We are the registered trademark holders
in the U.S. of the name "Simply Soap - A California
Handcrafted Soap Co.-"...and are not affiliated in
any way with any other companies illegally using the name "Simply Soap", or companies
legally using the name in other countries. We have not franchised
our soap line...the only place you can obtain Simply Soap soap products
is here through this website (www.simplysoap.com)
or through retail stores that carry our lines either under our own
Simply Soap label or under their own private label. If you are
uncertain as to whether you have the *real* (as in *us*) Simply
Soap....check the label for contact info which should list our website
on it and lead you back to us, or a retailer carrying our line(s).
You are always welcome to contact us:
simplysoap@aol.com
As an alternative to a lawsuit over use of a
domain name, trademark holders can file a complaint with an
ICANN-approved dispute resolution organization. See
http://www.icann.org/udrp/udrp-policy-24oct99.htm.
Generally, complainants must show that they have valid rights in
the mark, the domain name registrant has no rights in the mark,
and the domain was registered in bad faith. The World
Intellectual Property Organization and the National Arbitration
Forum are approved by ICANN to conduct domain name dispute
resolution. The process is similar to a lawsuit but is designed
to be speedier and less costly. Generally, no hearing is
required and the arbitrator resolves the dispute on the papers
submitted. ICANN has promulgated general rules of procedure
which are augmented by a supplemental set of rules for each
arbitration organization. See
http://www.icann.org/dndr/udrp/uniform-rules.htm
The Mere Act of Registering a Domain
Name May Infringe a Famous or Already Trademarked Mark
Jack In The Box, Inc. v.
Jackinthebox.org, 2001 U.S. Dist. LEXIS 9586 (E.D.
Va. 2001). The court held that a trademark holder is
entitled to relief under the ACPA when the act of
registering a domain name itself is found to violate
the holder’s trademark. The court held that the mere
act of registering an Internet domain name is
sufficient to invoke the protection of the in rem
provision of the ACPA.
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!!!
I put up this site at the
encouragement of several fellow soapmakers, and as a response to experiencing 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,
potentially poorly 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 "Carol's Simply Soap". The injured lady looked up
"Carol's Simply Soap" on the internet, and presumably because
my name is "Carol" and my company called "Simply Soap", 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 (and Carols), 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!"
Honesterror 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.
- 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 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.
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!
"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!
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.
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!)!
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.
--------------------------------
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?
[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
- looks like this: Copyright
1999 Todd D. Epp. All rights Reserved.
[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
[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
- licensing.
[tdepp] fred--cr is about
expression. ideas aren't protectable.
>> CarolOchs has left channel
#XC.1804861
[Reneerenee] How would one do
this policing?
[ffreida] so the way I express
my ideas, say in my paintings or label
- designs...right?
[emcsoap] That's why I wanted
to know where we could check, for ourselves,
- when a company was first
registered. I figured that it would help us figure
- out if we should pursue
infringement or not
[tdepp] freida--Right! It is
the expression of the idea that is protectable.
****************************
[ffreida] for us little guys,
I'm sure the scare tactic is about all we can
- afford!
[tdepp] It's kind of like
riding a tiger. You better hang on! Litigation is
- like war.
>> carolochs has joined channel
#XC.1804861
[emcsoap] good to see you back,
Carol
[carolochs] Man...this is like
dark ages type chat room...
[tdepp] Actually, litigation is
war.
[carolochs] Todd...how strong
is the case where people (customers) keep
- telling you someone else's
website look just like yours, and you were the
- first one with the site...?
Does that lend credence to the case? The
- reaction of others?
[tdepp] carol--it's always good
to have witnesses!
[carolochs] You know, don't
you...that if you stay, we're just going to keep
- picking your brain to
death?...<g>
[saponifier] I'd like to see
freida's question answered about copyrightable
- signatures, and if they are
needed for artwork?
[carolochs] This is what keeps
being a thorn in my side...customers reminding
- me how my infringer's site
looks so much like mine to them... grrr!
[carolochs] This is what keeps
being a thorn in my side...customers reminding
- me how my infringer's site
looks so much like mine to them... grrr!
[tdepp] hold on a bit
[allcraftsoz] I know it doesn't
cure things Carol, but wouldn't it be worth
- changing your site so's you
don't have that kind of hassle in the future?
[Reneerenee] Carol have you
approached this person with your suspicions?
[carolochs] Yes...I've tried
repeatedly to "deal" with this infringer--to no
- avail. I DID change my site
just to get away from the "sameness"...but the - basic lay-out is still
the same. I refuse to change what was originally mine ANYWAY, en tota !
[ffreida] I paint a mural and
take pics of various parts of the mural and the
- whole...I post pics on site
and then I go to someone else's site and I see my
- pics...I have the c in a
circle on my site and on my pics...what can I do
- about this?
[tdepp] carol that's reverse
passing off. the first user looks like the infringer.
[carolochs] Not when I can
prove dates and have copies of my material dated and sent to myself
Certified Mail...that will be hard to argue with
[ffreida] Re: the soaper whose
client claimed to make the soap themself....but labeling laws require
the manufacturer be listed...
[tdepp] freida--I guess you've
either got to tell them to knock it off or live with the infringement.
going after them will cost money for an attorney.
ffreida] so this is a case
where I should do the cease and whatever letter?
[carolochs] I guess a good
defense is to have a REALLY wacky, "out there"
- type of name and
image...something NO one would want to copy! <g>
[tdepp] I guess I'll say it
again. these are business decisions, just like
- who your suppliers are, where
you advertise, whether to sell online, etc.
[carolochs] But for someone who
markets SOLELY on-line--this is my
- livelihood....it's a big
issue.
[carolochs] That's why the
infringement abatement insurance is looking like a
- real alternative to me...
[allcraftsoz] what does
infringement abatement actually *do??
[ffreida] well the other
alternative, for the soaps that are relabeled is to
- report to the fda that you
are the manufacturer and the client has failed to
- list you as such...
[Reneerenee] I think you should
expose them carol. You know how connected
- [carolochs] the ins. is
basically coverage for the costs of going after
- someone...attorneys are
already on top of it, they do the footwork.
[allcraftsoz] sounds like it
makes good sense, after this chat, eh!
[ffreida] how much does the
abatement insurance run carol?
[carolochs] Reneee---re:
"exposing"--I "thought" that once before...but it was amazing how -
"some" of the soapin' community turned on me for DARING to expose
someone...you can't - believe how many told me "You should be flattered
that someone would want to copy you!"
[carolochs] I nearly puked at
the response! (excuse me)..as did many others....
[ffreida] I would've puked too!
[Reneerenee] That is insane! I
would feel very violated
[carolochs] The ins. is quoted
individually based on income, etc.... there's
- a link to this type ins. on
the COPYRIGHT site as well...
[carolochs] "Violated" was the
word...
[ffreida] looks like I'm going
to be spending time on your copyright site...
[allcraftsoz] You might also
want to check they're not like medical insurance, where if you have a
'pre-existing infringer' then they won't cover....
[carolochs] No..they do NOT
take pre-existing infringement cases....I checked.
[ffreida] I have the concerns
with my soaps and recipes and labels as well as - with my art work.
[carolochs] Education seems to
be in order for many...but not the whole answer...
[Reneerenee] Obviously these
people have never had this happen to them.
[ffreida] how could they have
had it happen to them when they so blatantly
- steal other's works?
[carolochs] Apparently....
[ffreida] and I still need to
find out about the copyrightable signature...
[carolochs] What goes around,
comes - around-- <g>)
[Reneerenee] I was referring to
the soapers that were not sympathetic to - carols feelings about being
ripped off
*****************************************
[carolochs] Kathy? have you had
any trouble with the newsletter?
saponifier] LOL- not as yet,
and if and WHEN :;;doubling fists::: ;-)
[Reneerenee] To do this
policing of your property do you spend so much time
- going through soap sites or
what?
[carolochs] I, nor anyone has
time for that...
[ffreida] I guess I will have
to compose one of those cease and desist
- letters for my artwork...now
that is blatant! stealing someone's photos of
- their art and passing it off
as their own!
[carolochs] I was told of all
counts I experienced, by other soapers...And obviously I greatly
appreciated this!!
[saponifier] you'd almost have
to.
[carolochs] others saw the
similarities and told me by e-mail
[carolochs] I now have html
coding to prevent right-clicking of photos or direct cut & paste
theft--until someone - figures out how to bypass that, at least it makes
it harder to copy without writing it down first <g>...but generally
people who steal this stuff aren't all that bright "upstairs"...to
figure out bypassing the no-right-click
[emcsoap] back to what renee
said...how can one possibly police all the - thousands of soap websites
out there/
[ffreida] I'll bet...especially
if the person was stupid enough to use your
- pics with your labels on
them!
[Reneerenee] I agree! Stealing
is always wrong.
[carolochs] You can't really
police. Just react when it happens and be
- prepared to know what to
do...and be registered, etc.
[ffreida] or begin billing them
for the use of your information...sending
- them a bill regularly with
interest for the unpaid balance might do the
- trick...
[carolochs] Fortunately---the
soapmaking community IS pretty
- well-knit....word gets out.
[emcsoap] Melanie, what is
"dunning"?
[allcraftsoz] Dunning is what
Dun & Bradstreet do to get your money
[allcraftsoz] they don't stop
calling
[allcraftsoz] until they get
it.
*****************************************
[allcraftsoz] ack that would
hurt.
[Reneerenee] I still think that
most soapers would find this stealing - appalling. I couldn't possibly
keep my mouth shut. I would be whining to - anyone who would listen.
[carolochs] The COSTS of
pursing an infringement case is the big issue...to me...
[carolochs] A lot of support or
non-support of CI in the soapin' world seems - to be political..or who
likes who, kind of thing, newbie vs. professional...sad to say....
[Reneerenee] I think the
insurance is the best way to handle that
[ffreida] to all of us, I
think...most of us just cannot afford that kind of drawn out legal
battle.
-- END --
--------------------------------------------
Todd also sent me a follow-up
note to our chat:
<<Thanks for inviting me to
conduct the chat on IP (intellectual property) issues. I detected quite
a bit of frustration regarding infringement problems. I think your
community has to view dealing with infringements in an IP-rich business
like soapmaking as a cost of doing business. Education can help prevent
the "innocent" infringers. But those who want to rip you off will also
weigh the rewards v. the risks. Also, hiring a lawyer, particularly as a
small business person, is not fun. But I think an attorney, just like
your banker, insurance agent, or accountant, is someone who should be a
part of your team to help the business grow and prosper. That's my two
cents worth! -Todd >>
Personally, I'm finding this to
be very true. The more my business grows, the more the need arises for
professional counsel not only for infringement issues, but on contracts,
etc. The costs of a good attorney is worth all the expensive headaches
you can avoid later. ~Carol
This is a site 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!!!
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!"
Honesterror 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.
- 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 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.
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!
"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!
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.
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!)!
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.
--------------------------------
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?
[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
- looks like this: Copyright
1999 Todd D. Epp. All rights Reserved.
[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
[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
- licensing.
[tdepp] fred--cr is about
expression. ideas aren't protectable.
>> CarolOchs has left channel
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[Reneerenee] How would one do
this policing?
[ffreida] so the way I express
my ideas, say in my paintings or label
- designs...right?
[emcsoap] That's why I wanted
to know where we could check, for ourselves,
- when a company was first
registered. I figured that it would help us figure
- out if we should pursue
infringement or not
[tdepp] freida--Right! It is
the expression of the idea that is protectable.
****************************
[ffreida] for us little guys,
I'm sure the scare tactic is about all we can
- afford!
[tdepp] It's kind of like
riding a tiger. You better hang on! Litigation is
- like war.
>> carolochs has joined channel
#XC.1804861
[emcsoap] good to see you back,
Carol
[carolochs] Man...this is like
dark ages type chat room...
[tdepp] Actually, litigation is
war.
[carolochs] Todd...how strong
is the case where people (customers) keep
- telling you someone else's
website look just like yours, and you were the
- first one with the site...?
Does that lend credence to the case? The
- reaction of others?
[tdepp] carol--it's always good
to have witnesses!
[carolochs] You know, don't
you...that if you stay, we're just going to keep
- picking your brain to
death?...<g>
[saponifier] I'd like to see
freida's question answered about copyrightable
- signatures, and if they are
needed for artwork?
[carolochs] This is what keeps
being a thorn in my side...customers reminding
- me how my infringer's site
looks so much like mine to them... grrr!
[carolochs] This is what keeps
being a thorn in my side...customers reminding
- me how my infringer's site
looks so much like mine to them... grrr!
[tdepp] hold on a bit
[allcraftsoz] I know it doesn't
cure things Carol, but wouldn't it be worth
- changing your site so's you
don't have that kind of hassle in the future?
[Reneerenee] Carol have you
approached this person with your suspicions?
[carolochs] Yes...I've tried
repeatedly to "deal" with this infringer--to no
- avail. I DID change my site
just to get away from the "sameness"...but the - basic lay-out is still
the same. I refuse to change what was originally mine ANYWAY, en tota !
[ffreida] I paint a mural and
take pics of various parts of the mural and the
- whole...I post pics on site
and then I go to someone else's site and I see my
- pics...I have the c in a
circle on my site and on my pics...what can I do
- about this?
[tdepp] carol that's reverse
passing off. the first user looks like the infringer.
[carolochs] Not when I can
prove dates and have copies of my material dated and sent to myself
Certified Mail...that will be hard to argue with
[ffreida] Re: the soaper whose
client claimed to make the soap themself....but labeling laws require
the manufacturer be listed...
[tdepp] freida--I guess you've
either got to tell them to knock it off or live with the infringement.
going after them will cost money for an attorney.
ffreida] so this is a case
where I should do the cease and whatever letter?
[carolochs] I guess a good
defense is to have a REALLY wacky, "out there"
- type of name and
image...something NO one would want to copy! <g>
[tdepp] I guess I'll say it
again. these are business decisions, just like
- who your suppliers are, where
you advertise, whether to sell online, etc.
[carolochs] But for someone who
markets SOLELY on-line--this is my
- livelihood....it's a big
issue.
[carolochs] That's why the
infringement abatement insurance is looking like a
- real alternative to me...
[allcraftsoz] what does
infringement abatement actually *do??
[ffreida] well the other
alternative, for the soaps that are relabeled is to
- report to the fda that you
are the manufacturer and the client has failed to
- list you as such...
[Reneerenee] I think you should
expose them carol. You know how connected
- [carolochs] the ins. is
basically coverage for the costs of going after
- someone...attorneys are
already on top of it, they do the footwork.
[allcraftsoz] sounds like it
makes good sense, after this chat, eh!
[ffreida] how much does the
abatement insurance run carol?
[carolochs] Reneee---re:
"exposing"--I "thought" that once before...but it was amazing how -
"some" of the soapin' community turned on me for DARING to expose
someone...you can't - believe how many told me "You should be flattered
that someone would want to copy you!"
[carolochs] I nearly puked at
the response! (excuse me)..as did many others....
[ffreida] I would've puked too!
[Reneerenee] That is insane! I
would feel very violated
[carolochs] The ins. is quoted
individually based on income, etc.... there's
- a link to this type ins. on
the COPYRIGHT site as well...
[carolochs] "Violated" was the
word...
[ffreida] looks like I'm going
to be spending time on your copyright site...
[allcraftsoz] You might also
want to check they're not like medical insurance, where if you have a
'pre-existing infringer' then they won't cover....
[carolochs] No..they do NOT
take pre-existing infringement cases....I checked.
[ffreida] I have the concerns
with my soaps and recipes and labels as well as - with my art work.
[carolochs] Education seems to
be in order for many...but not the whole answer...
[Reneerenee] Obviously these
people have never had this happen to them.
[ffreida] how could they have
had it happen to them when they so blatantly
- steal other's works?
[carolochs] Apparently....
[ffreida] and I still need to
find out about the copyrightable signature...
[carolochs] What goes around,
comes - around-- <g>)
[Reneerenee] I was referring to
the soapers that were not sympathetic to - carols feelings about being
ripped off
*****************************************
[carolochs] Kathy? have you had
any trouble with the newsletter?
saponifier] LOL- not as yet,
and if and WHEN :;;doubling fists::: ;-)
[Reneerenee] To do this
policing of your property do you spend so much time
- going through soap sites or
what?
[carolochs] I, nor anyone has
time for that...
[ffreida] I guess I will have
to compose one of those cease and desist
- letters for my artwork...now
that is blatant! stealing someone's photos of
- their art and passing it off
as their own!
[carolochs] I was told of all
counts I experienced, by other soapers...And obviously I greatly
appreciated this!!
[saponifier] you'd almost have
to.
[carolochs] others saw the
similarities and told me by e-mail
[carolochs] I now have html
coding to prevent right-clicking of photos or direct cut & paste
theft--until someone - figures out how to bypass that, at least it makes
it harder to copy without writing it down first <g>...but generally
people who steal this stuff aren't all that bright "upstairs"...to
figure out bypassing the no-right-click
[emcsoap] back to what renee
said...how can one possibly police all the - thousands of soap websites
out there/
[ffreida] I'll bet...especially
if the person was stupid enough to use your
- pics with your labels on
them!
[Reneerenee] I agree! Stealing
is always wrong.
[carolochs] You can't really
police. Just react when it happens and be
- prepared to know what to
do...and be registered, etc.
[ffreida] or begin billing them
for the use of your information...sending
- them a bill regularly with
interest for the unpaid balance might do the
- trick...
[carolochs] Fortunately---the
soapmaking community IS pretty
- well-knit....word gets out.
[emcsoap] Melanie, what is
"dunning"?
[allcraftsoz] Dunning is what
Dun & Bradstreet do to get your money
[allcraftsoz] they don't stop
calling
[allcraftsoz] until they get
it.
*****************************************
[allcraftsoz] ack that would
hurt.
[Reneerenee] I still think that
most soapers would find this stealing - appalling. I couldn't possibly
keep my mouth shut. I would be whining to - anyone who would listen.
[carolochs] The COSTS of
pursing an infringement case is the big issue...to me...
[carolochs] A lot of support or
non-support of CI in the soapin' world seems - to be political..or who
likes who, kind of thing, newbie vs. professional...sad to say....
[Reneerenee] I think the
insurance is the best way to handle that
[ffreida] to all of us, I
think...most of us just cannot afford that kind of drawn out legal
battle.
-- END --
--------------------------------------------
Todd also sent me a follow-up
note to our chat:
<<Thanks for inviting me to
conduct the chat on IP (intellectual property) issues. I detected quite
a bit of frustration regarding infringement problems. I think your
community has to view dealing with infringements in an IP-rich business
like soapmaking as a cost of doing business. Education can help prevent
the "innocent" infringers. But those who want to rip you off will also
weigh the rewards v. the risks. Also, hiring a lawyer, particularly as a
small business person, is not fun. But I think an attorney, just like
your banker, insurance agent, or accountant, is someone who should be a
part of your team to help the business grow and prosper. That's my two
cents worth! -Todd >>
Personally, I'm finding this to
be very true. The more my business grows, the more the need arises for
professional counsel not only for infringement issues, but on contracts,
etc. The costs of a good attorney is worth all the expensive headaches
you can avoid later. ~Carol
Simply
Soap®
