Online Infringement of IP - The Dark Side of the Digital Age

The Internet today has efficiently created a wide range of opportunities for business firms, companies, organizations, and individuals to communicate their brand messages and reach their target audience. However, keeping aside the Internet's openness, versatility, and global reach, its unregulated character has created a fertile ground for Trademark and Copyright Infringement too. In the broadest sense, online Intellectual Property (IP) infringement covers the sale of counterfeit products and services through the Internet and a variety of its activities, including cybersquatting, phishing, SEO, and unsolicited email marketing. These activities make up for what we may refer to as the dark side of the digital era.

According to various reports and surveys conducted, the fastest growing area of counterfeit trading and Intellectual Property Infringement is online. Companies can't nowadays depend on conventional legal remedies for dealing with trademark and copyright abuse on the Internet. Therefore, they must build a proactive and multi-faceted strategy for Copyright and Trademark Protection, which must offer effective methods of adapting to the challenges of the online environment. It should also help the companies in overcoming some of the limitations in the conventional legal approach. For instance, like other forms of Intellectual Property Law, the Trademark Law is also governed by the principles of territoriality. However, on the Internet, it is quite easy to maintain an anonymous identity with the help of offshore internet servers. Consequently, the infringers with this kind of virtual presence can generate huge profits. The difficulties associated with the conventional legal approach leading to successful online IP infringement further includes the aspect of lack of uniformity in the legal landscape. Varying IP laws and regulations in different jurisdictions make it arduous to navigate the legal landscape.

Nevertheless, all is not lost yet as a growing number of technologies and monitoring services are now available to reduce IP violation, support online brand protection, and safeguard brand equity. As a company's brand and IP assets account for an extreme percentage of its overall business value, a strategic protection program is indispensable for protecting this highly valuable asset base.

AUTOMATED TRADEMARK MONITORING SYSTEMS

For preventing the Trademark Registration of confusingly similar or identical marks by third parties, automated trademark monitoring systems and services can prove to be extremely beneficial. With surveillance mechanisms, these systems monitor trademark use by third parties across product development, point of sale, and distribution. They also efficiently track activities involved in digital marketing, advertising, and social media marketing - that may have a bearing on the brand value and its entity and integrity. Furthermore, they help in signaling to infringers and violators that a trademark is actively protected.

PRIORITIES AND OPTIONS

As the Internet has immensely transformed the business landscape, it has become imperative to keep IP protection strategies in place and outsmart IP infringers in the online marketplace.
Rapidly putting a stop to online infringing activities should be the topmost priority. It requires immediate action for ensuring that no incriminating content is accessible online. Web screening companies linking up with various E-commerce platforms and internet service providers can detect and disable infringing websites and portals.

Claiming monetary damages from infringers can be a tough task, especially, in the present borderless digital society, where tracing the identity of an infringer is another complicated process. The courts and other authorities can help in stopping the illegal use of brands online by initiating legal proceedings against unauthorized use.

As the IP infringers are nowadays all equipped with the latest smart technologies and tools, the in-house legal departments and providers or specialized services can tackle such issues and provide solutions in a professional, cost-efficient, and responsible manner.

Copyright Infringement And Ways Of Avoiding It

Intellectual works such as written stories, poems, recorded songs, artworks, and photographs are just some of the original creations that can obtain Copyright Protection. It implies that the authors, creators, or artists or these original works own the exclusive rights to sell, distribute, derive, or modify their material. Without the owner's expressed permission, it is not legal for anyone to use the copyrighted work. Otherwise, the owner can sue you for violating the Copyright Law, and you may be held liable for Copyright Infringement.

COPYRIGHT INFRINGEMENT

Copyright Infringement is just another term for theft of ideas and piracy. To be specific, it refers to the act of stealing someone's original creations and violating his Intellectual Property (IP). It is indeed an illegal offense, especially when the person who has copied the idea, recoups all the benefits on behalf of the original creator.

EXAMPLES OF COPYRIGHT INFRINGEMENT

1. A classic example of copyright infringement involves the use of music in your videos. If you haven't obtained the legal consent to use a song or audio as the background music in your creative works, presentations, or movies, you could be held liable for copyright infringement. Nowadays, various video-sharing social media platforms like Facebook and YouTube actively mute songs and music for preventing Copyright Violation.
2. Quite often, many creators provide the option of downloading their original works for a fee. However, downloading a TV show, music, software, or movie, that is not owned by the creator leads to copyright violation. Such non-authorized websites automatically prompt you to share the same material with others as well, which results in you redistributing the copyrighted material intentionally or unintentionally and without the owner's permission or knowledge.Another typical example of copyright infringement involves using a creator's artwork, photograph, or graphics in your website's posters, banners, or brochures, without seeking their permission. You can't use such material in your marketing campaigns as well until and unless you either buy the photograph or artwork or pay the creator a certain fee. Furthermore, purchasing or paying for someone's artwork doesn't permit you to use the same for merchandising without any explicit consent.
3. Even if it's a derivative or inspired work, you can't copy it and claim it as your own; it is referred to as 'plagiarism' in the music or publishing industry.
4. Although it is reasonably acceptable to record a TV show at home for watching it later; however, passing the recorded material to others, producing a bunch of its copies to sell and gain profit, or broadcasting and posting the video online becomes a case of copyright infringement.

HOW TO AVOID COPYRIGHT INFRINGEMENT

In today's digitally transformed world, it has become ever-easier to reproduce or distribute the original works of the creators. However, the risks and consequences associated with copyright infringement won't be worth the trouble to your finances, peace of mind, reputation, and time. Few tips to avoid copyright infringement are as follows:

Always Assume There's Copyright

Assuming that a created work has copyright protection is the safest option. Even if you don't come across any official statement regarding the public use of that particular material, there's still a probability that someone already owns its Intellectual Property Rights (IPRs). Therefore, it is better to get written consent from the copyright owner whose work you wish to use. Put in efforts to contact the owner for making or negotiating a deal.

Research Well Before Using the IP of Others

Some creators share their works for a price, while others grant permission, only if there is proper attribution. In case there are no attribution conditions or specific fee involved, you must go through the clause of Terms and Conditions on the official website of the copyright owner. Besides, contacting the owner for his expressed consent is usually the best possible way of preventing infringement.

Understand the term 'Fair Use'

Making yourself aware of the rights under 'Fair Use' can help you in taking advantage of the original works for non-commercial endeavors. However, it is imperative to know about a few factors that may affect your usage and its value in the market. Consulting a legal expert on copyright laws can clear your doubts as well.

Pay Someone for the Original Works or Create your Own

If you have the right creative and artistic skills, you can also come up with your original content, rather than copying someone else's work. On the other hand, if you have adequate financial resources, then you can pay other people to be the creator yourself.

Source Free-to-Use Materials under the Public Domain

Nowadays, there are many sources for free-to-use materials under the Public Domain. You can search for the works with 'Creative Commons' (CC) license (enabling the free distribution of the otherwise copyrighted work), which can be commercially viable.

Ref: Copyright Infringement And Ways Of Avoiding It ✅ https://t.co/gs6jVho96A#trademarkregistration #trademark #patentregistration #industrialdesign #copyright #patent #intellectualProperty#IP #kipg #domainname pic.twitter.com/yNbwPwHYRk

— Kashish Intellectual Property Group (@Kashish_IPGroup) September 20, 2019

Apple Applies for a US Trademark on 'Slofie'

During this year's Apple event held in September, the tech giant had announced that its new iPhone 11 line would feature a front camera capable of recording at 120 frames per second. The same effect, when slowed down, would produce a crisp slow-motion video, which shall be perfect for recording dramatic selfie videos. They called this feature 'Slofie,' made from the words 'Slow' and 'Selfie.' Although it seemed that the term slofie was just a cruel joke by Apple; however, the company has recently filed a Trademark Application for the same with the US Patent and Trademark Office (USPTO).

Even though iPhone 11 hasn't yet entered the market, the early reactions to its slofie feature were more on the negative side. However, according to the document filed with the USPTO, Apple is sticking to the term slofie which it describes in its trademark application as - downloadable computer software for use in recording and capturing video. That implies that Apple is more into looking forward to preventing other companies from coming up with a similar feature. They wish to put a stop to the creation of counterfeit slofie apps and want slofies to remain exclusive to the new iPhone.

In spite of the prime focus on apps, Apple has not included a slofie mode or slofie app in its upcoming iPhones. The feature is known as 'slo-mo' in its camera app and the current usage of this feature only refers to the resulting videos, rather than any app or mode used to capture and record them.

Quite clearly, Apple is hoping its slofie feature would be a success story and help in selling the new iPhone 11 line, which has also incorporated plenty of additional camera upgrades. As per various reports, the tech giant has paid $400 for filing this trademark application.

Ref: https://www.kashishworld.com/blog/apple-applies-for-a-us-trademark-on-slofie/

Everything You Need To Know About Trademarks

Your brand is your image, and a trademark legally protects the unique and specific aspects of your brand. By carrying a legal weight of representing a brand or a business along with its products and services, Trademark Protection can apply to words, logos, symbols, phrases, color schemes, packaging design, unique labeling, signatures, sounds, movements, or any combination that uniquely identifies a product and distinguishes it from others.

IMPORTANCE OF TRADEMARKS

Businesses and brands with Registered Trademarks make it easier for customers to locate their services along with the products offered. Whether your customers are browsing the internet, active on social media, or simply walking around the neighborhood, trademarks help them in immediately identifying your company and its available services and products.
Every company or individual with a trademark owns the legal right to its protection as well. If any other person, business firm, or organization starts selling identical products or comes up with something likely to create confusion in the minds of the customers, the trademark owners can initiate legal proceedings against such unauthorized use. The value of a trademark increases as the reputation of the company or its brand gets better with time. Customers usually stay loyal to their favorite brands, which further steps up the value of the company. Furthermore, a trademark holds immense potential in quickly becoming the highest-valued Intellectual Property (IP) or asset owned by a company as it will stand on the pillars of loyalty and high-quality in the eyes of the customers.

Trademark Registration can also prove to be fruitful in turning your trademark into a valuable and transferrable asset, which your business can use anytime in negotiating better business deals or providing more financial security. A well-protected trademark is substantially more likely to thrive, even when the economy begins to go downhill, while flimsy trademarks won’t last for long in troublesome financial conditions. Failing to register a trademark, damages the brand, destroys the reputation and risks the Intellectual Property Protection.

Many individuals and business firms believe that registering a domain name or business entity name offers the same protections and rights as a trademark. However, people must understand that registering a company name or a domain name will not prevent any third-party from using an identical or a similar name. Therefore, businesses of all sizes should be proactive in developing a strategy for trademark protection to keep their brands safe. It is also vital to make a point of the fact that using a trademark should never infringe or violate any other already registered trademark.

Maintaining a strong trademark portfolio that is enforceable helps a trademark owner in looking for possible conflicts, including the people who might be diluting the trademark or infringing on its protection. The prime purpose of the Trademark Law is to safeguard the owners from losing sales and income due to the presence of confusingly similar marks in the market among which a customer can't differentiate.

CREATING A TRADEMARK

Before registering a trademark, it is imperative to ensure that the proposed mark meets all the requirements as specified by the jurisdiction in which you are planning to file the Trademark Application.

For seeking trademark protection, the proposed mark must be distinctive, as per the four categories mentioned below:

1. GENERIC: As generic terms can be used by almost everyone, a trademark shouldn't be too generic.
   
2. DESCRIPTIVE: Descriptive terms can qualify for protection if an additional meaning is provided, which adequately proves the public connection to the proposed mark.
   
3. SUGGESTIVE: This category requires the customers to think creatively and understand the link between the proposed mark and goods or services provided.
   
4. ARBITRARY OR FANCIFUL: This category refers to the made-up phrases, words, or names with a meaning that don't relate to the products or services offered. For instance, the trademark ‘Apple’ owned by Apple Inc.
   
   Ref: https://www.kashishworld.com/blog/everything-you-need-to-know-about-trademarks/

Air NZ's Trademark Application for 'Kia Ora' - Offensive to Many Māori

The flag carrier airline of New Zealand, Air New Zealand, has offended the country's Māori people by filing a Trademark Application for a logo of the words “Kia Ora” which is the greeting for hello. The airline filed the trademark application for “Kia Ora” which is also the name of its in-flight magazine, this year in May. The Intellectual Property (IP) Office of New Zealand stated that the airline was looking forward to protecting only the particular stylized forms of the greeting and not the greeting itself. However, the Indigenous groups of New Zealand said that the words of the logo belonged to them, and the attempt to trademark the phrase was a pure cynical business move.

The Māori Council, in this particular context, has said that it would take Air NZ to court if it goes any further with the trademark move. Besides, the council also stated that the trademark application is an insult to New Zealanders and referred to it as “harebrained.” Matthew Tukaki, the council's executive director, said that he and all Māori are sick and tired of cultural appropriation and their language is a national treasure, which people can't use for business purposes and gain profits from it as they see fit.

Various IP experts have said that it is unlikely for the trademark to seek approval as the language is a common greeting among all races in the country and the private companies, government institutions, and businesses use the same abundantly. Moreover, the trademark application would also require passing the examination phase with the Māori trademarks advisory committee, which advises the commissioner of trademarks in New Zealand.

Maui Solomon, an Intellectual Property Rights (IPRs) expert, said that the airline is "overreaching" by seizing national icons to help promote their brands, and if they are doing so, there should be benefit-sharing, and the airline must stump up with a bit of cash.

The national airlines stated that the trademark application is all about safeguarding the company's logo and they have immense respect for the Māori language in their hearts. A spokesperson for Air New Zealand stated that the phrase “Kia Ora” has been registered by various applicants to be used for a wide range of products and services and it is a part of their standard corporate practice to trademark all their logos. Ref: https://www.kashishworld.com/blog/air-nzs-trademark-application-for-kia-ora-offensive-to-many-maori/

Business Entity Names, Domain Names, and Trademarks - What Are They?

People who are either dealing with a company, starting a new venture, or running a business need to know what are business entity names, domain names, and trademarks and how to use them for increasing revenue. Each of these three terms has a unique purpose and core concepts and must be used adequately for establishing a successful business presence. Let's understand this with an example. Apple Inc. is a business entity name denoting a legal entity, which in this particular case is a publicly-traded United States Corporation. 'Apple.com' is one of the many domain names owned by Apple. 'Apple' is the Registered Trademark of the technology giant with the US Patent and Trademark Office (USPTO). At the very first glance, all these three terms seem to be incredibly similar as they all incorporate the name 'Apple.' However, from a legal viewpoint, it is critical to bring up that each term is different as the legal rights associated with them differ extraordinarily.

BUSINESS ENTITY NAMES

When we apply for an entity name with the department of a particular state, we are registering that entity, organization, or publicly traded corporation to do business in that respective state. Some common types of business entities (but not exclusively limited to) include:

1. 1. 1. Limited Liability Companies (LLC)
      2. Corporations
      3. Limited Partnerships

Limited Liability Companies can use 'LLC' to express the fact that their company is a limited liability company. A corporation is usually identified with 'Inc.' attached to its name. 'LLP' refers to Limited Liability Partnerships. The business entity names must be used in advertisements and business correspondence in the same way they are registered.

DOMAIN NAMES

A domain name is in the form of .com, .org, .net, or other web addresses existing for people and companies to find your business online. While selecting a name for your business, you must also see whether its corresponding domain name is available or not. In many cases, someone else can also buy the same domain name with a different top-level domain name. For instance, if you own the domain name, 'company-name.com,' others may own 'company-name.org' or 'company-name.net.' The domain names have a centralized registration process. A domain name is only the name of your website and owning the same won't give you any Trademark Rights.

TRADEMARKS

Registered trademarks protect the symbols, phrases, logos, or names that distinguish the source of products and services of one party from another. Some of the most famous and widely recognized trademarks include Google, Rolex, and Vodafone, to name a few. If used lawfully and enforced positively, trademarks safeguard the brand's entity by not letting any other person or company use the same without permission. In case, the trademark holder comes across a similar trademark, that may create a likelihood of confusion in the mind of a consumer, he can initiate legal proceedings against the allegedly infringing user in the court.

DIFFERENCES AND SIMILARITIES

People often consider business entity names and domain names as the same since they aren't aware of the unobtrusive contrasts. While a domain name only points to the online presence of a business, a business entity name, on the other hand, refers to the legal representation of a valid business. A domain name can be changed if required, but a business entity name usually stays the same. Trademarks are the exclusive form of Intellectual Property Rights (IPRs) that can prevent the unauthorized use of a brand by any other individual or entity. Though different, they are all confused with each other at some point or the other.

Ref: https://www.kashishworld.com/blog/what-are-domain-names-business-entity-names-and-trademarks/

LeBron James' Trademark Application for 'Taco Tuesday' Denied

Recently, the United States Patent and Trademark Office (USPTO), has turned down the Los Angeles Lakers basketball star LeBron James' Trademark Application for the phrase 'Taco Tuesday.' The USPTO stated that the proposed mark is a commonplace term. It further explained by saying that the phrase 'Taco Tuesday' is an expression or a message used by various sources to a great extent and solely conveys a familiar, well-recognized, or ordinary concept. Moreover, the office presented various news articles as evidence to show that people around the world widely use the phrase 'Taco Tuesday' to express their enthusiasm for tacos by celebrating and promoting them on the dedicated weekday, i.e., Tuesday.

The USPTO also referred to the similarity of 'Taco Tuesday' to another already existing trademark, 'Techno Taco Tuesday' owned by an entertainment company in Las Vegas. The office stated that removing a word from a Registered Trademark doesn't overcome a likelihood of confusion.

James had filed the trademark application last month on August 15, 2019, through his company LBJ Trademarks LLC, to use the phrase for online entertainment services, podcasting services, and his social media posts related to entertainment, sports, current events, and popular culture. His company also revealed their plans for using the phrase in marketing and advertising services.

According to The Los Angeles Times (a daily newspaper published in Los Angeles, California), a restaurant in Cheyenne, Wyo., already owns a trademark for the same phrase and has been aggressively protecting its Intellectual Property (IP) for quite a while now.
It seems as if Mr. James' attempt to trademark the phrase was seen as a possible means to free it for use by everyone.

For challenging the USPTO's move or refusal of the phrase, James and his team now have six months to respond. However, according to Josh Gerben, a lawyer specializing in trademarks, the refusal is pretty hard to overcome.

Ref: https://www.kashishworld.com/blog/lebron-james-trademark-application-for-taco-tuesday-denied/