My trademark prosecution flowchart was a real hit, and has helped a great many of my clients, so I thought I would do the same for copyright expirations.  Of course, this is just general information, and if you have a copyright issue, you should contact an attorney with intellectual property knowledge.

Copyright Expiration Flowchart (PDF)

For years, there have been different standards for the enforceability of non-compete clauses put forth by various appellate courts in Illinois.  The recent Illinois Supreme Court opinion in Reliable Fire cleared up these murky waters, but in doing so, made it clear that the totality of the circumstances based upon very fact specific analysis on a case by case basis.  In short, we now have a test, but the test gives little specific guidance.

 Facts

Reliable Fire’s facts weren’t that much different from most non-compete clause cases.  Two employees sign non-compete clauses during employment and one-year after for the area of Illinois, Indiana, and Wisconsin.  Employees start a competing business, are fired, and sued.  Whoosh, here they are at the Supreme Court of Illinois and an opinion issued.

Before Reliable Fire

Many accepted that so long as a restrictive covenant was ancilliary to an employment relationship, it would be held as reasonable and enforceable if it (1) is no greater than needed to protect the legitimate business interest of the business, (2) doesn’t impose undue hardship on the employee, and (3) doesn’t injure the public.  This is the so-called three prong test, but is really 4 pronged, as it assumes ancilliarity.

However, in Sunbelt Rentals, Inc. v. Ehlers, 394 Ill. App. 3d 421 (2009) an the court concluded that reasonableness was not tested by the three prong test.  Of course, this led to a great deal of confusion as to what the actual test was.  Sunbelt misread the previous law which the Supreme Court, in the Reliable Fire case, “emphatically disagree[d] with,” stating that “[e]ven a cursory review [of the case cited in the Sunbelt opinion] refutes this reasoning.” The Supreme Court in discussing the erroneous opinion points out that error was propagated further by Steam Sales Corp. v. Summers, 405 Ill. App. 3d 442 (2010).

Reliable Fire Brings Us Back

Reliable Fire emphatically proclaimed that the three prong test was the test to use in restrictive covenant matters.  In addition, all the factors that had been created over time, and disseminated by appellate court opinions, including but not limited to

Acquiring of confidential information;

Nature of the business; and

Customer-relationship permanency,

were held contrary to the test “to the extent [they] are conclusive,” to the . . . general principles pertaining to . . . the totality of the circumstances of a particular case.  Why bring this up?  Because factors are okay, but they are not conclusive, none have more weight than others, and in the end, the Court held “that such factors are only nonconclusive aids in determining the promisee’s legitimate business interest, which in turn is but one component of the three prong rule of reason, grounded in the totality of the circumstances.”  In short, feel free to consider them, but they don’t mean jack in the end.

Reliable screams, use the three-prong test and don’t get hung up on factors, because it is all about the totality of the circumstances.

USPTO Logo

The state of the United States’ patent system has been pretty static since 1952, other than some case law explaining what can and cannot be patented. However, the system itself hasn’t really changed. The America Invents Act, 125 Stat. 284-341, significantly changes the system. A breif, and by no means complete (for isntance, the expansion of prior art is outside the scope of this post), review of this new law follows.

In short, the Act switches the patent system from a first to invent system to a first to file system. Further it eliminates interference proceedings and further developes post-grant opposition proceedings. This Act puts the United States patent system in greater sync with most patent systems in the world. The Act goes into effect on March 16, 2013.

First to File

Before the Act the first person to invent a patentable invention was entitled to the patent on that invention. Under the America Invents Act, and its restructuring of the system, the first person to file the patent application gets the patent. The practical consequence of this is that if two people invent at nearly the same time, the first to file the application will get the patent. In the past, there would be an argument to determine who had actually invented it, and the inventor who won would be awarded the patent.

Opposition

In the past, there were ex parte reexamination procedures. Under the new Act, this will be retained and in addition there will be the ability to submite prior to issuance and expands the inter partes reexamination, as well as adding post-grant review.

What Can Inventors Expect?

You can expect to have much more narrowly claimed inventions. There will likely be less time spent trying to claim as much as possible under the patent, and there will be a race to the USPTO with claims that are appropriate. In addition, those persons falling in the “micro-entity” category are allowed a 75% discount on patent fees paid to the USPTO during the prosecution process. However, these smaller entities may have trouble beating those with sophisticated legal counsel or large patent departments to the filing with the USPTO.

I should be clear that as an intellectual property lawyer and a person who respects property rights the protection of intellectual property rights is very important. Further, I believe that the intellectual property regime as instituted in the United States and most other countries provides incentives that have made the United States competitive in the global marketplace. Patents provide incentive to spend the money to invent useful items through a temporary monopoly. Trademarks provide the consumers knowledge of where their goods are sourced from, allowing for consumer protection. Copyrights provide the incentive to create art, knowing it can be protected and will not be copied. However, SOPA is overkill in protecting these rights.

The bill would allow the United States Department of Justice to bar online advertisers and payment facilitators from doing business with websites, bar search engines from linking to the sites, and force ISPs to block accessing the site. It also allows ISPs to voluntarily shut down such sites and give them immunity in doing so.

The point of intellectual property is to provide incentives to invention and creation. This bill will undo just that. Currently, the United States is the leading jurisdiction for internet innovation, with services like Google, Twitter, and just about any of the big name tech companies being housed here. The Consumer Electronics Association, Microsoft, Google, Twitter, Business Software Alliance, Ebay, Yahoo, and others have all came out against the bill. With this bill, self-censorship could become the norm and US companies ability to innovate may be severly hampered. Further, open source projects including Mozilla (of which the popular browser Firefox was born) could be shut down.

Further, streaming of copyrighted materials is to be a felony, an incredibly harsh sanction. The ISPs will be forced to monitor all internet traffic, exactly the type of privacy invasion that has been fought against in the past.  Further, the law extends beyond the borders of the United States.  Some may believe this to be necessary, but I believe it to be beyond the bounds of the United States in the world.  This combined with little to no manner to defend takedowns for those using the allegedly protected materials with defenses involving the first amendment, lack of actual protection, or other defenses makes it a truly terrifying possible law.

Finally, the United States operates on due process. You have your day in court or some sort of hearing before actions are taken. Currently, even under the DMCA regime, in which letters are sent and content providers have to take down alleged infringing material, 41% of the complaints studied were from the competitors of the targets and many more were legally insufficient.  Source.  Later, in 2009, Google stated that 59% of its complaints were from competitors. SOPA goes even further. In short, the ability to cause whole websites, or even businesses to be shut down through an alleged violation, without a day in court is simply un-American.

SOPA is a terrifyingly broadly written law.  While it may be in the spirit of doing the right thing, the fact that a chunk of the industry it seeks to protect as well as its overbroad scope and draconian measures make it a tool inappropriate for the job at hand.  Perhaps re-writes will help it become a reasonably tailored law.

I will discuss options for protecting their creations, including trademark and copyright laws, and explain why patents do protect, and why they are not typically applicable to writing.  I’ll explain the process for obtaining these intellectual property protections, the remedies they provide, and what can be done even without formal registration.

In addition, I will be discussing small business law.  Many authors may want to start their own publishing companies for self publishing, or seek to protect themselves in transactions.

I will then have what I hope is an extensive Q&A, as I can only give so much information that people likely don’t care about.

Unfortunately, its not that easy.  Services such as Blogger and WordPress rarely simply take things down for alleged defamation.  They will require a court order.  In addition, many times, my potential client has been posting all over trying to figure out how to remove the defamatory statements, not realizing that, by linking to the blog, he or she is increasing its prevalence on search engine results.

Regarding cost, its the typical lawyer answer, but it depends.  This can depend on how easy it is to prove who the to-be-defendant is.  In addition, it can depend on how much of a fight the other side puts up.  So, in short, it varies.

The internet isn’t like a paper or television program wherein the defamation disappears after some time.  Like diamonds, the internet is forever.  You may wish to contact an attorney who practices in internet law for a consultation if you have been defamed online.

What exactly is a Trademark or Service Mark?

Any mark – a word, phrase, logo or combination that is used to identify the good or services of a supplier.  Basically, it distinguishes your product or services from someone else’s.

Can I Use ® or ^TM?

You can use the TM symbol at any time, even before filing.  However, you can only use the ® symbol after successfully obtaining a federal trademark registration and keeping it valid.

Do I need to “trademark” my business name, and does that require an attorney?

By simply using the mark to distinguish your goods or services, you have some common law trademark rights.  However, the successful pursuit of federal trademark registration through the United States Patent and Trademark Office (USPTO) will result in stronger and nationwide protection.  You don’t necessarily need an attorney to do so, but an experience trademark attorney certainly doesn’t hurt.

How long does it take to obtain a trademark?

As I mentioned above, if you’re asking this, you may already have common law protections.  However, a year, give or take a few months is a good gauge of how long the process can usually take.  See my trademark application flowchart to understand all the steps involved.

You keep talking about common law protections, what are they?

The simple use of a mark that is distinctive and has secondary meaning in the marketplace is enough to get you some minimal and regional protections from others using the mark.

If I have common law rights, why would I file for a federal mark?

Nationwide protection.  Presumption of ownership in court.  The ego boost of using the ® symbol.

Can I file for my name and logo in a single application?

No.  Each is a separate mark and must be prosecuted as such.  For a recommendation on which to pursue if you are only to pursue one, feel free to contact my office using the contact sheet to the right.

Can you trademark domain names?

Yes, but it has to actually be used to distinguish your goods or services.

Someone is using my trademark, can you help?

Yes, contact me regarding trademark infringement litigation.  If I can’t help you, I will help you find someone that can.

As an Illinois Collection Lawyer, I have had clients wonder whether or not they should pursue judgment against a debtor because of the up-front suit costs.  While I operate on a contingent basis, i.e. I don’t get paid unless your business does, I do require that suit costs be paid up front.  This amount can be as little as $100 or as much as $250.  Clients worry that they are throwing good money after bad.  I believe any time that the debtor has the funds to pay the money owed a judgment should be obtained in order to provide my clients with leverage in enforcement, and thusly, getting their money.

When You Shouldn’t Pursue a Judgment

I never recommend that a client file suit when it appears the debtor is judgment proof.  That is, even with a judgment, the court won’t order that blood to be squeezed out of a turnip.  If there are no funds, there are simply no funds.  This situation leads to good money being thrown after bad.  Another situation is when a business has folded and there is no personal guarantee on the money owed.  This is also not likely to lead to a collection, and I’d not recommend a suit be filed in this case either.

Why You Should Pursue the Judgment

Once you have a judgment, the Courts have said A IS OWED MONEY BY B.  The weight of the court and the fact that there is no more arguing about whether the money is owed are powerful tools you can now  leverage.  After this, a letter from an attorney explaining the situation will often result in payment.  In addition, with a judgment, a lien can be placed on real property of the debtor.  Even if the debtor doesn’t chose to pay and remove the lien, if the property is ever re-financed or sold, you will get your money.  Finally, the judgment allows you to pursue remedies such as wage garnishments, citations to discover assets, and other post-judgment only methods of collecting the sums.

Debt Collector and Debtor Middle Ground

The FTC made it clear that it is trying to find middle ground between creditor’s rights – “most debts incurred in life do not simly vanish upon death” – and the fact that the relatives and significant others of a deceased debtor are vulnerable, and that some collectors have taken advantage of that fact.  In fact, collectors need to communicate with someone besides the debtor, as the debtor has passed.

In short, the 33 page Statement of Policy provides guidelines to help debt collectors ensure they do not cross any lines.  Of note, there is no mention of any sort of time period after a death in which collectors of debt cannot attempt the collection.  Of course, the author of this entry would hope that debt collectors would use good judgment with respect to attempts at collection.

Who The Collector Can Communicate With

The debt collector can communicate with the following people:spouse, parent, guardian, administrator or executor of the estate, or any other person having the “requisit authority” – personal representatives under informal probate procedures/summary administrators, those appointed as universal successors, and those disposing of the assets of decedents.

How to Locate Those Able to Communicated With

The FTC will allow debt collectors to call the person persons allowed previously for location, with the ability to now note that the collector is allowed to make reference to “oustanding bills.”  This allows for the collector to get information other than the person has passed while protecting the reputation of the deceased.

Need a Debt Collection Attorney?

If you are looking to collect on a debt owed, or have been harassed by debt collectors, you may want to contact a debt collection attorney.  You can use the contact form to the right to contact my office if you wish.

It can be viewed here, with permission of togamag.