Category: Intellectual Property Law

Has The DRAGON SLAYER Trademark Been Slain? (UPDATE 11/28/18)

UPDATE:

The USPTO has retracted its approval to publish and issued a rejection based on failure to function as a trademark. This is pretty much the worst thing that can happen to a trademark registration application. It means the mark can’t be registered even on the Supplemental Register or become a potentially registerable mark if it acquires secondary meaning/acquired distinctiveness. The only way to get around this type of rejection is to argue that the finding of failure to function is wrong, and that is not easy to do. Unless the applicant is spoiling for a long, difficult, and expensive fight, the registration application is probably dead.

ORIGINAL POST:

Back in June, MSE Media, LLC, the management company (I assume) for the rights of bestselling author Michael Scott Earle, filed a trademark registration application for the word mark DRAGON SLAYER. You can see the filing information here:

TSDR Info for “DRAGON SLAYER.”

At the time, there was some controversy, as the author community (especially the Internet/Indie author community) was on High Alert for trademark shenanigans following the “COCKY” word mark lawsuit. However, due to the way trademark registration works, there were a limited number of things that third parties could do at that point. I’ll explain briefly, and then discuss the particulars of the DRAGON SLAYER filing.

Trademarks, as trademark expert Ed Timberlake (of @timberlakelaw and Timberlake Law) is fond of pointing out, are not actually “granted” or “awarded” or “given” by the United States Patent and Trademark Office (USPTO) or its equivalent agencies in other countries. Trademarks are, essentially, earned. And the way you earn them is by forming an association in the minds of consumers between your product or service, and the trademark. (We usually refer to them collectively as trademarks, although linguistically it’s more correct to call the ones associated with a service “service marks.”) Once that happens, the law in most countries automatically starts to protect consumers by proscribing use of the mark by other people in ways that could create a likelihood of confusion in the marketplace.

Continue reading Has The DRAGON SLAYER Trademark Been Slain? (UPDATE 11/28/18)

General Partnerships: The Creeping Doom

A few weeks ago I wrote a blog post on corporate entities, including General Partnerships and Limited Partnerships. Here’s what I said about General Partnerships, which I’m going to expand on in this post:

The first thing I should point out is that if you start working with other people, and don’t pick a legal entity, in many cases, the state will pick one for you. And to quote my colleague @indiegamelawyer, it will usually pick the worst possible one. Namely, a general partnership.

A general partnership is the oldest form of legal entity. Once two or more people start engaging in a common business enterprise they can form a general partnership without even realizing it – it happens by operation of law in many jurisdictions. (Alternately, you can formally create one by entering into a partnership agreement.) Basically, everyone participating is a general partner, usually able to contract on behalf of the partnership, usually having an equal right to manage the partnership, and usually liable for all debts incurred by the partnership. The takeaway here is that if you’re going to go into business with someone, you need to form an entity deliberately or you may very well enter into a general partnership without even knowing it and without any control over the form of the partnership.

NOTE: Formally created General Partnerships are usually identified by the word “Partners” or “Partnership” in their names. They are governed either by the law of the state where they form, or by their Partnership Agreements. They are owned and operated by Partners.

Now, what I want to call your attention to in particular is the text in bold in the above quote. “By operation of law” means that the law says when the conditions are met, the partnership forms, will ye, nil ye. You can’t stop it, and you don’t have to do anything other than meet the conditions. What those conditions are will vary by jurisdiction, but in many US states it’s either a part of the common law or the principle has been transferred into a statute (a law passed by a legislature) which works pretty much the same way.

Continue reading General Partnerships: The Creeping Doom

Rate Changes – Last Call for Lower Fees!

(In some jurisdictions this post may be considered ATTORNEY ADVERTISING.)

I am raising my hourly and standard fixed fees as of October 1, 2018. I’ll still be charging less than most lawyers with my qualifications and experience, but I will be increasing what I charge to reflect the fact that the world’s not getting any cheaper.

But here’s your chance to get my services at my current lower rates!

If you are a current client of mine, I will continue to charge you my current rates for the next six months (until April 1, 2019.)

If you become a client of mine before October 1, I will charge you my current rates for the next six months (likewise.)

If you add yourself to my mailing list, I will charge you my current rates for your first matter if you become a client of mine within the next twelve months (by September 30, 2019.) Don’t worry, I don’t send out a lot of emails – mostly just notices when I post on my blog or something interesting happens in the world of intellectual property law. I don’t share my mailing list with anyone, ever.

If you’d like to become a client, here’s a page with more information: Retaining Me As Your Attorney

If you’d like to add yourself to my mailing list, just send an email to marc@legalinspiration.com with the subject “Mailing List.” Clicking on that link will automatically generate an email for you!

As always, thanks for reading!

-Marc

Is The #Cockygate Closed? (Updated x2)

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Previous posts on Cockygate:

Romance Author Gets Unduly Cocky Over Registered Trademark: http://legalinspiration.com/?p=503

#Cockygate Take Two: This Time It’s Judicial: http://legalinspiration.com/?p=538

Hello, friends!

Well, it’s been a weird ride. And although it seems like it’s been forever, in Federal court case terms, it’s been a fairly short one. Yesterday Faleena Hopkins and Hop Hop Productions filed a Motion to Dismiss with Prejudice in Hop Hop Productions Inc. v. Kneupper et al:

Motion to Dismiss – Hop Hop Productions Inc. v. Kneupper et al

If the judge grants the motion, and he almost certainly will, this means is that neither plaintiff (Ms. Hopkins or her company Hop Hop Productions) can file another lawsuit against the same defendants for the same legal causes of action based on the same facts. (That’s the “with prejudice” part.)

So is the #Cockygate closed? Will our sexy roosters now stay safely within the barnyard of alpha romance tales?

Maybe.

Continue reading Is The #Cockygate Closed? (Updated x2)

Appearance On The “Deadman’s Tome” Podcast!

I was flattered to be asked to appear on the “Deadman’s Tome” podcast recently. While the podcast is primarily oriented toward horror fans, the host, “Mr. Deadman,” ran across the #CockyGate saga on Twitter and wanted to discuss the general issue of registering simple words as trademarks for book series. We talked about what trademarks are, how they work. and what’s going on with the #CockyGate lawsuit and PTO process. We also talked about lootboxes and I displayed my utter inability to commit to a favorite horror movie. Check it out!

Deadman’s Tome Podcast – Marc Whipple on #CockyGate and more

As always, thanks for reading!

Marc