Category Archives: Uncategorized

Making Money In A Digital Age: Bootcamp On Digital Royalty Strategies

Making Money in a Digital Age:   Maximizing your client’s film and music revenues with various digital options available at our fingertips.  Join the Sports & Entertainment Law Section of the Dallas Bar Association for a Boot Camp all about digital distribution for film, music, & television. Learn how to maximize you or your client’s film, music, or tv revenues with various digital options available at our fingertips.When: Friday, 18 OCT 2013 at 1:00pm
Where: Texas Theatre, 231 W. Jefferson Blvd, Dallas, TX 75208,  214-948-1546$25 for lawyers (MCLE Pending)
$20 for non-lawyers

To purchase tickets, please go to: http://www.prekindle.com/promo/id/22815447475413408

Music Panelists
Steven Corn – Los Angeles, California
Co-owner with BFM Digital

Andy R. Jordan – Dallas, Texas
Music producer for interactive media and documentary films

Lee Mezistrano – Seattle, Washington
Lawyer with Starbucks – Digital Ventures

Evan Stone – Dallas, Texas
Lawyer with FUNimation Entertainment and Partner at Stone and Vaughn PLLC

Film Panelists

Steven Masur – New York, New York
Lawyer, Venture Law Group Cowan Debaets Abrahams & Sheppard LLP

Ken Topolsky – Dallas, Texas
Producer, Dallas TV Show

Lise Romanoff – Los Angeles, California
Managing Director/CEO , Vision Films


Candy Wars – Trademark Cadbury Purple?

Cadbury lost a 9-year trademark battle to protect the iconic purple of its candy wrappers. The color, better known as Pantone 2685C, is the distinctive purple used by Cadbury to wrap its milk chocolate candy since WWI.

The Appeals Court in the UK stated the claims in Cadbury’s trademark application were too broad and they refused to grant the protection.   Rival candy company Nestlé has been a driving force behind the battle and is pleased with the outcome.  The Nestlé “Wonka Bar” is packaged in a similar color.


Trader Joe’s v. Pirate Joe’s – U.S. Law Does Not Apply

A U.S. District Judge in Seattle ruled that transporting and reselling unaltered “Trader Joe’s” branded products in Canada does not give rise to a lawsuit for trademark infringement in the United States under U.S. trademark laws.

Michael Hallatt owns “Pirate Joe’s” a grocery store in Canada that resells “Trader Joe’s” branded/trademark products.  “Trader Joe’s” does not have any stores in Canada.  Hallatt pays retail prices for the goods and claims the goods at the border crossing.

Hallatt does not act to deceive his customers as to the source of the goods and he does not alter the goods or their packing.

The court found the facts did not rise to the level where U.S. Trademark law should be applied to acts in a foreign country.


EXXON v FXX – too many x’s of infringement?

Exxon Mobil Corp. sued FX Networks, LLC for trademark infringement for the double X interlocking design.

Is there a likelihood of consumer confusion that a consumer of television programming or a consumer of gas for their car, would be confused as to the source of the product or service?  Exxon Mobil alleges in their complaint, filed in the Southern District of Texas, that consumers have been confused by the recent launch of the FXX television network.  In their lawsuit, Exxon Mobil included online consumer comments such as

“Just saw the FXX logo …. who thought it was a good idea to rip off Exxon?”

to build their cause of action for false association and unjust enrichment.

The case is ExxonMobil Corp. (XOM) v. FX Networks LLC, 4:13-cv-02906, U.S. District Court, Southern District of Texas (Houston).


Entertainment Law Update Podcast – Gordon Firemark and Tamera Bennett

Film lawyer Gordon Firemark and music attorney Tamera Bennett co-host the Entertainment Law Update podcast.  Episode 44 highlights include the “Happy Birthday” public domain litigation; Marvel comics copyright termination lawsuit; and Harper Lee’s resolution on ownership of “To Kill A Mockingbird.”  Read more and listen here.


Copyright and Trademark Filings Still Accepted – Government Shut Down

UPDATED 10/7/2013 – The USPTO is currently unable to process credit cards.  If your filing deadline is today, you must use an alternative payment/filing method.

ORIGINAL POST – The U.S. Copyright Office shut down at 12:01 am October 1, 2013.  According to their website, new Copyright Applications may be filed via the online eCo system.  We will assume that applications will not be processed until the government reopens.  Registration dates should not be impacted as the effective date of registration is the date the Copyright office receives the application, filing fee and deposit material.  If at all possible, use the eCo system to upload your deposit to insure the date of receipt of the deposit.

The US Patent and Trademark Office has reserve funds to operate for approximately 4 weeks. At this time processing of documents should continue uninterrupted.  As always, we recommend filings be made online via the TEAS or TEAS Plus systems.


Trademark Basics Part 4: After Trademark Registration

In Part 4 of Trademark Basis we explore what happens after you secure a trademark registration.  Feel free to review Part 1 “Selecting a Trademark,” Part 2 From Selection to Application,” and Part 3,  “Intent to Use.”

Q:   When should I use the ™ symbol or the ® symbol?

A:         After federal registration the mark should be identified with the ® symbol.  Do not use the ® prior to issuance of the Federal Registration.

While the federal application is pending ( from one to two years), the trademark should be identified with the TM symbol. Use the mark with the TM on the actual product to which the mark applies, if possible, and on product labeling and packaging, and also in brochures, catalogs, advertisements, letterhead, business cards, and signage, as appropriate.

When using a word mark, or the word portion of a combination mark (word plus design), in a sentence, distinguish it from surrounding text by using all capitals and quotes.

Q:        When does my trademark registration expire?

A:         A trademark registration is valid for 10 years after the date of registration, provided that a section 8 (and possibly section 15) affidavit is filed with the USPTO in between the 5th and 6th years after registration, further validating that the mark is in use at this time.  Failure to file the section 8 affidavit between the 5th and 6th years of registration will result in cancellation of the trademark application before the 10 year expiration period.  Between the 9th and 10th year after registration, a renewal application is required to maintain the mark.  Thereafter, the renewal must be filed every 10 years.

Q:        I forgot to file my section 8 & 15 affidavit or section 8 & 9 renewal within the 1 year window before expiration.  Can I still reinstate my trademark?

A:         There is a six month grace period after the 6th year of registration or after the 10th year of registration to file these documents with the USPTO, for an additional fee.  Once outside the grace period, a new trademark application is required.

Q:        My trademark is still in use, but I have sold it to another company or changed my company name.  Do I need to do anything with the trademark office?

A:         Yes, you may need to file an assignment or change of ownership name document with the USPTO. Visit the assignments section of the USPTO website for additional information.

If you are ready to learn more about trademark attorney Tamera Bennett’s 5 Steps to Filing a Trademark Application, click here.


Trademark Basics Part 3: Intent to Use

In part three of Trademark Basics we explore “intent to use” trademark applications, interstate commerce, and common law rights in trademarks.  You may be interested in Part 1 on “Selecting A Trademark,”  Part 2 “From Selection to Application,” and Part 4 “Post Registration.”

Q:        What is “intent to use”?

A:         If you have not yet used the trademark, but plan to do so in the future, you may file an application with the United States Patent and Trademark Office (USPTO) based on a good faith or bona fide intention to use the trademark in interstate commerce.  You do not have to use the trademark before you file your federal trademark application.   Later on in the application process, you will need to file proof of using your trademark in interstate commerce.  A total of five extensions, each lasting six months in duration, may be granted by the USPTO before proof of use in interstate commerce is required. Each extension incurs additional filing fees.

Q:        What is “use in interstate commerce” for services?

A:         In general, the trademark must be used or displayed in the sale or advertising of the services and the services must be rendered in interstate commerce.

Q:        What is “use in interstate commerce” for goods?

A:         In general, the trademark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in interstate commerce.

Q:        I understand there are five possible extensions, each lasting six months, before I must submit a Statement of Use to the USPTO, demonstrating use of my trademark in interstate commerce.   I have used all five extensions, and my business will not be open before the final extension expires.  What can I do?

A:         You may wish to consider filing a new trademark application as soon as your last extension expires.  This starts the process over, including a new filing fee to the USPTO.  We encourage clients to think over their business plan carefully before filing a trademark application.

Q:        Does filing a federal or state application guarantee a registration?

A:         No. Filing a trademark application does not guarantee that either the USPTO or the applicable state will grant you a registration.

Q:        Do I have to secure a state or federal trademark registration to own a trademark?

A:         No.  A person/entity acquires rights in a trademark by being the first to use the trademark in the marketplace for specific goods or services. Rights in a trademark are obtained only through commercial use of the trademark.  Coining a phrase or designing a logo is not enough to secure trademark rights. You must use the phrase or logo on or in connection with your product or service.

If you are ready to learn more about trademark attorney Tamera Bennett’s 5 Steps to Filing a Trademark Application, click here.


Trademark Basics Part 2: From Selection to Application

This post is Part 2 of Trademark Basics. Take a look at Part 1 here on selecting a trademark.  You may also be interested in Part 3 on “Intent To Use” and Part 4 on “Post Registration.”

Q:  How does the trademark application process work?

A:  Develop a list of possible names and discuss this list with your trademark lawyer.

Your trademark attorney will conduct a trademark search or “knockout” to exclude any existing marks that are identical or confusingly similar and to assist in determination if the proposed mark may be generic or descriptive.

Determine the scope of your goods and services.

Prepare and submit an application. It may take seven to nine months before the USPTO will respond to your application.

If there are any procedural or substantive changes requested/a refusal issued by the trademark examiner (an Office Action), you will then have six months to respond.

If the refusal is overcome, or if no refusal issued, the mark will move to publication.

If the mark is published and no oppositions are filed, the mark will be registered if it was filed as a “Use” application.  If it is an “Intent To Use” application, a Notice of Allowance will issue and the mark must be used in interstate commerce within a certain allotted window of time.

Q:  What is required to file a federal trademark application?  A:  You must be using your trademark or service mark in interstate commerce (that is outside the borders of a single state) or have an intention to use the mark in interstate commerce before you can apply for a federal trademark with the United States Patent and Trademark Office.

Q:  How do I file a state trademark application?A:  You must be using your trademark or service mark within the state in order to file an application.  The Secretary of State or Corporations Section of most state governments handle their state’s trademark registry.

Q:  Does filing a federal or state application guarantee a registration?A:  No.  Filing an application does not guarantee that either the United States Patent and Trademark Office (USPTO) or the applicable state will grant you a registration.

Q:  Do I have to secure a state or federal trademark registration to own a trademark? A:  No.  Rights in a trademark are obtained only through commercial use of the mark. Coining a phrase or designing a logo is not enough to secure trademark rights. You must use the phrase or logo on or in connection with your product or service.

Q:  Do I need a lawyer to file a trademark application?  A:  There is no requirement that you use an attorney to file your trademark application.

Q:  Why should I use a lawyer to file a trademark application? A:  A trademark lawyer can advise you on legal issues regarding existing trademark applications, registrations and/or common law trademark rights that may help you save money in the long run.

If you are ready to learn more about trademark attorney Tamera Bennett’s 5 Steps to Filing a Trademark Application, click here.


Johnny Football vs Juanito Futbal Trademark Likelihood of Consumer Confusion

Updated 11/6/2013

JMAN2 Enterprises, LLC, the entity owned by Johnny Manziel settled the trademark lawsuit with defendant Eric Vaughan.  Read the original post on the Vaughan trademark lawsuit here.

Original Post

Texas A&M University football star and Heisman Trophy winner Johnny Manziel is a couple of quarters into legal battles over the trademark “Johnny Football.”   Part 1 of this post focuses on the battle at the court-house against defendant Eric Vaughan for selling unauthorized “Johnny Football” t-shirts.

This post focuses on the initially refusal from the US Patent and Trademark Office for the mark JOHNNY FOOTBALL.  Johnny Manziel and his entity JMAN2 Enterprises, LLC filed an application on February 2, 2013 as joint owners of a trademark application for JOHNNY FOOTBALL for clothing items as well as motivational speaking.  

On May 22, 2013 the application was initially refused on several grounds.  We’ll focus on the two big ones: 1) the mark is not functioning as a trademark; and 2) likelihood of consumer confusion with trademark applications for JUANITO FUTBAL and JOHNNY BASKETBALL and JOHNNY BASEBALL.

1) The mark is not functioning as a trademark — The only sample submitted to the Trademark Office of how the trademark is being used on clothing was the t-shirt image above.  The trademark examiner argues the large, over-sized placement of the words JOHNNY FOOTBALL  is “merely a decorative or ornamental feature of applicant’s clothing; and does not function as a trademark to indicate the source of applicant’s clothing and to identify and distinguish applicant’s clothing from others.”  I would have to say I agree with the examining attorney.  Amazingly enough to most folks, the smaller the mark, the more likely it functions as a brand identifier.  As an example, even if you purchase a shirt with the word NIKE across the front, it also has the trademark NIKE in the inside neck of the shirt as well as a hang-tag on the shirt.  

2) There is a likelihood of consumer confusion with trademark applications for JUANITO FUTBAL, JOHNNY BASKETBALL and JOHNNY BASEBALL –  Trademark applications are pending for JUANITO FUTBAL, JOHNNY BASKETBALL and JOHNNY BASEBALL. 

The Spanish to English translation of JUANITO FUTBAL is, you guessed it, JOHNNY FOOTBALL.   When the translation is similar or identical, the foreign language registration can be barrier to registration because of the concern a consumer would believe the two products are from the same source.  Also notice the use of the trademark on the product packaging.  It is placed on the plastic surrounding the shirt as well as on box for shipping.  This is the appropriate use of a trademark on clothing.

Already, LLC in Euless, Texas applied for trademark registrations for JOHNNY BASKETBALL  and JOHNNY BASEBALL. Those applications are pending and baring any third-party opposition to their registration, should be approved in the next few months.  Already, LLC is in the athletic apparel  business and I’ve blogged about their case with NIKE here.  They also have pending applications for JOHNNY HOCKEY, JOHNNY GOLF and several other JOHNNY marks.  I do not believe there was any intentional connection to Johnny Manziel.

Manziel may need a “Hail Mary” to overcome these initial refusals at the US Patent and Trademark Office.


Johnny Football vs Johnny Football and NCAA Amateur Status Part 1

Update 11/6/2013

JMAN2 Enterprises, LLC, the entity owned by Johnny Manziel settled the trademark lawsuit with defendant Eric Vaughan.

Original post:

Texas A&M University football star and Heisman Trophy winner Johnny Manziel is a couple of quarters into legal battles over the trademark “Johnny Football.”  The battles are happening at the court-house against defendant Eric Vaughan for selling unauthorized “Johnny Football” t-shirts and at the US Patent and Trademark Office to secure a trademark registration.

The phrase “Johnny Football”  has not only become synonymous with Manziel, arguable Texas A&M University used Manziel’s name and likeness as a brand identifier/trademark for clothing.   Manziel, an amateur athlete, cannot profit from his own name and likeness.  That’s where Texas A&M comes into the picture as Manziel’s licensee.

Interestingly enough, the plaintiff in the lawsuit against Eric Vaughan, is an entity owned be Manziel. Texas A&M is not a party to the lawsuit.  The plaintiff alleges Vaughan sold t-shirts infringing the trademark “Johnny Football” and did not stop selling the shirts even after receiving cease and desist letters.

The suit raises some interesting NCAA Student Athlete Name and Likeness questions that I will ponder, but which I am unable to answer:

  • If Manziel is successful in his lawsuit, could his recovery of damages violate his NCAA amateur status? Maybe not according to NCAA Bylaws the recovery is not tied to Manziel’s athletic performance. (See NCAA Bylaw 12).
  • But, it might be an issue with NCAA Bylaw 12.4.4 which prohibits a student athlete from using his name and likeness from promoting the student athletes’ own personal business.
  • And, should the recovery actually go to Texas A&M in accordance with NCAA Bylaw 12.5.5.1.e which requires all money from the use of the student athletes’ name and likeness go directly to the member institution, member conference or the charitable, educational or nonprofit agency?  While news reports say the NCAA has approved Manziel retaining any recovery, I have been unable to confirm this statement with the NCAA.
  • Because Manziel had to sign NCAA Form 08-3a which assigns his name and likeness rights to the NCAA, I’m wondering if Manziel, or his entity, are the proper party for this lawsuit?  This also ties into NCAA Bylaw 12.5.5.1.e.

You can download the NCAA bylaws for free from this link.

Here’s a link to the complaint/lawsuit against Eric Vaughan.

Part 2 of this post will focus on the hurdles facing the JOHNNY FOOTBALL trademark application at the USPTO.  Juanito Futbal and Johnny Basketball might raise a likelihood of consumer confusion.


JCP Seeks Dec Action of Trademark Non-Infringement

Plano, Texas-based retailer, JC Penney Corporation, Inc., asked a judge in Texas federal court to find JCP’s use of the name Aspen to describe a pair of winter boots is not infringing of Aspen Licensing International, Inc’s “Aspen” trademark for footwear.

By filing a declaratory judgment action, JCP kept the case in the Eastern District of Texas requiring Aspen Licensing, a Florida entity, to come to JCP’s home court.  According to court documents, Aspen sent several demand letters to JCP and made phone calls threatening litigation if JCP did not make a monetary settlement.

J. C. Penney Corporation, Inc. v. Aspen Licensing International Inc., 4:13-cv-00066-RAS-DDB (E.D. Tex. filed Feb. 8, 2013).


Top 10 Entertainment Law Cases/Disputes/Fun Facts of 2012

headphones http://www.flickr.com/creativecommons/by-2.0/Join LA film attorney Gordon Firemark and Texas music lawyer Tamera Bennett as they highlight the top legal issues in 2012 faced by the entertainment industry.

Click here for the Entertainment Law Update Podcast.


Trademark Basics Part 1: Selecting A Trademark

by:  Tamera H. Bennett

Every year we need a refresher course in trademark basics.  You may also be interested in Part 2 “Selection to Application,” Part 3 “Intent to Use,” and Part 4 “Post Registration.”

Q:  What is a trademark or service mark?

A:  A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.  A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Throughout this post, the terms “trademark” and “mark” refer to both trademarks and service marks.

Q:  What is the difference between a trademark and a copyright?

A:  A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. Examples of well-known trademarks include NIKE, CHANEL and ZYRTEC.

A copyright is an original work of authorship fixed in a tangible medium of expression; such as a song, book, or sound recording.

Q:   What should I consider in selecting a trademark?

A:  Trademarks are subject to varying degrees of protection. The stronger the mark, the greater protection it will receive.

Resist the temptation to select a mark that describes the goods or services. It is difficult, if not impossible, to protect a mark that is descriptive.  The trademark examiner, when reviewing your trademark application, will categorize a mark in one of four general categories:

  • generic
  • descriptive
  • suggestive
  • arbitrary and fanciful

On a scale of 1 to 5, a generic mark is a 1 and an arbitrary mark is a 5. A mark that is a 4 or 5 on the scale has the greatest level of protection and is either suggestive of the goods or service offered or has no connection to the goods, i.e., arbitrary.  A mark that is a 1 on the scale has no trademark protection. A mark that is a 2 on the scale, has limited protection. A mark that is a 3 on the scale is usually a suggestive mark and is protected.

Here is an example to consider in selecting a mark:

If you decided to create a magazine about mountain climbing you might select names such as the “Mt. Climbing Magazine,” the “Climber’s Journal,” “Reaching Peaks,” or even something arbitrary such as “Orion.”  “Mt. Climbing Magazine” is descriptive of the magazine, where as “Climber’s Journal,” “Reaching Peaks,” and “Orion,” will fall somewhere between descriptive and arbitrary.

Take the time to analyze your market and the goods/services you plan to offer.  Remember the strongest marks have little or no connection to the underlying product that is being sold.

The U.S. Trademark Office website is very helpful as to the procedure for filing an application and can be found here.  If you are ready to learn more about trademark attorney Tamera Bennett’s 5 Steps to Filing a Trademark Application, click here.


Copyright Lawyer Tamera Bennett Speaks at TIPLA

Dallas-based copyright attorney Tamera H. Bennett is honored to speak at the Tennessee Intellectual Property Law Association (TIPLA) Conference on Friday, May 4, 2012.

Here are links to many of the Copyright Law Update topics Tamera will discuss — with a few bonus links as well.

The conference provides a full day of CLE on patent, trademark and copyright topics.


Deals and Trends at MIDEM 2011

MIDEM 2011 wrapped in January, but the deals that were signed and forecasts given will have a long-term impact on the music publishing business.  Thank you to my legal intern Abby Kweller for assisting with research on this project.

Partial Listing of Deals:

Trends from MIDEM 2011:

It really seems like MIDEM 2011 was less about signing deals and more about how the music business and delivery of music continues to change moving forward.   A key take-away is that the music business is about successful delivery of content.  Here’s a look at the future of the music business and the MIDEM conference….

  • Techy folks attending MIDEM are out numbering the more traditional record labels and music publishers.  This year’s MIDEM was focused on content delivery and the technology to deliver the content may seem more important than the the actual content.  Overall, it seems as if content will be streamed with a flat-fee charged to the consumer.
  • Licensing is the biggest hurtle that all the parties face. With the technology in place or on the cusp of release, the tech companies and the music labels/music publishers need to come to terms on how the content owners will be compensated.
  • Is delivery of content via the Cloud the future of the music business?
  • Read this fantastic White Paper from the MIDEM conference on “Ten Lessons From the MIDEM Conference.”
  • There are great resources on trends in the music business on the MIDEM website.

The “Big Game” of Trademark Infringements?

With Super Bowl XLV a few short days away, and less than 30 miles from my office, trademark and copyright infringement of the Super Bowl trademark, and the teams’ trademarks and copyrights are top on my mind.

If the “Clean Zones” I blogged about here do not slow down the infringers, the the weather here in North Texas will discourage many infring-e-preneurs from setting up shop.

The Fort Worth Star Telegram alludes to the NFL having already secured John Doe Temporary Restraining Orders to enforce the NFL’s rights in the registered trademarks of Super Bowl and NFL.  The teams each own their individual trademarks in the team names and logos.

I also blogged about the trademark issues surrounding the World Series here.

 

 

 

 

 

 


Recording Artist and Songwriter Income Streams

Sometimes we need to step-back and have a music business 101 post. 

This link will take you to a summary on the four primary royalty streams in music publishing: mechanical, print, synchronization and performance royalties.

This link is to a chart on the income flow related to a recording artist.

Both documents cover the basics and are a good place to get started.  Be looking for Texas music lawyer Tamera Bennett’s subsequent post on the basic flow of record label/artist royalties when an independent record label uses a digital aggregator to make tracks available from retailers such as iTunes and Amazon.


Do I Need A Music Lawyer?

Some of the best advice to give a person/band desiring a career in the music business is to hire a music lawyer.

After that advice, the next question is “when.” When do I need to hire the music attorney?

Before you call a music lawyer, Tamera recommends you read one or more books related to your career in the music business.  Click here for Tamera’s recommended reading selection.

After you finish your reading homework, when to visit and/or hire a music lawyer really does vary from situation to situation.

I am a Songwriter:

  1. If you are a songwriter, you probably do not need an attorney until you have a contract from someone wanting you to assign your copyright or to license your song.
  2. Music lawyer Tamera Bennett typically is retained when a collaboration agreement, copyright assignment, single song agreement,  exclusive songwriter agreement, or synchronization license has been presented to a songwriter or music publisher.

I am a Recording Artist, Band, Producer:

  1. If you are a recording artist, band or producer you probably do not need an attorney until you are playing frequent gigs and have a “buzz.”
  2. As with songwriters, Tamera has found she can best assist artists/bands/producers when a contract is already on the table.  It may be time to call in a music attorney when you are presented with a management agreement, a shopping agreement, a production agreement, or record deal.
  3. Keep in mind that a band should typically seek legal advice early on so that a band agreement, partnership agreement and/or formal business entity can be established to spell-out the rights and obligations of the band members.

Can you Pitch my songs?
Most music business books recommend artists and songwriters hire a lawyer to pitch their demos to help secure a songwriter’s agreement or a record deal.  That is great advice, but you really want to make sure the attorney you use has the contacts you need in your specific genre.  As an example, an attorney with contacts in the country market may not be the best fit for a Rap artist.  Tamera’s practice is focused on guiding clients through the music business legal maze so at this time she does not provide pitching as part of her client services.

I want to know how to get started in the music business and protect my songs?
Tamera is often contacted by musicians and artists with questions on how to get started in a music business career, what mistakes to avoid, and how to protect songs, beats, master recordings.  Tamera has found musicians/songwriters receive a greater benefit by reading Tamera’s blog post here for links and information on how to get started in the music business than by scheduling a consultation too early in their career.  Tamera also highly recommends you read at least one of the music business books listed here before you contact a music lawyer.

What if I get sued?
If you think you need to sue somebody or you have been sued, you need to immediately contact a litigation attorney that is familiar with music business issues.  You typically want to hire a litigator that is located in the county where the lawsuit is filed, or an adjacent county.  Tamera helps clients with transactional/contractual matters, but she will provide you names of litigation attorneys that may be of assistance.

Is there a Consultation Fee?
Different attorneys and law firms have varying policies on the fee that may be charged for a consultation.  Whether or not a consultation is charged may also depend on the region of the country where you are located and is typically a business management determination made by the law firm.  A lawyer having or not having a consult fee is not a reflection on the quality of services you will receive.  At this time the Bennett Law Office firm policy is to charge a reasonable consultation fee.

 


Texassports.org: University of Texas Lost Bad Faith UDRP Action

The University of Texas was unsuccessful in a bad faith domain name action to acquire http://www.texassports.org.

The University is the owner of www.texassports.com and registered trademarks for:  TEXAS, UNIVERSITY OF TEXAS, TEXAS LONGHORNS, and LONGHORNS.  In particular, TEXAS is registered for “Entertainment services, namely, providing college athletic and sporting events.”

In the UDRP action, the University asserted http://www.texassports.org was registered in bad faith, that the registrant had no legitimate rights to the name, and the use of the domain may cause confusion with the University’s http://www.texassports.com domain.  The domain http://www.texassports.org was used as  “parking” website for information related to University of Texas sports and sporting events.

To be successful the University needed to prove:

the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

the Respondent has no rights or legitimate interests in respect of the domain name; and

the domain name has been registered and is being used in bad faith.

The UDRP panel found http://www.texassports.org defense persuasive:

“Texas sports” is geographically descriptive and not protected by trademark.  The University does not have the exclusive rights to “Texas” and “Sports.”  The University does not have a registered trademark for “Texas Sports.”  There is no likelihood of consumer confusion.

The University did not prove “bad faith.”  Again, common, geographic terms are not typically going to rise to the level of a bad faith acquisition.

More about the UDRP decision may be found here.


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