Benjamin Appelbaum, Attorney at Law

Morris County Intellectual Propery Law Blog

About trademarks

Business owners in New Jersey can use trademarks to protect aspects of their company, such as a logo or brand. However, some illustrated intellectual property can present some complications when it comes to trademarking if the illustrations are not representative of the business brand or do not have sufficient uniqueness.

Trademarks are symbols or phrases that are used to indicate a particular brand. Trademarks serve as legal enforcement of the digital assets and physical products of a business. There is essentially no limit as to what can be a trademark. Associated with a trademark is a certain strength, or the degree of defensibility it has as opposed to how widely other entities can use it. The most powerful trademarks are those that are completely made up. For example, a brand name under which no other company operates or uses in its branding can be very strong.

Possible benefits of seeking a provisional patent application

Not all enterprising New Jersey inventors are ready to jump right into the process of seeking a long-term patent. Instead, patent-seekers may wish to consider a provisional patent application, or PPA. It's essentially a short-term way of protecting an invention in a way that does not require the same effort or expense typically associated with a standard patent. Having a PPA on file can also allow an applicant to use the filing date of the PPA if a non-provisional application is filed within a year.

Under United States patent law, having a PPA on file with the United States Patent and Trademark Office allows the applicant to attach the phrase "patent pending" to their invention for 12 months. Some PPA applicants use this period to determine if their product is viable while others might use the extra time to seek investors and financing or perfect their invention before seeking a non-provisional patent application.

Tradmark protection isn't always ironclad

The romance genre is a popular one among readers in New Jersey and throughout the country. Therefore, those who read or write romance novels may be familiar with something referred to as "Cockygate". The story begins when an author filed for a trademark to the word "cocky" through a company called Hop Hop Productions, Inc. It is not clear if the author has a financial interest in the company itself.

In April 2018, a trademark was granted for the word in text form. In May 2018, a trademark was granted for the word in a stylized form. This was despite the fact that other authors had used the word in books before the trademark was acquired. Those who used the word after the trademark had been approved were sent cease-and-desist letters. However, it may be a good idea to ensure that the trademark is valid and cannot be contested prior to taking such an aggressive stance against potentially infringing parties.

Samsung loses a patent infringement case again

Many New Jersey residents own devices made by Samsung. The world's leading cellphone manufacturer lost a lengthy court battle with its rival Apple over patent infringement, and now a Korean university has been awarded damages to be paid by Samsung as well. Once again, the claim against Samsung was patent infringement.

The Korea Advanced Institute of Science and Technology accused Samsung of stealing its FinFet chipmaking technology. Samsung and two other companies, Qualcomm and GlobalFoundries, were each found guilty of infringing the university's patent, but only Samsung was ordered to pay damages. The amount Samsung is ordered to pay is $400 million.

Trademark disputes bubbling up among craft brewers

The clever names that craft brewers give their drinks might attract beer enthusiasts in New Jersey, but the labels that often draw upon regional traits have become a source of trademark disputes. Stony Creek Brewery, located on the East Coast, has filed a federal lawsuit against Peak Organic Brewing and Shipyard Brewing on the West Coast.

According to court filings, Stony Creek Brewery claims that the similarity between Peak Organic's Ripe beer and Stony Creek's Ripe 'n' Cranky confuses consumers. The lawsuit included Shipyard Brewing as a defendant because that facility produces the beverage for Peak Organic Brewing. The two companies have until January 2019 to prepare a response to the accusations.

Judge rules in Melissa McCarthy R-rated Muppets case

Moviegoers in New Jersey and around the country will continue to see trailers for R-rated film featuring puppet characters similar to those created by Jim Henson. Sesame Workshop filed a lawsuit on May 21 claiming that the trailers, which feature the tagline 'NO SESAME. ALL STREET," are tarnishing valuable intellectual property by depicting beloved children's characters taking drugs, using foul language and behaving violently. However, a New York federal judge was unconvinced by these arguments and ruled that the trailers could continue to be used to promote Melissa McCarthy's upcoming film.

The judge determined that the trailer for "The Happytime Murders" and its controversial tagline were clear attempts to differentiate the R-rated film from iconic children's television programs like "The Muppet Show" and "Sesame Street". McCarthy plays a human detective in the film who teams up with a puppet to solve a series of grisly murders. "The Happytime Murders" is scheduled to be released on Aug. 17.

Vegas Golden Knights still facing trademark concerns

Hockey fans in New Jersey and across the United States have watched the first-year Vegas Golden Knights successfully make their way to the Stanley Cup Finals. Though they're playing for their first championship, the Golden Knights are still officially registering their name and logos with the U.S. Patent and Trademark Office.

Two other entities initially complained about copyright issues when the Vegas Golden Knights first announced their team name and logo. The College of St. Rose, which initially opposed the name, is nicknamed the Golden Knights. The school never filed a formal complaint, however. The U.S. Army has a parachute team named the Golden Knights. They are working with the team on an amicable solution to the concern.

Protecting recipes not easy due to internet

Many New Jersey chefs dream of creating a signature recipe that's worth millions. For example, Sir Kensington's raked in $140 million when it sold its ketchup recipe to Unilver in 2017. However, in the age of the internet, it can be difficult to keep recipes from being posted online. Further, most recipes aren't protected by copyrights or patents.

According to copyright law, utilitarian facts cannot be copyrighted. This includes most recipes, which are seen as a mere list of instructions. In order for a recipe to be copyrighted, it must possess unique features that separate it from ordinary recipes of its kind. The same is true of recipe patents. In order to qualify for a patent, a recipe generally needs to have an ingredient never used before or require a revolutionary preparation technique.

Samsung heads to court again in patent infringement case

New Jersey residents who have been following the long court battle between Samsung and Apple might be interested in learning that the two companies will again head to court for a retrial on damages in Apple's patent lawsuit win. The original patent infringement lawsuit was filed by Apple against Samsung in 2011, and a jury awarded a verdict in Apple's favor in 2012 in the amount of $1.02 billion.

Samsung reportedly infringed on Apple's patents with its Galaxy products. Samsung had appealed the trial court's findings up to the Supreme Court of the United States. In 2016, the Court returned the case to the trial court with an order that allowed Samsung to retry that amount of damages.

Fashion giants conclude long intellectual property dispute

New Jersey shoppers may have long been fans of two brands that have been locked in a trademark dispute for nine years. Gucci and Guess reached an agreement in April 2018 to end their lengthy legal issues over Guess' logo and diamond pattern. Gucci alleged that the logos were knockoffs of its own distinctive, trademarked pattern. In their settlement, the two companies announced that they had concluded all international property law and trademark matters.

Gucci and Guess did not disclose the terms of the agreement that concluded the litigation, noting that both companies sought to protect their intellectual property and creative design. Intellectual property litigation engaged the two companies in Italy, France, Australia and China. Gucci first sued Guess in New York federal court in 2009 for $221 million; it alleged counterfeiting, unfair competition and trademark infringement. The lawsuit focused on a line of shoes produced by Guess with interlocking G's and stripes on the side. In 2012, Gucci was awarded $4.7 million for breach of its trademark designs and received an injunction.

Benjamin Appelbaum, Attorney at Law - Intellectual Property

27 Bennington Drive
Flanders, NJ 07836

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