Category Archives: Intellectual Property Law

What is a Common Law Trademark?

A common law trademark is a right at common law to certain names, sentences or logos that you very often use in connection with your product. You can have common law trademarks rights without having your trademark federally registered. A common law trademark, however, can only be enforced within a certain area, where it is used.



What is the Penalty for Wrongly Using the (R) Symbol?

This symbol serves to signify that a particular brand is registered with the federal USPTO office. A simple application to have your trademark registered with the USPTO does not give you the right to use the ® symbol until the trademark has been officially registered. 



8 Consejos para Proteger tu Invento (Pt. 2)

#5 Solicitar una Patente es una Inversión en sí. Obtener una patente es un ejercicio de mostrarle al USPTO que lo que estás solicitando es útil, novel y no-obvio. Si tus reclamos (“claims”) cumplen con esos criterios, se te puede otorgar una patente. La solicitud consiste a grandes rasgos en una descripción altamente detallada del…   + Read More…



8 Consejos para Proteger tu Invento (Pt. 1)

La protección de los derechos sobre inventos, procesos, fórmulas y diseños le corresponde principalmente al régimen de Patentes. Las patentes forman parte del régimen de Propiedad Intelectual, donde se encuentran además: los derechos de autor; las marcas; y los secretos comerciales. Estos 4 campos están relacionados, pero no son lo mismo. Cada uno protege distintos aspectos de las creaciones humanas.



Cómo Vender Diseño (Pt. 2)

Establece tu “rate” por hora: uno que cubra tu tiempo, materiales y toda la operación, salvando un porcentaje de ganancias. Cuando halles este número, podrás presentar con confianza ante cualquier cliente. No se trata de improvisar, se trata de cononcer tu “rate” por hora, y estimar a base de eso. Cobra a base de lo que cuesta toda la operación, porque de otra forma ese costo saldrá de tu ganancia.



Cómo Vender Diseño (Pt. 1)

El primer paso en una contratación de diseño no es enseñar el trabajo que harás. Es ganarte la confianza de la persona quien te contrata, y dar a entender en esos primeros minutos, que tú quieres hacer negocios, y que sabes hacer negocios. Es dejar saber que el cirujano, el ojo clínico y el especialista eres tú, por eso él debe depositar su confianza en tí para planificar un proyecto y llegar a una contratación.



Mitos del Copyright #4 – “Yo Compré la obra, Puedo Hacer lo que Quiera con ella” (Pt. 1)

Vendiste una obra en una exhibición. El comprador le toma una foto y la sube a su blog, reconociendote como autor. La cuelga en su sala, pero decide pasarle un pequeño brochazo para integrarle tonos más acorde a su pared. Retrata su sala y convierte la imagen en una postal. Hace doscientas copias y las regala en su blog. Al dorso de la postal, junto con su “copyright notice”, incluye tu nombre como autor de la pintura.



Mitos del Copyright #5 – “Yo compré la obra, puedo hacer lo que quiera con ella” (Pt. 2)

Retomemos el ejemplo del pasado artículo. El comprador le pasa un brochazo a tu obra para ajustarla a su pared. No favoreces la intervención; sin embargo, te percatas que la ley de Copyright federal no te protege frente a una alteración de esta índole. No se contempla en el “bundle of rights”.



Mitos del Copyright #3 – “Tengo que Incluir un ‘Copyright Notice’ para que Exista mi Derecho”

Actualmente, el “Copyright Notice” es el mecanismo utilizado para hacer visible a terceros la protección de la obra por un derecho de autor. Consiste en incluir junto con la obra todo lo siguiente:  1) la letra “c” dentro de un círculo o la palabra “copyright”; 2) el año de publicación inicial y; 3) el nombre del autor o autores.



Mitos del Copyright #2 – “Si me Envio la obra por Correo y no abro el Sobre…”

Este método se conoce como el “poor man’s rule”, y propone que si uno adjunta en un sobre copia de, por ejemplo, una composición en guitarra grabada en un disco, y se la envía por correo a sí mismo y no abre el sobre, hará constar, por el sello postal, la fecha de la creación de la obra.  En la eventualidad de surgir una disputa entre dos o más personas sobre la autoría de esta, el sello postal autentica al recipiente y la fecha.



Mitos del Copyright #1 – “La obra Tiene que Estar Registrada para Adquirir Derechos”

Los derechos de autor son derechos patrimoniales otorgados por las leyes de los Estados Unidos, principalmente a través del Copyright Act de 1976, sus subsiguientes enmiendas y tratados, a creadores de trabajos artísticos y literarios (escritos, canciones, pinturas, fotografías, bailes, programas de computadora, compilaciones, entre otros) sobre obras que cumplan con dos requisitos: que sean originales, y que estén fijados en un medio tangible de expresión.



Olvídate de Pegar una Canción (Parte 1)

El problema con la industria no es que falte talento, es la sobredosis del mismo. Entonces el reto de cada artista debe ser crear una propuesta única dentro de todo el ruido saturado que son los medios.



Olvídate de Pegar una Canción (Parte 2)

Ahora consumimos, creamos y curamos el contenido todo a la vez. Ganar la atención de cualquier público es un ejercicio de suprema deliberación y ejecución incansable. Más que nunca, la popularidad de un artista depende de factores más allá de su música.



How to Protect your Business Against Trademark Bullying?

Trademark bullying is the process of large worldwide famous companies aggressively asserting their trademark rights over smaller businesses. Even though it is a common practice in the trademark world for trademark owners to “police” the use of their trademarks in the market, sometimes big companies take this “policing” a step further, counting on the inability of small businesses to finance prolonged court litigation over their trademark rights.



What do I do if my Instagram Account has been Disabled?

Instagram reserves the right to disable accounts that it believes violate their Community Guidelines or Terms of Use without warning. Accounts that have been determined to be in repeated violation may be permanently removed.  So, what exactly are Instagram’s community standards and terms of use?



How Does the EU Data Privacy Regulation Affect U.S. Businesses? (Part 2)

What are the Rights of Data Subjects? Persons (i.e “Data Subjects”) are entitled to several rights in regard to their personal data, including: Right to be informed – about the collection and use of their personal data; Right of access – to their personal data; Right to rectification – data subjects can ask data controllers…   + Read More…



How Does the EU Data Privacy Regulation Affect U.S. Businesses? (Part 1)

This regulation relates to both data privacy and data security. Data privacy is the right to control how information is collected and used; focusing on the use and governance of data. Data security, on the other hand, is focused on protecting data from, for example, attacks and exploitation of stolen data.



What is Important to Know About a Publishing Contract (Part 2)

Typically, an author does not receive royalties until the advance has been recouped. The advance is an advance against royalties. Usually, the amount paid to the author will depend on the format of the book being sold as well as on the book retailer selling it.



What is Important to Know About a Publishing Contract (Part 1)

The general trend in the publishing industry today is the growth in sales of ebooks and a decline in the print market. In 2018 it was observed that the bestseller lists have become dominated by mostly political works. Additionally, there is an ever-increasing boost in sales of works adopted for movies and TV series. 



How does the California Consumer Privacy Act Affect Florida Businesses?

California enacted the California Consumer Privacy Act (“CCPA”) on June 28th, 2019, made effective on January 1st, 2020. The CCPA is the nation’s first comprehensive state data privacy law. The CCPA provides several new rights for California consumers regarding their Personal Information.



How to Prevent Cybersquatting

Cybersquatting or domain sharking is the act of registering, trafficking in, or using a domain name that is identical to, or confusingly similar to a registered trademark, with the bad faith intent to profit from the goodwill of someone else’s trademark. By doing this, cyber squatters prevent anybody from buying the domain.



How to Patent Internationally

It is worth noting that the granting of the patents still remains in control of the national or regional patent offices. This is due to the fact that there is no universal patent law, and each nation has different legal standards for granting patents as well as enforcing them.



Design and Author’s Rights (Part 2)

The expression of the idea, being the artist’s intention – the artist’s purpose in creating that work. If we assume that the work is called “post post post modernism”; that would be the expression.



Design & Author’s Rights (Part 1)

Intellectual property consists of four regimes of law that govern different aspects of human creations – that’s why it is called “intellectual” property; they are born from the intelligence and imagination of human beings. These laws are copyright, trademarks, business secrets, and patents.



Copyright Myths # 5 – “I Bought the work, I can do what I want with it.” (Part 2)

The right of attribution refers to the author’s power to be recognized as the creator of his work, and therefore the power to affirm that he is not recognized as the author of a work he has not created. It also implies the alternative of attributing a pseudonym or remaining anonymous.



Copyright Myths # 4 – “I Bought the work, I can do what I want with it.” (Part 1)

The Copyright Act of 1976 grants a series of exclusive rights to the authors of original works – reproduction of the work in copies; distribution of those copies; derivative works; public display; public execution and; transmissions.



Copyrights Myths #3 – “I have to Include a ‘Copyright Notice’ for my Right to Exist.”

The most important function of the Copyright mechanism, for works created today, is that it serves as a warning for persons who improperly appropriate them or infringe on any copyright.



The Digital Millennium Copyright Act

The term ‘service provider’ means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.



How to Protect your “Ideas”

An idea in a vacuum does not have much inherent value. The protection you may have over your “ideas” – that is, concepts and thoughts that have not yet been realized – arises primarily from two sources – intellectual property rights and contractual obligations.



How to sell Design (Part 2)

You offer a service of which you are an expert; However, you have to justify that value. The goal is for the client to understand the value of the service.



Forget About Landing a “Hit” Single (Part 2)

“Winning the attention of any audience is an exercise of supreme deliberation and tireless execution. More than ever, the popularity of an artist depends on factors beyond his or her music.”



Forget About Landing a “Hit” Single (Part 1)

Do you want to know what is wrong in the music industry? The problem with the industry is not that talent is lacking, it is the overdose of it.



How to sell Design (Part 1)

Most clients, in those first meetings, are looking to know what you are thinking as a designer, so they can then go to another one with whom they have more trust so they can do a similar job to the one you presented. Many times, they end up doing poor work.



Copyrights Myths #2 – “If I mail Myself my work and I don’t open the Envelope…”

…I can vindicate my rights without having to register it” – is not correct. This method is known as the “poor man’s rule,” and proposes that if one encloses in a copy of, for example, a guitar composition recorded on a disc, and mails it to his or herself and does not open the envelope, this will evidence, by the postal stamp, the date of the work’s creation.



8 Things to keep in mind when Inventing (Part 2)

Once the application is submitted, a rigorous evaluation by USPTO officials follows, to certify that what you present as your “claim” in your application is useful, novel and non-obvious. It is also used to check that there is no current patent on it.



8 Things to keep in mind when Inventing (Part 1)

Applying for a patent can be viewed as a contract between inventors and the public (government) in which inventors, in exchange for making their invention public, are granted a limited monopoly over it.



Copyrights Myths #1 – “The work must be Registered to Acquire Rights”

There are two requirements for copyright – originality and fixation on a tangible means of expression. 



A Music Artist’s Dream Team

Equally essential elements converge with music that deserve the attention of experts, such as the artist is to his art. Examples are image creation, distribution strategies, and alliances with entities that invest in, or subsidize, efforts.



Trademark Registration With U.S Customs and Border Protection

With a validly registered trademark with the USPTO, the United States Customs & Border Protection (“CBP”) offers further protections with the ability to record that trademark through them as well.



What is the Nice Agreement?

With a total of 45 individual classes, the Nice Agreement establishes international classifications of trademarking goods and services.



Can I Self File with the USPTO If I Am a Foreign Applicant?

New trademark laws state that any trademark filer that is domiciled abroad must appoint and be represented before the USPTO by an attorney who is licensed to practice law in the United States.



Can You Trademark a Sound?

An individual may apply to register a sound with the USPTO, but the federal courts have held that the sound must be “so inherently different or distinctive that it attaches to the subliminal mind of the listener, to be awakened when heard, and to be associated with the source or event.”



Do You Need a Trademark to Sell Your Product on Amazon?

While Amazon offers a variety of ways to sell on its website, one of the most popular and advantageous to sellers is the Amazon Brand Registry.



How can Foreigners Start a Business in the United States?

Starting a new business in the US can be intimidating, especially for those that are not US residents.  However, starting a business in the US is not as complicated as you may think.  In any case though, it is best to contact a business attorney to ensure everything goes smoothly and there are no future…   + Read More…



Why Should I Federally Register My Trademark?

A Federal trademark registration will greatly enhance your rights. U.S. trademark rights are created through the use of your mark in commerce, however these use-based rights are just common law rights and only apply to a specific geographic area.



What is Florida’s Uniform Trade Secrets Act?

Florida, among 48 states, has adopted its version of the Uniform Trade Secrets Act known as FUTSA. The purpose of the Act is to ultimately protect one’s intellectual property, ideas and certain types of confidential information.



Copyright Trolls

These are parties that have no interest in using or selling the photos, or other works, they own copyrights for. They may be photographers who own pictures or website who have licensing from photographers. They then purposefully make their pictures readily available online, like on Google.



Online Trade Dress Infringement

Trade dress infringement claims are no longer solely about whether a producer is infringing upon the other because of the packaging or design of a product. Now trade dress infringement also encompasses whether an online user is infringing upon another user’s YouTube channel or blog by copying the name or the content.



Damages Under Lanham Act

The Act permits the injured party to recover (1) any profits the defendant made off the use of the trademark, (2) any damages sustained by rightful owner of the trademark through the unlawful use by the defendant, and (3) the costs of the court action. If the trademark infringement is particularly shocking or offensive, then the court can award the injured party three times the actual amount of damages.



Trade Dress Infringement

Trade dress infringement occurs when one product’s design or packaging copies that of another product to the degree that there is confusion in the minds of consumers.



If I use old patent drawings as art does it violate Copyright or Patent law?

Let’s begin with, what are patents? Patents are a government-issued license that gives an inventor the exclusive ability, for a period of time, to make, use, or sell an invention of their creation. Usually, the inventor will submit a drawing and description of the invention that they intend to have patented. Once approved by the…   + Read More…



How many DBA’s can a FL company have?

We’ll keep it short and simple this time. Every state has different regulations on DBA’s. For all intents and purposes, we’re just focusing on Florida for this blog. Florida state law requires a limited liability company (LLC) to operate under the legal name contained in their Articles of Organization. However, the legal name may not…   + Read More…



When a fashion model is hired to do pictures, who owns the photographs?

If you are reading this blog, you are probably facing copyright issues as either a model who feels that their copyrights were infringed by a photographer who hired you or a photographer who feels that a model is using your work with other photographers, infringing on your copyright. Under federal copyright law, the author of…   + Read More…



What type of social media posts are admissible in court?

As in with all pieces of evidence, we must ask the same question when it comes to Social Media Posts. Shall we let it in? However, unlike a contract or a scribble on a sheet of paper, social media posts pose a different, yet similar hurdle to clear to admissibility. As would be the case…   + Read More…



Can you claim trademark infringement on Google Adwords?

Google allows businesses to purchase advertising space, causing your advertising material and website link to appear more prominently as a result of a search for a particular keyword. However, companies that have a trademark on certain words may have a case for trademark infringement for these types of actions. In 2017, the Tipsy Elves, LLC…   + Read More…



What is Trademark Infringement

Trademark infringement is the unauthorized use of another trademark or service mark (or a substantially similar mark) on competing or related goods and services. Trademark law protects a trademark owner’s exclusive rights to use a trademark when use of the mark by another would be likely to cause consumer confusion as to the source or…   + Read More…



Can Facebook Live videos be considered as evidence?

Social media seems to evolve from minute to minute. Previously, we explored the admissibility of social media posts as evidence in a trial, and what obstacles there were into admitting the post. In Trail v. Lesko, No. GD-10-017249, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194 (C.P. July 3, 2012), the Court gives examples of…   + Read More…



How to : Authentication of Evidence and Social Media

Social media has a big influence in our lives in today’s age. Social Media is defined by Merriam-Webster as forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content. There are various social media platforms such as Facebook,…   + Read More…



Is Franchising right for you?

Let’s begin with the basics. To understand what we’ll be talking about in this blog post, you must first know what defines a Franchise. Franchise.org defines Franchise as a “method for expanding a business and distributing goods and services through a licensing relationship”. These relationships are defined by the franchisor (the entity or person granting…   + Read More…



Check out this treaty that protects your trademark further!

The Madrid Protocol treaty permits holders of U.S. trademark to extend their trademark rights globally into over 80 countries by filing requests through the U.S. Patent and Trademark Office. However, this treaty does not create a global trademark that can be used in every single country in the world. How does this work? When a…   + Read More…



Help! I’m liable for trademark infringement!

Although corporate officials often underestimate the degree of liability that could befall them when performing corporate duties and responsibilities, there are certain situations where an officer can be personally liable for actions that cause the corporation to infringe the property rights of other parties.  A corporate officer acting within official capacity is generally shielded from…   + Read More…



For the musicians in life!

When considering copyrighting a musical work, it is important to distinguish between a musical composition and a sound recording, which are both aspects of music that are eligible to be protected by the same individual or multiple individuals at once. Additionally, sending a musical composition doesn’t necessarily mean that there is a claim to copyright…   + Read More…



WIPO and what it does for your brand!

Business and commerce is becoming more and more globalized. Concomitant with this increase in globalization, intellectual property needs more protection, especially internationally, more now than ever before. The United Nations has created an organization —The World Intellectual Property Organization (“WIPO”)—that provides global services for protecting intellectual property (“IP”) across borders. The WIPO provides four services…   + Read More…



Trademarks: Contested v. Uncontested

Some may assume that once a federal trademark registration is obtained it grants the exclusive right to use the mark on particular goods or services and can readily prevent use of the mark by any other party. However, trademark law is more complicated than that. In reality, having a trademark registration, even a valid and…   + Read More…



Federal Intellectual Property – What you should know about securing a judgement.

Federal law does not preempt state law, and the financing statement of a federal trademark should be filed with the secretary of state. With that said, the US Patent and Trademark office (“USPTO“) provides a method for recording a security interest in trademarks and patents. Here are some things to keep in mind. Once you…   + Read More…



R is not for railroad or movie ratings…

One of the easiest ways to protect your brand is to Trademark it. Keeping that in mind, it is unlawful to use the Registered (®) symbol, if not actually registered first. Now, what does it mean? It means that if you’re undergoing the process of a trademark registration, you may use the Trademark (™) symbol…   + Read More…



EPGD’s 10 Steps to Start A Business

As times change, businesses change as well. We’ve seen a boom in entrepreneurial businesses throughout South Florida. If you find yourself feeling the bug, here are EPGD’s 10 simple steps to starting your own business.



What is a DBA?

It is important to note that a fictitious business name is not the same as a trademark.  Entities like trademarks, service marks, corporations, and limited partnerships are legal names.  In contrast, the registration of a fictitious business name does not create any exclusive ownership rights, nor does it reserve the name against future use. 



Don’t just put a TM logo; file it!

In Florida, the general rule for trademark rights is “First In Use, First In Right.” In other words, you must be the first to use the mark in commerce. Either by selling products (for goods) or providing services (for services) before you can register the trademark.



Charlie Sheen Changed his name, you can too!

Charlie Sheen, Lady Gaga, Lana Del Rey, Bruno Mars, Jamie Foxx, they all have one thing in common. They’ve changed their name. In case you didn’t know, celebrities aren’t the only ones who can do so. If you would like to legally change your name or restore a former a name, you may do so in Florida, provided that you are 18 years of age or older and satisfy certain other requirements.  In particular, the state of Florida has set forth specific procedures, which govern all legal name changes of Florida residents. 



What are useful pointers when entering a "Joint Agreement"?

In Florida, a joint venture is not a statutory entity or form; rather, it is a contractual arrangement whereby two or more persons or entities join forces to operate a venture. Many joint ventures operate by agreement only.  The participants do not have to create a separate entity as the vehicle for the joint venture….   + Read More…



Mark Commerce international inscription

Business and commerce is becoming more and more globalized. Concomitant with this increase in globalization, intellectual property needs more protection, especially internationally, more now than ever before. The United Nations has created an organization —The World Intellectual Property Organization (“WIPO”)—that provides global services for protecting intellectual property (“IP”) across borders. The WIPO provides four services…   + Read More…



Things to Know Before You Remix Music

Remixing other artists’ music in today’s world with so much technology may seem an easy thing to do. The reality is, however, that remixing is an art and it requires talent. Nevertheless, people from all different ages and places try it because it could be very lucrative and it may be done relatively fast since…   + Read More…



What is a Fictitious Business Name?

An important aspect of establishing a business is finding the right name under which a given company is to conduct its business.  While some business owners choose to use their own legal name, such as “Jane Smith’s Hair Salon,” others might prefer to use a catchphrase or a term associated with the nature of the business or its product, for example “Jane’s Cuts,” or “Fashion Cuts.”  In the latter case, the business is said to operate under a fictitious business name.



How to Register a Florida Trademark

In Florida, the general rule for trademark rights is “First In Use, First In Right.” In other words, you must be the first to use the mark in commerce. Either by selling products (for goods) or providing services (for services) before you can register the trademark.