a brand, name your product, and trademark that text, okay; and that will allow you to make sure that no one else can go into the market with a product that suggests something like Cherry Republic or some of the other great brands that we have around here, Hagerty, whatever it happens to be. And that’s how you can protect yourself in the market.
Ron Jolly: We have calls that we’ll get to in just a moment with questions for our guest today, Enrico Schaefer from Traverse Legal. One case Laura brought up before we went on the air, a couple of young guys have some beach wear and windsurfing stuff, and it’s called M22, is the name of the company?
Enrico: That is the name of the company, and that is the name of their brand.
Ron Jolly: And that’s the logo of the M22 highway, right? Do they share the same logo?
Enrico: They share a very similar logo, and those gentlemen are our clients, and we helped them create that brand and protect that brand in the market because we realized that in order for that to work we had to make sure there were no copycat t-shirts, apparel, etc. in the market for M22. They came up with the novel idea of turning that into a brand which identifies them as the source and origin of goods and services, so we were able to get that federally registered as a trademark and therefore protect their great, amazing business idea in the marketplace, so you’ll only see M22 gear around that is official M22 gear attributable to them.
Ron Jolly: But, doesn’t the State have some kind of intellectual property ownership of the sign or the logo, or even the name “M22?”
Enrico: No, because they’re not using it as a brand. The State is using it to identify a highway, and the novel idea, which was a great idea that was protected by trademark, not patent, the novel idea here was to use M22 and make it mean something more than the road sign, a way of life. You will see M22 gear all over the world, in countries all over the world, within two years of launch, because that logo, which is used now as a brand, is a trademark, means something to a lot of people.
Ron Jolly: Could I come along and do M16?
Enrico: Potentially, you could, if that was meaningful enough. Our client has filed for trademark protection across a number of very reputable highways across the United States in order to protect their model in those areas, as well. So, great idea, great brand, and very successful.
Laura Oblinger: It’s very interesting, because every time you see it, it is something you think about, again, certainly respecting the great idea, but how did they make that happen, so I appreciate that explanation.
Ron Jolly: From a business standpoint, too, if those fellows, or anybody in that position, someday want to sell, or if they get an offer from a large company, saying we want to buy M22, they are in good shape now because they have done all this legwork. It’s all protected already?
Enrico: Absolutely. They have created value for their company that is way above and beyond the gross revenue that they’re generating from selling products. And that’s what’s happening in the world today is that they say what is American going to do next? We can’t compete in manufacturing with third world countries, etc. And there are a lot of people suggesting that the U.S. will become the marketplace of ideas, that our great U.S. ingenuity will express itself in that way. And gentlemen like the gentlemen who did the M22 trademark will come up with great ideas, and eventually those things will be bought up by larger companies, and they now have something to sell.
Ron Jolly: We have to ask our guests to put on headphones momentarily here so we can hear our callers. Enrico Schaefer is our guest today on the Traverse City Chamber Enterpreneur Focus, expert in copyright law, patent law, trademark law. He is with Traverse Legal in Traverse City. They are on the web at www.traverselegal.com. Laura Oblinger from the Chamber of Commerce is in, and we have questions regarding some of the subject matter. Mark is in Traverse City. Good morning, Mark.
(Caller) Mark: Good morning. This is a great show today. I have a copyright question. I have purchased a number of color slides off eBay, and I would like make prints from them; not sell them, but prints for my own use, and some of them have photographers’ names on them. Does the photographer that took the pictures still have the right to reproduce photos from those slides?
Enrico: Yes, Mark. The original author, the person who actually took those photos, created those images, does have copyright protection on those photos, and unless you have a license from the person who is the copyright holder, then you may have a problem. So, that is a huge issue on the internet right now, because of course everyone’s photos are being made available on their websites. Those photos are being copied, those photos are being put into search engines, those photos are being used on other people’s websites. You do have to be very careful when you buy things off something like eBay that may have intellectual property rights that are either being violated or being sold along with the photos. Now, it might turn out that the person that sold them to you had a license from the author, the copyright holder, to use those, and then those have been transferred to you, but I doubt it.
Ron Jolly: And, if you wanted to, say, go to a copy shop type place to have those copied, a lot of those places won’t do that now. I think they have been informed of the law and they just won’t make copies of certain things.
Enrico: Absolutely. And they’ll make you certify, in many instances, that you have the right to allow them to copy that work.
(Caller) Mark: That’s great. That’s been a question in the back of my mind for a long time.
Ron Jolly: But, if you did it on your own machine and hung it on your wall, who would know?
(Caller) Mark: Sure.
Enrico: Your risk is low, but it is a great question that comes up every day.
Ron Jolly: Mark, thanks for the call today.
(Caller) Mark: Yes. Thank you.
Ron Jolly: Heather is in Indian River. Hello Heather.
(Caller) Heather: Hi.
Ron Jolly: Hi there.
(Caller) Heather: I have a music copyright question.
Ron Jolly: Okay.
(Caller) Heather: I’m a songwriter, and I’ve been trying to do a parody of a popular old Christmas song by using part of the music and part of the words, and I was denied by the publishing company; but after contacting a popular parody group, they said all I had to do was use all the actual music, but just replace all the words. And are they right?
Enrico: Well, that’s really not the test. The test is that, you know, the fundamental influence in copyright law is the First Amendment, and parody is protected under the First Amendment, and you may have an implied ability to write the song that you intend on publishing as parody. The company that you were dealing with that denied you the right to put the song into the marketplace might have concluded that your song was not enough parody to have First Amendment protection, but I would try another publishing company because parody is protected. You are allowed to, sometimes, in certain instances, you are allowed to use parody for certain purposes.
(Caller) Heather: The publishing company owns the rights to the original song, so I can’t get permission from another publishing company.
Enrico: Well, the question is, do you need permission?
(Caller) Heather: That’s what I needed to know. Right.
Enrico: And it depends on exactly what your song entails and how close it is to the original and the rest, so I would encourage you to contact a copyright attorney and have them listen to the song, listen to the original, and understand better what your use is intended to be, and then give you an opinion. You might be able to use that opinion with another publisher if it turns out that the opinion is that the parody is going to be fair use.
(Caller) Heather: So, is it better to keep it as close to the original as a parody?
Enrico: Well, the question is whether or not it is truly a parody, and that isn’t necessarily determined by how close it is to the original.
(Caller) Heather: Okay. Thank you.
Ron Jolly: Thanks for the call, Heather. If there is any possible likely confusion with the original, that would probably be bad for her.
Enrico: Well, it would be, And her use, if it’s going to be purely commercial to drive revenue, you know, one of the factors that they do take a look at is what is your intended use, and obviously non-commercial has a lot more leeway, a lot more implied permission, than if you were going to be looking to make money off it.
Ron Jolly: Okay. Back to the M22, somebody called and said wasn’t it taken from a highway sign. Yes, we covered that if you missed that. So they said it’s not an original idea, but as you said, the original idea was to make it a brand for their clothing and other accessories.
Enrico: Correct.
Ron Jolly: Then, I think the same person said, well if I take a picture of the M22 highway sign and I put in on a coffee mug or t-shirt, will that be infringing on the M22 business trademark and branding?
Enrico: The answer is, absolutely, yes, and the idea was protected by a trademark, not as a patent, and so there can only be one M22 business within the categories of wine, as there is also an M22 wine. Within the category of apparel, there is only one company that can now use that as an indicator of source, an origin, and that’s the folks at M22, LLC.
Ron Jolly: So, if I wanted to come up with a tire, and I had a different logo, I’d probably get away with being M22 Tires.
Enrico: You theoretically could, yes. When you register a trademark, you have to register that trademark within an international class, which is really a market niche, so you can have a Delta faucet and a Delta airline. Those two companies can coexist. Their trademarks can coexist because the ultimate test in trademark law, is there going to be a likelihood of confusion by consumers as to the source and origin of goods? And if you’ve got faucets and jets, no one is going to be confused.
Ron Jolly: Alright. We have another question for Enrico Schaefer from Traverse Legal. Jim in Bellaire. Hello Jim.
(Caller) Jim: How are you doing today?
Ron Jolly: Good, thanks.
(Caller) Jim: I was calling . . when does, say, a piece of literature or a speech, or something of that nature become public domain?
Enrico: Well, it becomes public domain when the author puts it into the public domain without protecting or asserting copyright protection, so there’s an awful lot of authorship that is put into the public domain without express copyright rights attached to it. When people blog in the blogosphere, they are putting their original content on line. It’s being fixed in a tangible medium, the internet, on a web page. But then the question becomes, you know, are they looking to protect that online or not, what is their copyright notice, do they have a copyright notice, are they putting a license in play and allowing the world to use it, etc.? Now, keep in mind that your copyright protection lasts 70 years after the date of your death, so these rights do extend for a long time. The biggest issue going right now is, what permissions are being granted when people put their works, their logos, their photographs, online? When you put a photo uploaded into Flicker, you know, are you granting permission to the world to use that photo, including for commercial purposes? You have to protect yourself by the license agreements and by the terms of use that you put in play.
Laura Oblinger: Has the use of the internet . . . it sounds like it has greatly changed your business. Did you have to go back and did your industry have to reformat some of the law because of the depth of the internet?
Enrico: Absolutely. There have been specific laws that have been passed, primarily by the U.S. federal government because of the internet. The Digital Millennium Copyright Act is a specific copyright statute that applies to copyrights in cyberspace and allows you to, as a copyright holder, to send a takedown notice to someone like Google or eBay, saying hey that’s copyright protected, and insulate Google from being liable, or eBay from being liable, for having that available on line. So, there is the Communications Decency Act, there are all sorts of statutes which are trying to govern this new media. But there is a traffic jam that has been created because of the internet within the intellectual property rights area.
Ron Jolly: How about when you link to something, like the Drudge Report is a good idea, where they will put up all these headlines from newspapers around the world. Say if you just wanted headlines, though, and say California Governor Arnold Schwarzenegger, link to the LA Times, click here, is that . . . I mean, he’s really sending people to the original source.
Enrico: He is, although that’s a really interesting issue, because the AP just sued some bloggers who were republishing AP stories online and linking to the AP original source, and the AP took the position that that was copyright infringement. The authors of the blogs that were republishing this information took the position that it was fair use. Fair use is the primary issue on the internet, and when you do link to the original source of the copyright such as an AP article, etc., most commentators believe that, in fact, is fair use, and that if you give attribution to the AP, then you’re okay. You become further protected if, in fact, you are commenting on the AP story because, of course, the First Amendment, we have a public interest in commentary, so commentary is a great example of fair use.
Ron Jolly: Okay. We are almost out of time. First of all, Enrico Schaefer, thanks a lot for the time today.
Enrico: You’re welcome.
Ron Jolly: Traverse Legal. Office in Traverse City. On the web at www.traverselegal.com. Copyright, patent and trademark law specialist. Laura Oblinger, we’ll just say www.tcchamber.org for a lot of information.
I am so thankful and blessed to have visited this site. I am now clarified about the difference between trademark and copyright which are both common in our living nowadays. Thank you Attorney Enrico Schaefer for discussing Copyrights and Trademarks. Your ability to share effectively is your trademark that proves your intelligence.
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