Arizona Trademark Laws

Hi, I’m Maria Speth I’m an attorney with the law firm of Jaburg & Wilk. I practice in the areas of intellectual property and internet law.

What is an intellectual property lawyer?

When somebody is either investing in a company or thinking about buying a company there’s almost always a do diligence phase and most people do get their M&A lawyers, their merger & acquisition lawyers involved. But I think it’s important for people to consider getting an intellectual property attorney involved. Most M&A lawyers do not have deep understanding of intellectual property issues and intellectual property is interesting it doesn’t always behave like tangible property.

How does intellectual property differ from physical property?

There are ownership issues that are a little different. If someone hires somebody to create something for them and it’s intangible, it is not necessarily owned by the person who did the hiring – person who paid the money. So what we see many times in companies as they may hire graphic designers, software developers, photographers, all types of creative people who create things for the company who may or may not have signed the right documents to get ownership in the company.

Do I need an intellectual property lawyer if I buy a business?

In today’s world when you purchase a company often that purchase is – the value in that purchase is really wrapped up in intangible assets. If you are contemplating selling your business or you’re looking at an exit strategy it’s a great idea to have an intellectual property attorney early on to set things up and have the right foundation so that when you get to the point where you’re ready to sell all of your docs are in a roll.

By: Maria Crimi Speth

Hi, my name is Maria Speth and I’m attorney here at Jaburg & Wilk, and my areas of practice are intellectual property and internet law. Website terms of use may or may not be enforceable. There are a few different types of terms of use.

There’s click wrap agreements and browse wrap agreements. A click wrap agreement is the kind of agreement where the user has to actually click I agree on the website to show that they agree to the terms of use. A browse wrap agreement is it’s just there. It’s available, you can see it. You can read through it, but you don’t have to manifest an agreement to it by clicking.

Courts have been pretty clear that a click wrap agreement is enforceable because you have as a user you have agreed to those terms. Browse wrap agreements are usually not enforceable. It depends on how conspicuous they are and where they are on the website, but typically they are much harder to enforce.

So, if you have a website – especially if your website is interactive or is an E-Commerce website – I would highly recommend that you include a click wrap agreement, that actually have your users click I agree to the terms of use. Otherwise it’s likely that the court will find that it’s not enforceable. On the other hand if your website is a static website and you’re not actually either allowing somebody to post on it or allowing somebody to buy from it – then it’s not as important that you have an agreement that they can actually click on. In those cases more of a browse wrap would be acceptable.

By: Maria Speth

Hi, I’m Maria Speth with Jaburg and Wilk. My area of practice is Intellectual Property and Internet Law.

Can a website copy terms of use or a privacy policy from a similar website?

A lot of websites figure they’ll just copy from another website that does a similar type of function or provides a similar service to what they provide. The problem with that is two-fold. Number one, it is actually copyright infringement. It’s not okay to copy somebody else’s terms and conditions and it can be copyright infringement. Number two, it might not really be as suited to your needs as you might think it is. That website might perform a similar function that you perform, but they might not do everything the same way. And you might not want your rules to be exactly like their rules. So I don’t recommend that for both reasons.

What should be included in a website’s terms of use?

In a websites Terms of Use, we want to see things like jurisdiction. If there’s a lawsuit, where will the lawsuit be? You don’t want to get sued in some foreign country or some foreign state. You want to see the rules of what your users can and cannot do on the website. You want to make it really clear to your users whether or not you own what they post on your website or not. You really want to make sure that they understand that they’re responsible for what they do and that you’re not responsible for what they do.

By: Maria Crimi Speth

Trademark Infringement

What happens if you unknowingly use someone else’s trademark? It still can be trademark infringement and you can still have liability for confusing the public. Trademark law is about helping the public make more efficient decisions by not being confused as to the source. If you get a federally registered trademark, it covers the entire nation, whether or not you’re using it all over the nation. But if you don’t get a federally registered trademark, your rights to your trademark are limited to the area in which you are using it. It can be a problem and it can be trademark infringement if you are using somebody else’s trademark even without knowing it. If you receive a cease and desist letter from another trademark holder, I recommend that you contact a knowledgeable trademark attorney. I’m Wayne Carroll with Inspired Idea Solutions Law Firm. To find out more, give me a call.

By: Wayne Carroll

Brand & Trademark Availability

In this video I’m going to answer the question: “how do I know if a brand name or a trademark is available?” Many people think that because they are able to register a name with the Secretary of State or the Corporation Commission in their state that the name is available as a brand or trademark.

Trademark Registration

A trademark is not the same as registering your business. A trademark is a word or symbol that distinguishes and identifies your business as the source of what you sell. In order to establish a trademark nationwide you must do more than merrily claim it or claim the domain name. You must register with the United States Patent & Trademark Office and use the trademark. When you apply for a trademark, the trademark office will do a search to determine if you meet the requirements for a trademark. There are two main things that they look for and these are the same things that you should look for to determine if your selected brand name is available.

Trademark Availability

First, does your trademark distinguish your brand from other brands already in use? And second, can your trademark identify your brand as a brand? To distinguish your brand, the trademark must be significantly different than other brands in use. If your trademark is similar to the way other trademarks look, sound, or create a similar impression as other trademarks, the trademark is not likely available and your application may be rejected. The prior trademarks need to be used for related products or services to what you are selling but “related” is a broad term. And your application can be rejected based on someone selling very different merchandise.

The trademark office primarily searches in the databases of current trademarks in the United States. But a trademark is not truly available if someone else is using the trademark even without a registration. If they are using the trademark prior to your use, they have at least some rights that can block you from using the trademark.

If your chosen brand name cannot distinguish your brand from others, then it’s not available. So, this is the second requirement to get a brand that you can protect with exclusive rights it must also be able to identify your brand as a brand. Your trademark must be more than generic terms for what you are selling. The trademark also cannot be merrily descriptive of your goods.

For example, crispy may be descriptive for bacon and low fat may be descriptive for yogurt. The strongest trademarks have no elements of descriptiveness in the brand name. For example Xerox or Kodak. At Inspired Ideas Solutions Law Firm we perform high quality trademark searches to determine if your chosen trademark is available not just in the trademark office database but based on registrations from all 50 states, business publications, and other databases. We help you make the determination of whether to invest time and money into building a brand around a trademark. That brand can serve your business for years to come.

By: Wayne Carroll

Hi. I’m Maria Speth with Jayburg and Wilk. My area of practice is intellectual property and internet law.

When a company is launching a new website, what are some of the legal issues it should be aware of?

First of all, you want to make sure that you have terms of use and/or terms of conditions for your website. Basically the rules of the playground so that you’re readers know what they’re allowed to do and what they’re not allowed to do on your website.

Do all websites need terms of use?

I wouldn’t say every website needs a terms of use. But if you have an interactive website where your readers can come onto your website and post things, then you’re definitely going to want terms of use in those circumstances.

Do all websites need a privacy policy?

Yes. All websites should have a privacy policy. First of all, Google gives you some extra points in their algorithms if you have a privacy policy. California actually requires privacy policies for websites. So obviously if you’re on the internet your website is going to be viewed in California. So I would say yes, all websites should have privacy policies.

By: Maria Crimi Speth

What is a Trademark

What is a trademark? A trademark is the exclusive right to use a term or a symbol in connection with your goods or what you’re selling. It is designed to connect that symbol to your company so that people know where to go to get more of the good stuff you’re delivering. You want to make sure that that is yours exclusive and that people don’t get confused by seeing somebody else’s symbol, thinking maybe that’s you, maybe that’s not you. So make sure you have a good distinctive trademark. For more questions, please contact me. I’m Wayne Carroll, Inspired Idea Solutions Law Firm.

By: Wayne Carroll