Infringement

This is a page in progress. The goal being to provide copyright/trademark infringement information via educational links, insurance & legal links, to encourage intolerance of copyright infringement as a community of public opinion, in addition to what is already established LAW!

Learn to protect your works, respect others', and promote legal follow-through....but moreover, to prevent this crime before it starts, through education. Thanks for coming and we welcome your input and informative links you may wish to add! The fact that you are here and curious to learn is an important step towards professionalism within our craft! Thanks for coming!!!

You can e-mail me at: Carol Ochs - SimplySoap@aol.com

Why This Site?

I put up this site at the encouragement of several fellow soapmakers, and as a response to having personally experienced copyright infringement on my intellectual material on several occasions.....occurring in the following ways:

Copyright Infringement

1)Theft of my business website design and content information, including theft of my product photos with my label design in the photos,

2) Theft of my physical brochure design and content,

3) Theft of my product label design.

Trademark Infringement

4) I have also been made aware of several others using my Simply Soap company name I own the registered trademark on. I have prosecuted two cases of individuals who would not stop using my name upon my request, and won both cases.

Clearly, there is a real NEED for education on this topic.

A BIG part of the problem is that many within our own industry look the other way and ignore it when they see infringement taking place. Fortunately, a large number recognize it as the crime it is, are repulsed by this crime, and have been very proactive in being "eyes" for others in the soapmaking community and do not hesitate to report it when they see infringement taking place. Kudos to them! Keep up the great work!

Ignoring this problem contributes to an atmosphere that it's OK to do, or doesn't apply to you if you're a small soapmaker who only sells soap one Sunday a month at your church bazarre, or you only give your soap away as gifts. Please do not be part of spreading this attitude that it's OK. ANYTIME you use another's trademarked name on your product, whether given or sold, you are representing that company name illegally. YOUR transgressions, business practices, poor product, or bad labeling practices become the problem of the one whose name you are using illegally! Hence, why you can be sued for:..............

If you are an infringer and are discovered, you can consider yourself fortunate if the copyright or trademark owner is congenial enough to call, e-mail, write or fax you and ask you to refrain from your violation ,and you are intelligent enough to do so. It will save you a lot in time and expense, among other headaches. If there is a discrepancy regarding who was using the material in question first, have dated copies of your use, registered copyrighted/trademark, or some other proof.

If it gets to court, and court finds that copyright or trademark infringement has occurred, it can award the copyright or trademark owner money damages for any loss suffered because of the violation, or the amount of receipts made by the violator that the copyright owner could potentially have had or, in the alternative, statutory damages assessed by the court on the basis of how intentional the violation was.

The court can also:

- Order the violator to cease it's violation.

- Impose TRIPLE the amount of actual damages on repeat offenders, including lost sales or damage to the copyright or trademark holders reputation.

- Order the violator imprisoned for up to 10 years if the violation was for personal or financial gain.

- Order that all attorney and court fees be paid by the violator for both parties.

- If the violation occurred on the internet, all domain or ISP services to the violator can be terminated or resumption prohibited. Domain or ISP servers can be named as liable in the case and the violator can then be counter-sued by them for damages and attorney or court fees. ISP's usually have policies encouraging users to report any suspected cases of copyright infringement, because they DO NOT want to be involved!

The above are legal ramifications and do not even begin to name the peer, social and business implications of being discovered for intentionally copyright or trademark infringing.

As a community, I encourage anyone who has witnessed copyright/trademark infringement to take the time to alert the parties involved, and make computer or printed copies of what you have observed, PRIOR to alerting both parties. Let them know anonymously if you prefer! Copies of infringement serve as the best evidence. Often an infringer will quickly take down their website evidence to feign innocence, but later resume infringing, even under a new domain name or url. If you have dated copies of what was infringed, it helps the victim's case and serves as proof if the case goes to court.

Looking out for one another was how I was alerted to all the incidences that I experienced and I am grateful to those who cared enough to let me know!!! And if nothing else, in a non-deliberate case of infringing, it provides an opportunity for the issue to be resolved equitably out of court by the infringer simply ceasing their violation, making apologies, and life goes on...if indeed it was an honest error. However, being a conscientious voice in this cause sends the message to our peers that we will not tolerate copyright or trademark infringement and this helps uphold high standards among our professional community!

"Registered" Copyright

The law says, that as soon as you put pen to paper, or design to material, what you've created is yours, and is automatically copyrighted. This only seems to stretch just so far, however. All legal counsel that I have inquired with said "get your work copyright 'registered.' " (See the US Copyright Office link below) This costs $20 per work copyrighted. So, what does someone who modifies their website almost daily do who wants it copyright registered? The response I received was that if you don't make "major" changes in your site, the copy you send in for registering will indicate the overall basic lay-out, design, and intellectual concept and this will likely hold-up well in court. However if you make major changes, re-register!

A Need For Education.....

It is distressing, infuriating, & frustrating enough to experience copyright infringement, however I found through my experiences and those of others, that a great many in our craft community have expressed ignorance about what exactly copyright infringement is or why it is so offensive. I've heard some within the soapmaking community respond to me saying "Why should this bother you? You're successful, how's it hurting you?" or "You should be flattered that anyone would want to emulate you!" I assure anyone who shares these views...regardless of one's level of success, it is NOT flattering; but rather it feels the same way it does when you've been stolen from, because you HAVE been stolen from. Hopefully through education, ignorance on this topic can be remedied.

"I'm offended t hat you think or insinuate that fellow soapmakers would actually steal..."

Obviously not all copyright or trademark infringement is deliberate. For those offended by the suggestion that others within our professional community DO willfully commit copyright or trademark infringement.....the reality IS, it happens. I wish I had a dollar for every small time soapmaker who has said to me, "I'm just a small soapmaker and don't even live in your city, how can my using your same name hurt you?" Believe me, it can hurt A LOT!

I weighed the sense of offense some indignant soapmakers may be feeling at the suggestion that they willfully infringe, against the sense of offense that an infringed-upon person feels, and the latter weighed-in far heavier in my decision to create this website. Regardless, copyright and trademark law does not care whether you're offended or not; the law is the law! The need for a site such as this was glaringly apparent. I encourage anyone deluded by complacency or a sense that copyright/trademark infringement is "OK" to spend time at each and every link provided below. This site is FOR YOU!!!

A case example that immediately come to mind to share that happened to me personally is the following: A very small-time soapmaker across the country from me who sold soap through a church group only occasionally. She sold it one day to a lady who developed a burn on her eyelid after using the "oozy soap". There was no contact info on the label the soapmaker used, only the name "Simply Soap". The injured lady looked up "Simply Soap" on the internet, found me, called me, and proceeded to scream at me over the phone her plans to sue me for her injury over the bad product I'd supplied to the lady she bought from. After much hashing out of details and non-matching of product, the injured lady finally realized that the product she bought and used was not made OR SUPPLIED by me and I was not the target of her justifiable injury complaint. She later found this soapmaker, as did I. You can see how illegal use of another's name can cause a lot of unmerited problems for them, as well as tarnish their reputation!

The Evidence: (examples)

All occurances that I experienced were deliberate and done knowingly by others within the professional handcrafted soapmakers community. It was no "accidental duplication" or "great minds think alike" type scenario. The three incidences included:

1) Complete brochure duplication with only business name and contact information altered. My brochure was simply photocopied; graphics, words and all..... with my business name & contact. info. whited-out and new contact info. cut-and-pasted in, then new copies made.

2) I had my complete website design lay-out, and product concept/descriptions duplicated to the degree that others who saw it recognized it immediately as "my" work and alerted me to the site. It was this almost indistinguishable "sameness" that is the classic hallmark of blatant "copyright infringement,".....or "you know it when you see it" type copying, enough to cause customers and peers to comment on it's obviousness sameness, and even ask "Who's site came first?" This is enormously insulting when you know it was YOU who did all the work to create that site.

3) I also had my website product photograph "right-click" stolen off my website (even though the products had my own label and logo on them!) and applied alongside word-for-word website verbage of mine into a brochure/flyer by a soapmaker, in which her company name and contact info. were substituted in for mine.

Non-isolated cases

Three times may sound unusual for any one person to experience copyright infringement as described above, but I am far from alone. I have been witness to other soapmakers who have had their custom-designed & paid-for website logos stolen, as well as product photos/word-for-word website & brochure verbage, and often it is the same businesses being infringed upon, over and over again.

These cases of theft are NOT accidental. No one accidentally happens to have YOUR product photo, YOUR custom-designed logo, or YOUR word-for-word work. They are stolen, and stealing is illegal! You must learn to think of someone's intellectual property as an actual physical piece of property.....would you steal someone's property?

"It was an honest accident!"

Honest error in duplication of another's work will invariably occur, but usually occurs in a smaller, more innocent manner....i.e. duplication of a soap name, or similar lines of descriptive text, or marketing verbage. What is the best course to take? If you discover you've done this, or another has done this to you......be up front about it! Assess the duplicated material and ask yourself (if it was YOU who was infringed upon) is it really an offensive duplication to you? Contact the other party (if you have discovered that you infringed upon another) and assess whether they are offended by what you have done! In many instances, a mere duplicate soap name (if it is a fairly common name) will not cause a problem. However if the original author of the soap name went to great lengths to be highly creative, he/she MAY be offended and you should not assume how the other party feels, but determine who began using the name first and come to an agreement, if possible, between the two of you. Ask yourself too, is it worth alienating another in the soapmaking community to not resolve the issue fairly and equitably. Also, copyright issues have a way of becoming "known" in the soapmaking community; do you want this to be a an issue you are known for not resolving? HOW you handle a case of infringement perhaps speaks louder about you than the actual infringement itself...in an "honest" error.

"FREE" Graphics

Use of free web graphics can be a "gray area" in designing your website. Personally, I obtained all of my website graphics from website design sites that advertised the graphics as free. When I chose to use them, I "thought" I was doing something perfectly legal and non-infringing. I later had two graphic artists e-mail me to ask why I did not have a link to their site for using "their" graphics. When I explained how I obtained the pics, the artist was as surprised as I to find that these copyrighted graphics had been stolen and then made available for public use by a "free graphics" site. I offered to remove the graphics or add a link to my site, back to the original artist. Both were happy to have a link added. In cases such as this, obviously I did not set-out to steal these graphics. But it was the correct thing to do to resolve this with the originator of the work. In anticipation of such an occurance, it is a good idea to keep record of where you obtain all of your "free" graphics, so if follow-up is necessary, you'll remember where they came from.

What's in a name? A LOT!

In the soapmaking community, often times we start out as hobbyists with no plans to go professional.....initially. A name is chosen just to have something cute or catchy to put on a label and no thought is seriously given to long-range infringement implications because you're just marketing to friends and relatives, or at local craft shows or retail establishments. Usually, it's not until you take your business onto the internet and your business is now global, that you suddenly realize that there are five other people with YOUR company name! Or a name that you copyrighted in your own city is not the same thing as a company name that is registered trademarked nationwide.

A good idea is to trademark search a name nationwide before ever choosing it as your own (Main libraries have the computer data bases that provide the opportunity for you to do this self-search for free, or you can hire a trademark attorney to do so. The US Patent and Trademark Office is constantly upgrading their online service to do this also. See link below.) whether you choose to TM it yourself or not, or whether you choose to expand your business presence or not. Chances are, someone else with that same name, who established their business before you, is NOT going to appreciate you having that name also, even if you are a "small potatoes" business. Confusion results among customers or there can be potential lost income due to this confusion when search engines pull up both your names at once, among other problems. The costs of having to change your name and all marketing materials after you've established yourself in business is also not worth it.

Recipes

Recipes are a tricky issue. You may "think" you were the originator of a specific soap or toiletry recipe, but how can you prove it? Many, many others may have dreamed up the same idea but never claimed ownership, or could be using the same ingredients, same proportions and do you think that because you attempt to copyright a recipe that anyone will stop using that same recipe just because you copyrighted it? As you can see, it would be a very difficult to copyright or trademark, or try to enforce recipe ownership. Others could be making the same basic recipe but be just a few ounces off from your (hypothetically) copyrighted recipe, but how could you prove it, and even if you could, how could you catch everyone who did? It would be like saying you own a copyright on a "palm kernel, coconut and olive oil soap recipe"......impossible!

I've witnessed a published author accuse another published author of copyright infringement on a soap recipe previously published.....only to find later that there was yet another soapmaker altogether who was using the recipe long before either of them. So who actually "owns" the idea? Confusing, indeed!

Written or designed intellectual property is obviously much easier to discern.

But how do we NOT "cross the line?"

While all of us creating our business websites, brochures, soap labels, and all manner of marketing materials, may invariably duplicate what another has done in some similar way (i.e How many ways can one describe a bar of soap without inadvertently over-lapping with what another soapmaker has said about the same type of soap?), or we find ourselves at a loss to creatively come up with a "new" name for a type of soap that we all typically manufacture (i.e. peppermint, lavender, etc.) there are lines that obviously should not be crossed in our being influenced by others as we design our own image and intellectual materials. Exact wording and descriptions are obviously a violation. But so too, is altering words just slightly so as not to be "exact," yet continuing this theme throughout your lay-out and design if you obviously are only slightly altering another soapmaker's work. For those unsure of what "crossing the line" is...below are several links to help educate you. Focus on the "Fair Use" articles..... If you really are in doubt about it, contact an experienced copyright attorney. And for those who rely on hoping that your copyright infringement will not be discovered....this is highly unlikely; especially with as tight-knit a community that the soapmaking world is, brought even closer together by the internet.

"But it costs so much to 'get legal!'"---Alternatives and ammunition....

In my copyright infringement episodes, I was deterred somewhat by my perceived expectation that enormous amounts of money and time would have to be spent by me to settle the cases and obtain justice. I have since learned that there are many ways to deal with this crime with a very equitable result, including implementing copyright infringement abatement insurance beforehand (<--usually quoted to you for your personal needs) so someone else does a share of the legal footwork for you! But note, you cannot obtain copyright infringement abatement insurance on a case that you are already involved in; it must be in-place beforehand. I encourage any of you interested, to check into this! Often times, sending a letter of acknowledgement to the offending party on attorney letterhead is enough to alert that party that you they are discovered and need to cease and desist or face legal proceedings. Many seem to think they go un-noticed and are quite surprised to find out that you've found THEM out!

What can happen to me if I infringe?

If you are an infringer and are discovered, you can consider yourself fortunate if the copyright or trademark owner is congenial enough to call, e-mail, write or fax you and ask you to refrain from your violation ,and you are intelligent enough to do so. It will save you a lot in time and expense, among other headaches. If there is a discrepancy regarding who was using the material in question first, hopefully you'll have dated copies of your use, registered copyrighted/trademark or some other proof.

If a court finds that copyright or trademark infringement has occurred, it can award the copyright or trademark owner money damages for any loss suffered because of the violation, or the amount of receipts made by the violator that the copyright owner could potentially have had or, in the alternative, statutory damages assessed by the court on the basis of how intentional the violation was.

The court can also:

- Order the violator to cease it's violation.

- Impose TRIPLE the amount of actual damages on repeat offenders, including damages to the copyright or trademark holder's reputation.

- Order the violator imprisoned for up to 10 years if the violation was for personal or financial gain.

- Order that all attorney and court fees be paid by the violator for both parties.

The above are legal ramifications and do not even begin to name the peer and social implications of being discovered for intentionally copyright or trademark infringing within your community.

When in doubt about something you plan to use or claim as your own property, err on the side of safety or over-cautiousness if you are unsure. The consequences can obviously be quite harsh! And "Gee, I didn't know what I was doing was copyright/trademark infringement"......is an extremely weak defense.

Be part of the solution.....

As a community, I encourage anyone who has witnessed copyright/trademark infringement to take the time to alert the parties involved, and make computer or printed copies of what you have observed, PRIOR to alerting both parties. Let them know anonymously if you prefer! Copies of infringement serve as the best evidence. Often an infringer will quickly take down their website or cyber evidence to feign innocence, but later resume infringing, even under a new domain name or url. If you have dated copies of what was infringed, it helps the victim's case and serves as proof if the case goes to court.

But above all, please do not stand idly by and watch infringement go unacknowledged if you have witnessed it! If someone else is doing it, even talking about and promoting themselves on soap listserves and forums, seize the opportunity to let them know that you know a name they are using is someone else's. Or if a design they are using is clearly copied, tell the original owner and let them deal with it. Ignoring the problem only sends a message of quiet consent.

"Registered" Copyright

"Poor Man's Copyright/Trademark"

If registered copyright costs are prohibitive but you want protection that has been known to stand up in court (not guaranteed!), keep recent physical copies of your (preferably dated) work and send it to yourself via CERTIFIED MAIL--which furthers establishes dates, but do not open this mail. Keep it on-file in the event of infringement to prove your date of useage of original material..

Another soapmaker made a good suggestion: Make a video-tape of your website loading, and tape each webpage as you click on it. Send this to yourself, again, Certified Mail, and leave unopened.

Learning links!

Below are several hand-picked links to information sites. We're always looking for more, so let us know!

(Click and go!)

US Copyright Office

US Patent and Trademark Office

US Trademark Database (online search for TM's)

Intellectual Property Insurance Services Corporation

What Is Copyright Protection?

Stop Internet Plagiarism

Copyrights In Cyberspace

Creativity and Copyright

Copyright Law

Trademarks, Copyrights and Internet Business

The Copyright Website

Copyrights: Obtaining and Observing

Growing.....

We are also gathering links to reputable webpage designers as well as sources for designing your own! With the abundance of free resources available on the web alone, there's no reason we can't each demonstrate your own unique originality without duplicating what others have done. If you have tips on this you'd like posted...let us know and we'll review it!

Also...below is javascript that you can copy, cut, and paste into the HEAD of your own html code on each website page to help discourage right-click lifting of material from your site pages. It is not totally fool-proof, but can deter some.

-----------------------------------------------------------------------------

<script language="JavaScript">

<!--

// No rightclick script.

// Find more great scripts and applets at the JavaFile!

// http://www.javafile.com

// Do not delete this header!

var message="Sorry, we don't allow that on this site!."; // Put your message for the alert box between the quotes.

// Don't edit below!

function click(e) {

if (document.all) {

if (event.button == 2) {

alert(message);

return false;

}

if (document.layers) {

if (e.which == 3) {

alert(message);

return false;

}

if (document.layers) {

document.captureEvents(Event.MOUSEDOWN);

}

document.onmousedown=click;

// -->

</script>

______________________________________________________

PLEDGE OF HONORABLE PRACTICE

Only by upholding quality standards ourselves can we improve the internet community as an advantageous and reliable business environment, as well as within our professional group, in our professionality toward each other. Good practices should go without saying....however.....as a show of good faith within the soapmaking and internet communites, I would like to take the initiative in pledging my commitment to upholding respectful copyright/trademark practices in hopes that others follow suit until we've successfully spread-the-word, in a spirit of enlightening our peers, in eliminating copyright/trademark infringement.

Any others who wish to make their commitment known to this cause, let me know and I will be happy to post your name below. Specify that you want your pledge posted. (Please e-mail your full name and company name -- thanks!)!

Suggestions welcome! This site created 7/29/99.

Carol Ochs - SimplySoap@aol.com

www.simplysoap.com

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Carol Ochs, Simply Soap ~ A California Handcrafted Soap Co. ~ ® - 7/29/99

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Lori Kimble, Irish Hearth Soaps - 7/29/99

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Diana Lange, Cloud Nine Soaps - 7/29/99

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Rosie Englebert-Elmore and Cissie Englebert-Buckert - Sister Soaps & Sundries -7/30/99

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Lynette Vail - Soaps & Scents - 7/30/99

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Kate Krival - Kate's Soap Co. - 7/30/99

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Karen White, Natural Impulse - 7/30/99

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Jillyn B. Jones - Earth Mother's Creations - 7/30/99

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Stephanie Cregan, Garden Spirits - 7/30/99

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Becky Peterman, Soaps~n~Such - 7/30/99

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Kelly Caul, Two Leaf Handcrafted Soap Co. - 7/30/99

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Laurie Macy, River City Soap Co. - 7/31/99

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Lori Schenkelberg (aka "The Pigment Lady"), - 7/31/99

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Marie Chandler Gale, Chandler's Soap - 8/1/99

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Misty Fields, Masterpiece Bath & Candle - 8/1/99

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Patricia Fountain, Heart's Delight SoapWorks - 8/1/99

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Scott Viertel, Primal Benedictions - 8/6/99

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Sue Newhouse, Moonlit Naturals - 8/14/99

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Christine Reeves, The Princess' Privvy - 8/18/99

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Crystal Thomas, Sunflower Soap & Herb Co. - 8/18/99

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Lynne Olson, Cotton Blossom Crafts - 8/18/99

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Glenda Bolton, The Dragon's Rose - 8/19/99

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Renee Thompson, Country Scentuals - 8/21/99

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Shannon Carbone, Herbal Scents - 8/21/99

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Lydia Russo, Earth Song Natural Soaps aka ESN Soaps - 9/21/99

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Lissa Napora, Fantasia's Garden Botanicals - 10/8/99

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Cherie Lucas, Lucas Luxurious Lathers 2/3/00

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Valerie Prich - Angel's Bath Cavern 2/16/00

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Dennise Ziaja - Two Sisters Herbal Products 3/3/00

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Libby Claridge - Earth Dance 3/16/00

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Eva Chancellor - Soapy Hills Farm 6/14/00

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Kathie Kazlauskas - Karmic Kreations 2/4/01

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Beth Costa - Invigorations! 2/5/01

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Julia Peterson - Emporium Naturals 2/5/01

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Gina Shelnut - Bauxite Soap Co. 2/5/01

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Miriam Kresh - Hills of Galilee Soaps 3/13/01

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This website, ALL of it's written contents/descriptions, cummulative concept, and lay-out design, is the intellectual property of Simply Soap and is protected by all copyright laws. Unauthorized duplication, adaptation, distribution, or display, is strictly prohibited.

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CHAT TRANSCRIPT:

Below is a transcript copy of the legal chat held August 17th, '99 with copyright attorney Todd Epp, Esquire. {screen name - tdepp}

The chat room we used had some technical problems that seemed to keep bouncing participants off, so I've edited-out most (I think) of all the entrance and exit announcements, or casual conversation. The person copying the transcript was bounced a few times, so if conversation seems slightly dis-jointed in places, that's why....(as indicated by some bar lines)

I was the chat moderator. Questions were submitted with a "?" and I would then call on each "?" submitter by name to maintain orderly question-asking, then wait for Todd to answer.

--------------------------------------

[40151] Carol, are you able to do a log of this chat in case we get cut off?

[CarolOchs] There aren't logging capabilities. I thought I could then cut & paste text...but it won't let me do that either!

>> tdepp has joined channel #XC.1804861

[jukebox5] That's a shame! I guess we will just have to take notes

[CarolOchs] Todd...you're back! Shall we start?

[tdepp] Sure. I got bounced.

[tdepp] Everyone still there?

[tdepp] well, I am a trademark, copyright, computer, internet, and business

- litigation attorney in Sioux Falls, SD.

[tdepp] I'm licensed in KS, SD, the W. Dist. of Mo. fed. ct. and the 8th and

- 10th Fed. Cir. ct.s of app.

[tdepp] I'm a Washburn U of

[tdepp] Topeka grad, B.A., JD, and LLM in intellectual prop. law from the U.

- of Houston.

[tdepp] So, what does everyone want to know?

[40151] Should we wait until Carol gets back on?

[tdepp] Nah, let's start. I'll try to moderate and pontificate until she

- gets back.

[jukebox5] ?

[tdepp] Carol tells me that there seems to be

[tdepp] oops. Juke go ahead

[Kindemere] Most of us would like to know how to protect our product name,

- design etc.

[jukebox5] I have questions on copyrights

[soapster] ?

[jukebox5] What I would like to know is what you can copyright? I do soap

- dishes

>> CarolOchs has joined channel #XC.1804861

[tdepp] There are various forms of IP (intellectual property) that you are

- all dealing with. Trademarks go to symbolic speech. Copyrights go to

- expressive speech. Patents go to technological speech.

[tdepp] What you call your product is your trademark. I.e., irish heather

- brand soap. Trademarks show the source of goods.

[allcraftsoz] so are you saying that the soapdish must be patented?

[tdepp] Your photos of your goods and the descriptions of them are copyright

- protected, as long as it has a modicum of creativity.

[tdepp] Patents would go to a process of making the soap or a composition of

- soap. Patents are hard to get and give the strongest protections.

[tdepp] So, there are different things that have different legal protections.

[CarolOchs] Excuse me, I got knocked off...sorry. Did you want us to just

- start asking questions, Todd?

[tdepp] Yeah, if you can kind of be my traffic cop. I'll indicate when I

- think I've answered a question with a *

[CarolOchs] Did you have opening comments you wanted to start off with...

[tdepp] I just kind of did, with an over view of the major forms of IP.

- Perhaps one more example.

[tdepp] IP is rather intangible, but it is property. The problem comes with

- the concept of "what is theft."

[CarolOchs] Is there a "pat" definition?

**********

[CarolOchs] Something definitive--that makes it inarguably "theft."

[jukebox5] What if someone steals your design?

[allcraftsoz] ?

[tdepp] Well, there's Justice Stewart's analogy with pornography. you know

- it when you see it. Seriously, there are multi factor tests for copyright,

- trademark, and patent infringe that various by the circuits.

[CarolOchs] But what if your infringer fails to recognize or acknowledge

- their infringing?

[tdepp] Trademark is probably the easiest--does the infringing mark look,

- sound, and mean the same as the senior mark? Is there a likelihood of

- consumer confusion?

*******************

[tdepp] Then you have to weigh the costs of a lawsuit and whether you can

- get personal jurisdiction of the party in your backyard. Also, as to

- copyright, you have to have the works registered before going to federal

- court. You don't need a registration if it is a trademark infringement

- case.*

[allcraftsoz] thanks for that!

[soapster] Todd, was that for me?

[CarolOchs] Todd...registration....is this "of the essence" in these cases?

[tdepp] I should add that litigation is expensive. In SD, we figure 15K to

- $25K to try a case in fed. ct. It can be higher elsewhere.

[CarolOchs] Soapster? Your question?

[tdepp] Yes, registration is important. You have copyright rights as soon as

- you put the work to a tangible medium--paper, rock, floppy disk.

- registration give you the right to wait in line at fed. ct.

[soapster] I have a problem with someone using my business name in another

- county here in Michigan and it is confusing my customers and suppliers. What

- recourse do I have?

[tdepp] You can't sue in fed. ct. without a registration.

[soapster] Can you give me some information on what it costs to obtain a

- registration?

[tdepp] soapster. Mich, like most states, probably has tradename and

- trademark infringement laws. you have common law rights. Senior users have

- rights over junior users.

[tdepp] am I still one?

[tdepp] on?

[tdepp] I thought I left.

[soapster] So do I have to contact a copyright attorney to pursue this?

[CarolOchs] Soapster: Was your question answered?

[soapster] Sort of. I was still wondering how much it usually costs to get a

- registration

[tdepp] Soapster: Not necessarily a copyright lawyer but a lawyer who at

- least understands trademark law. A good litigator is important.

[CarolOchs] Isn't registration $20, per item registered, Todd?

[soapster] Do I register with the US Patent Office?

[tdepp] I think so. the copyright office has recently raised some fees. go

- to www.loc.gov then click on the USCO for the latest fees.

[CarolOchs] Those links are on my copyright infringement site,

- Soapster...I'll post later.

[soapster] Thanks for your help.

[CarolOchs] Janbhe48..you had a question?

[Kindemere] What is the difference between a trademark and copyright? What

- about logos? Will registering them help? I have two that were made just for

- me. I don't have a web site yet but want to protect them when I do. Of

- course there are other mediums I use them on like soap labels, brochures etc.

[Jambhc48] How do you register your name?

[tdepp] The USCO and the USPTO are different offices. the USCO is part of

- the lib. of congress and handles copyrights. the uspto is part of the dept.

- of comm. and handles tms and patents. most states also register tms (which

- only gives notice and rights in the state) through the Sec. of State's office

- or Dept. of Comm.

[tdepp] Jam--if it is a corporation, typically with our state SOS or dept. of

- comm. a business name is not necessarily the same as a trade or business

- mark. remember, trademarks are an indication of source and are attached to

- goods or services in use in commerce.

[tdepp] I meant service mark, not business mark.

**********************************

[ffreida] ?Type HERE

[tdepp] Sometimes the court will award attorneys fees to the prevailing

- party. but it is not a lock.*

[CarolOchs] Are cease and desist orders usually successful?

[tdepp] Carol--they can be. they also show that you enforce your trademarks

- and copyrights and prevent someone from claiming that you haven't policed

- them.

[CarolOchs] I'm gathering that actual "copies" of the copyright infringed

- material is your most valuable evidence...true?

[tdepp] Sometimes the nastygram from the lawyer is enough. Sometimes you

- have to file to get their attention. Most lawsuits get settled.

[tdepp] carol--yes, that's good, particularly for the cease and desist. If a

- suit is filed, you can also obtain copies of materials in discovery.

[CarolOchs] IF it goes as far as a suit....what are chances of recovering an

- award or judgement?

[Jambhc48] What if someone is using your business name?

[tdepp] That's like asking how high is up! When the trial goes to the trier

- of fact, it is out of your hands. It is a crapshoot.

[CarolOchs] Jambhc48's question?

[tdepp] Jam--are they using the business name in your state and in the same

- type of goods?

[Jambhc48] What can you do to protect this name you have built up?

[Jambhc48] It's hypothetical?

[tdepp] jam That's kind of a general question. You can put the "tm" mark

- after the words you believe are your trademarks. You can send the cease and

- desist notices. yes, it's a big pain.

[CarolOchs] What is the court's attitude, generally speaking, toward

- infringer's who plead "I didn't realize I was infringing?" (even after you've

- POINTED it out to them...<g>)

[40151] ?

[tdepp] Jam--you can also obtain state and/or federal trademark registrations

- of your marks. That puts potential users on constructive notice. (State

- registration only gives notice in the state, fed. reg. gives notice in US.)

[Jambhc48] I mean , just filing for a tax license with my name on it doesn't

- protect me?

[tdepp] Carol--Innocent infringement typically goes to damages.

[tdepp] Jam--not really. the business name gnomes and the trademark gnomes

- live in different caves at the statehouse.

[CarolOchs] 40151? Question?

[tdepp] Carol--innocent infringement doesn't mean the infringer gets a free

- pass.*

[ffreida] ?

[CarolOchs] Thanks for that answer, Todd...

[CarolOchs] 40151?

******************************

[tdepp] my contact info while we are waiting. 800-289-5999.

- tepp@lynnjackson.com . www.lynnjackson.com

[CarolOchs] ffreida?

>[ffreida] from everything I've heard and read, I'm seriously considering

- using my signature as part of any soap name or label design...is this wise

- and would it help to protect me from infringement?

[tdepp] 401--You have probably developed common law rights in your name

- without registration. registration is like a car title. it helps give some

- proof as to date of first ownership. most states recognize common law rights

- as a basis for a tm infringement suit. typically, it's nice to have the

- registrations since they give you additional counts in a complaint.*

[40151] Thanks, I get it now!

[tdepp] people's names are typically "weak" marks. They are descriptive.

- they first must acquire secondary meaning. you might be able to protect the

- design only at first.

[Jambhc48] I can see that this is complicated and probably best left to a

- lawyer or can you register your name yourself?

[CarolOchs] frieida is next, Todd..she already posted a ?

[ffreida] would this also apply to my artwork? even if I display it on my

- website?

[saponifier] ?

[tdepp] jam--I tell my clients they can probably do a SD application

- themself. they are paying me for convenience. a USPTO application is more

- complicated, particularly if the examiner has objections.

[tdepp] freida--artwork might fall into copyright or trademark, depending on

- the use. If it the background, that is more likely copyright. It if the

- symbol by which the product is known, like the McDonalds arches or the Nike

- swoosh, then it is probably a trademark.*

[Jambhc48] Is a search necessary to find out if someone else has that name?

[CarolOchs] Saponifier?

[ffreida] I'm a painter and designer as well as a soapmaker...so the artwork

- is real artwork done in various mediums...

[saponifier] Once a person pays a lawyer to draw up a legal contract, does

- that contract then become theirs to do with what they want? Would they have

- the rights to publish it in a book? As in putting together a book of

- contracts for the trade?

[tdepp] Jam--I think searches are critical. Before you go putting a lot of

- time, money, and goodwill into a mark, it's nice to know that you aren't an

- infringer.

[ffreida] would I need to get each piece I do trademarked or protected

- somehow?

[soapster] ?so if I have a unique logo for my business name I should register

- it as a trademark rather than have it copyrighted?

[tdepp] soap: you can probably do both re cr and tm registrations.

[tdepp] ffrieda--each piece? You would register each mark in each

- classification of use for tm.

[ffreida] many times, I've used pics of my paintings as labels...how can I

- protect these?

[soapster] Can other businesses (ie: paint company) use the same name as I do

- for a product and not have a copyright infringement?

[tdepp] The contract question: Yes, I would get a license from the attorney

- to be safe. It is a form of expression. However, they may be some clauses

- that can only be said in one or a limited number of ways and they would not

- be protected by cr.

[saponifier] Thank you

[CarolOchs] Any more questions?

[ffreida] and would my signature on these labels or paintings not protect

- them?

[tdepp] Yes, similar trademarks can exist in different areas of commerce.

- You can have acme brand anvils and acme brand grapes. However, the federal

- and state anti-dilution statutes are starting to change that bit for famous

- marks.

[soapster] ?

[CarolOchs] Soaptster?

[tdepp] Carol, I'll go to 9:30 p.m. CDT since we got a late start.

[tdepp] Carol, I'll got to 9:30 p.m. CDT since we got a late start.

[CarolOchs] OK, Todd...just say the word...

********************************

[tdepp] freda--signatures protect? I suppose. I think artists can just put

- a (c) in a circle and their name and don't have to have the date. Then send

- it off for cr registration. You can put the date on. Typically, a cr notice

[CarolOchs] Whooops! Lost our speaker! <g>

[CarolOchs] Are you guys learning anything?

[soapster] It's been helpful. Thanks

[saponifier] once we can go back and hash it out!

[ffreida] so would this also work on my soap labels? and thanks!

[Reneerenee] yes, thank you

[Jambhc48] Yes, ignorance can cost you

[CarolOchs] There are a lot of useful links to the Copyright And Trademark

- offices on my copyright site...

>> tdepp has joined channel #XC.1804861

[40151] I just never assumed that since someone was using my business 'name'

- that it was trademark.

[CarolOchs] You're back!

[emcsoap] Carol, It keeps knockin' us offline(I bet Todd will be back!)

[tdepp] Type HERE Sorry, my browser crashed. *&()# aol!

[CarolOchs] these chat rooms leave much to be desired!

[ffreida] so, if I use my sig on my soap labels, would that help with

- infringement?

[tdepp] freida--I guess I'm missing something here. Yes, the signature could

- be a trademark. It would be an indicia of source.

[ffreida] well my original question had to do with using a signature to help

- protect my label designs and artwork...

[CarolOchs] But the sig itself guarantees no protection, does it?

[tdepp] freida--the signature would not be a magic bullet.

[emcsoap] ?

[CarolOchs] emcsoap? Question?

[Reneerenee] ?

[emcsoap] Is there somewhere that we could find out *when* a company

- registered it's name? A free database somewhere?

[tdepp] well, it could be a trademark. it will take at least five years for

- it to be considered distinctive by the uspto. you might have better luck

- with state registration, those some states bar personal names from

- registration.

[tdepp] emc--I'm not aware of one. some states have their business filings

- on line. I think Delaware does. otherwise, call your SOS or Dept. of Comm.

- that registers businesses. Also many counties required local registration.

[emcsoap] Thank you

[tdepp] ffrieda--it will probably take five years for it to be distinctive.

- no absolutes in my biz!

[CarolOchs] There is a database...I'm currently going through this with my

- name...I'll get the url...

[Kindemere] If you register in one county but do business in neighboring

- counties should you register there too?

*****************************************

[emcsoap] oops, didn't mean to shout

[CarolOchs] Questions?

[Reneerenee] In the case of web pages where there are changes on going how

- are those protected. It seems they are easily stolen

[CarolOchs] Todd: What is your opinion of infringement abatement insurance?

[CarolOchs] Lost him again...:::sigh::: cyberspace!

[CarolOchs] Renee: I was told that anytime you make major changes in your

- site, re-register it...

[CarolOchs] But an initial "lay-out and design" is pretty obvious if

- infringed upon...

[Reneerenee] Are scent changes or adding a new product considered a major

- change?

[emcsoap] Carol, register with who?

[CarolOchs] Off the top of my non-legal head...I'd say "no"...it's the major

- design changes in your site that are a concern...if you go from a seashell

- motif to cowboys and Indians type thing...

[Reneerenee] Carol didn't you say you have had your web page pictures stolen?

- What can you do to protect them?

[Kindemere] Seems to me you should document any changes including date, what

- you change. Some one suggested taking pictures of you web site to keep

- records of it.

[CarolOchs] Register with the US Copyright Office ---check out the link on

- this site...

[CarolOchs] http://members.aol.com/simplysoap/index.htm

[prairieland] Carol, will there be a viewable log for us late joiners?

[CarolOchs] DATE is imperative...

[CarolOchs] Anything you can do to prove the date of first use is to your

- benefit...

[CarolOchs] Prairie...there are no logging capabilities here...but Kindemener

- has cut & pasted most of it...

[CarolOchs] Well, I don't know about you all....but I think copyright

- infringement is something we're going to see a LOT more of

[CarolOchs] Hi Patty...

MrsGryphon> Same here.

[randi815] Carol, thanks for putting this together

>> tdepp has joined channel #XC.1804861

[CarolOchs] Thank you all for coming....sorry for all the "technical"

- difficulties...

[saponifier] ah ha, our leader is back

[prairieland] I know that I sell a line of glycerin soaps as well and am

- afraid to post pics due to fear of being copied.

[Reneerenee] Carol this information is so important for all of us to be aware

- of, I thank you for bringing it to our attention

[CarolOchs] welcome back Todd...I know you're running close on time

- anyway....

[Kindemere] Todd is there anything we did not touch on that you think we

- should know?

[ffreida] yes, I was worried about folks stealing my photos of my paintings

- from my website...

[tdepp] prairie--I can appreciate the fear of theft. however, you also have

- to advertise. digitization makes theft easy.

[tdepp] I think policing your IP is important. Letting infringers know

- they've been caught helps. Sometimes you can write the letters. I think it

- is better and stronger to have an attorney do it.

[CarolOchs] Is it just me, or is it common for a "caught" infringer to act

- like YOU have the problem?

[tdepp] I also believe in trademark registration. Think long term. Your

- trademark may become your most important asset in a sale. or you may want to

- license the mark to others.

[tdepp] carol--sure, some thieves are stupid, some are evil. my daughter is

- the same way when I tell her she's been doing something wrong? <g>

[CarolOchs] I think this is part of the issue with soapers...many start out

- "small," not really expecting to get as big as they do, and then a "name" or

- design becomes bigger than life "later"...

[tdepp] Copyright infringement is kind of like stealing grapes at the grocery

- store. It may be a fair use for me to try one grape from the bunch. but I

- can't walk out the store with the whole bunch and not pay.

[CarolOchs] I checked the TM databases at my main library before even choosing

- my co. name....but many don't go to that trouble...

[CarolOchs] After what I'm going through now reg. TMing the name...I wished

- I'd done it the day I opened shop!

[tdepp] carol--as to state tms, I call the SOS and ask it if is available too.

- It's not 100% but it saves sending in an application that gets rejected. I

- firmly believe in the full tm search as a way to know what is out there.

[tdepp] The best time to plant a tree was 20 years ago. the next best time

- is now.

[CarolOchs] Any last questions, gals? I'm sure Todd needs to wrap this up...

[tdepp] No guy soapers?

[CarolOchs] Well, Todd? Wanna learn to make soap? <g>

[ffreida] want to try your hand? very relaxing!

[saponifier] Todd how can you be contacted if one wishes your services?

[tdepp] My wife is just happy that I use soap!

[Kindemere] Todd is there anything else we should know on these subjects

[CarolOchs] The box is on it's way, Todd...you should be set for awhile...<g>

[tdepp] sure, the ad first. Lynn, jackson, shultz & lebrun, p.c., po box

- 1920, sioux falls, sd 57101-3020, 800-289-5999. tepp@lynnjackson.com

[CarolOchs] What is your opinion on copyright infringement abatement

- insurance????

[tdepp] that's Shultz, not Shulz. The old guy would kill me!

******************************

[CarolOchs] I have your info. also posted on the COPYRIGHT SITE -

- http://members.aol.com/simplysoap/index.htm

[tdepp] I have seen it save my clients thousands of dollars.

[CarolOchs] With what it COULD potential cost to go after an infringer, it

- seems the C.I insurance is a deal!

[tdepp] looks like it's just the hardcores who are left. anything else?

[tdepp] as to the insurance, its nice to have the ins. co. paying for most or

- all of your attorney!

[CarolOchs] Well...thank you very much , Todd, for your time and insight. We

- all appreciate you coming and sharing with us! Perhaps any other questions

- could go to your office if they come up!

[tdepp] I'm in tomorrow. I'd prefer email. tepp@lynnjackson.com It's been

- fun!

[allcraftsoz] yep, Thanks Todd!!

MrsGryphon> Thanks Todd.

[Reneerenee] Thank you very much for your time.

[CarolOchs] :::applause::::

[Kindemere] Thanks

[saponifier] thanks s much for taking the time out to do this Todd!

[emcsoap] thank you

[CarolOchs] Did any of you want to continue chat informally...?

[tdepp] I hope I've enlightened and not just confused. these are tough

- issues.

[CarolOchs] Todd...I think when a CI case comes up...

[CarolOchs] it seems like you're the only one in the world experiencing it...

[tdepp] Jurisdiction can be a big bugaboo. particularly with online

- infringement.

[saponifier] Confused? sorta, but the more we hear, the more we understand!

[CarolOchs] Preparing ahead seems to be the best offense...

[tdepp] If you remember one thing, get registrations, tm and cr.

[CarolOchs] Although I always hear about how the internet is such a GRAY AREA

- re: law...do you think this continues to be the case?

[Reneerenee] What do you we register first

[saponifier] what exactly is a registration, in comparison to the actual cr?

[tdepp] carol--re internet. actually the more I practice, the more I think

- it is like the real world. CR law adopts well to it. CR law doesn't care

- what the tangible medium law. it's a little trickier for tm law.

[CarolOchs] registration OF the cr...makes it more official...

[CarolOchs] But what about boundaries for jurisdiction--going AFTER someone?

[tdepp] Registration is the ticket to federal court, statutory damages,

- attorneys fees, constructive notice, etc.

[tdepp] As to online infringement, the courts are split as to whether a mere

- website is a "push" into state and enough for personal jurisdiction.

[tdepp] In my state, I don't think it has been considered, yet.

[CarolOchs] If you settle outside of court, can you include attorney fees in

- the damages?

[tdepp] carol--it's a business deal. it's what ever you can get!

[tdepp] as an aside, I think these stupid ads on this site chew up memory and

- cause us to crash.

[tdepp] CAROL--sure, shoot.

[CarolOchs] P.S. There have been a slue of soapers who tried to get on but

- couldn't' for some reason who want the transcript......please forward

- to me when you get the chance..thanks!

>> tdepp has left channel #XC.1804861

[CarolOchs] Uuuup! There he goes again...

[ffreida] thanks carol! this was really informative...now I have to go check

- out your site and find out how to register my stuff for copyrights...and

- trademarks...

[CarolOchs] There are a LOT of GREAT links on that site...you can't HELP but

- learn everything there!

[CarolOchs] yup...I have it...thanks!

[saponifier] carol- what kind of lawyer did you say he was? A copyright

- lawyer?

[CarolOchs] His url is: http://www.lynnjackson.com/tde.htm

[CarolOchs] It's posted on the COPYRIGHT site too!

[emcsoap] Carol, what happened to the irishhearthsoaps chat location? There

- was a beautiful, big blank screen there!

MrsGryphon> One thing before I head off to bed on the east coast...

[CarolOchs] http://members.aol.com/simplysoap/index.htm

MrsGryphon> got a book in the mail yesterday "The Law (In Plain English) for

- Craftspeople"

[CarolOchs] em:...Lori's chat room wasn't loading right...so we

- ditched it for this lovely non-functioning room <g>

MrsGryphon> by Leonard D. DuBoff

MrsGryphon> Published by Interweave Press, Loveland, CO

CarolOchs] I SAW that book, Mrs....thought it looked great! You'll have to

- pass on a review!!!

>> tdepp has joined channel #XC.1804861

[CarolOchs] Todd? You still here?

[MrsGryphon] Read through it quickly & seems good - have to do a further

- reading still.

[tdepp] Type HEREarghhhhhhhhhhhhhhhhh!

[CarolOchs] Boy! You're determined, Todd, aren't you??? <g>

[MrsGryphon] It does have chapters on Trademark, Copyright, Consignment,

- Insurance, Liability.

[tdepp] some resources for you. Books. Elias, Patent, Copyright, and

- Trademark, nolo press. Lots of easy to understand definitions.

[CarolOchs] I LOVE Nolo Press books...my husband has practically the whole

- library since taking over his business...they seem very easy to understand

- in non-legalese...no offense, Todd...<g>

[tdepp] fishman, The copyright handbook, nolo press. very comprehensive.

[tdepp] how to register your own trademark, sphinx publishing.

[tdepp] Nothing replaces good legal advice, however.

[tdepp] one more. mcgrath and elias, trademark: how to name a business &

- product, nolo press

[CarolOchs] .I think many of us hope that the court of

- public opinion will be a deterrent in our peers DARING to infringe upon

- us....

[tdepp] Lawyers are like the brakes on a car. Business people are engines.

- how much brake do you want to apply?

[CarolOchs] but yeah...not saying anything may be the best defense...just do

- it legally--shows you're the real "professional"...

[tdepp] that's first amendment rights

[tdepp] carol--that's why god made lawyers!

[CarolOchs] Thanks GOD!

[CarolOchs] <g>

[Reneerenee] I believe that having your tm's and cr's is a deterrent and is

- very professional --If someone doesn't respect them then go with a lawyer.

[tdepp] I'm not god. Eric Clapton is though.

[CarolOchs] Are you seeing a lot of these type cases, Todd? Is it on the

- increase?

[CarolOchs] Internet-wise?

[Reneerenee] You know I just don't have time to go looking to see if someone

- is using my name or pictures or what ever. How do you find out someone is

- infringing on your property?

[tdepp] I see it more in trademark. cr losses can be hard to prove.

[ffreida] is this because cr is basically about ideas...?

[tdepp] ren--particularly as a tm holder, you have some obligation of

- policing your mark. you don't want to be accused of acquiescence or naked