Thứ Năm, 13 tháng 12, 2018

How much is a trademark and how does it work?

BY Pham Thuy Linh IN , , , , No comments

The trademark symbol ™ can be used by anyone to identify a word, words, or symbol used to identify their business, product or services. There is no requirement to use the ™ symbol and their use has no legal significance, but it is wise to do so. When you use the ™ you notify the public of your claim of branding rights in a particular mark and in turn dissuade others from adopting the same or similar mark for the same or similar products or services. This staves off unwitting trademark infringement.

However, the registered trademark symbol ® may only be used by the owner of a mark following registration with the relevant national authority, such as the U.S. Patent and Trademark Office (USPTO), and you can find the latest fee information here: View Fee Schedule: Trademark Fee Information.

Here are some reasons the USPTO gives for registering your trademark:
constructive notice to the public of the registrant's claim of ownership of the mark;
a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;
the ability to bring an action concerning the mark in federal court;
the use of the U.S registration as a basis to obtain registration in foreign countries; and
the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.

Thứ Tư, 12 tháng 12, 2018

What are the risks of using a trademarked brand name in a domain name?

BY Pham Thuy Linh IN , , , No comments

Having a trademark brand in your domain name is a risk. If the domain was registered before the trademark was, then your registrar may stand behind you and will not immediately transfer the domain to the company which is complaining about trademark infringement. In this case, you may ask for a monetary compensation before transferring domain ownership, though you should have a lawyer look at your case.

However, if your domain name was registered more recently than the trademark registration date, then the company holding the trademark may ask your domain registrar to transfer the domain ownership to them. The registrar will most likely comply, looking to avoid complications. In western countries, trademark infringement is a very serious legal violation.

Thứ Hai, 10 tháng 12, 2018

How can you buy someone else's trademark?

BY Pham Thuy Linh IN , , , No comments

Mr. Sivochek’s answer is correct and I have little to add. You cannot buy just the trademark registration in the U.S.; you must by the whole business and goodwill associated with the mark that is registered. Naturally, that business must still be functioning and the mark still in use in U.S. Commerce as well. Anything less, and you are buying just the piece of paper that comprises the registration certificate and therefore little, if anything, should be paid for that.

I suppose that if the business is not operating any longer and a valid US registration exists that you want to acquire or would register yourself (i.e. it recites goods/services that appropriately describes your business), that registration could have some “nuisance value” in terms of being desirable just to avoid a likelihood of confusion refusal by the USPTO in your application. So if you were to “buy” a registration certificate like that for a mark that may not be in use, label the transaction accordingly and pay the appropriate corresponding amount. In other words, don’t buy the “mark” or trademark right that is not affixed to an ongoing business because that could be a transfer of a mark “en grosse” which would invalidate the mark and the registration.

If you don’t follow this, or if you think it is complicated, I would say that it is and you should work with a U.S. trademark attorney on this.

Thứ Năm, 6 tháng 12, 2018

The Regulations on Mediation in the Draft of Law on Mediation, and Dialogue in Vietnam

BY Pham Thuy Linh IN , , No comments

Over the past few years, the civil cases or administrative claims have been increasing on quantity as well as complex nature. There are opinions that, in reality, while Western countries choose negotiation or mediation as the first measure of dispute settlement, court is favored in Vietnam as main measure of dispute resolutionin Vietnam. Theoretically, Vietnam legal system shows that the regulations on mediation, dialogue have been relatively formulated during the judicial reform process. To address the gap in reality, there are recent changes in regulations encouraging parties to use mediation and dialogue as dispute resolution. Recently, the Draft Law on Mediation, Dialogue at the Court has been published since 01 October 2018 for public opinions.
In order to implement mediation and dialogue at court, the Chief Justice of People’s Supreme Court issues the decision on establishing Mediation and Dialogue Center including Director, Deputy Director(s), Mediators. The Director is the head of Center appointed by one of two following measures: (1) the Chief Justice of the Court in the locality where the Center is located assigns the Judge to act according to the rotational regime; or (2) the Mediators elect among themselves. Human resources are mobilized to appoint Mediators selected from the followings: (1) retired Judges, Procurators, Investigators and other retired judicial officials; (2) Retired junior or senior officials; (3) Experts and other professionals with at least 10 years of experience in its work; and (4) Person with high prestige in society and satisfying the following standards:
– Being a Vietnamese citizen, residing in Vietnam, loyal to the Fatherland and the Constitution of the Socialist Republic of Vietnam, having good moral qualities, having strong political will and prestige in the community, honest, objective;
– Having good health to ensure the fulfillment of the assigned tasks;
– Having experience and capacity for mediation and dialogue;
– Volunteer for mediation, dialogue settlement.
In the situation of tight state budget and overload of work at Court, the mobilization of human resources not belonging to the State but meeting certain criteria for being Mediators is one of the necessary requirements to ensure the success of this regulation.
Scope of Court Annexed Mediation and Dialogue in Vietnam
Scope of mediation and dialogue under the provision of this Draft shall be applicable to civil and administrative disputes; request for recognition of voluntary divorces, child custody agreement, division of property upon divorce within the jurisdiction of the Court according to the provisions of the Civil Procedure Code, Law on Administrative Procedures or civil, administrative dispute requested by one or more parties to the Court annexed mediation and dialogue for settlement.
The Procedures for Court Annexed Mediation and Dialogue in Vietnam
Upon receipt of the lawsuit petition, petition for recognition of voluntary divorces, child custody agreement, division of property upon divorce as provided in Article 190 of the Civil Procedure Code, Article 119 of the Law on Administrative Procedures, the Court shall forward the petition, request and the documents and evidences enclosed to the court annexed Mediation and Dialogue Center when satisfying the following conditions: (1) The case falls under the jurisdiction of the Court; (2) The claimant, the defendant do not refuse the mediation or dialogue before the court accepts the case; and (3) The case shall not fall into the case which must not be mediated under the provisions of the Civil Procedure Code or which dialogues cannot be held under the Law on Administrative Procedures.

According to the prevailing laws, there are two types of conciliation: pre-litigation conciliation and conciliation in litigation proceedings. The conciliation process under Civil Procedure Code, Law on Administrative Procedures shall not be governed by the Law on Mediation and Dialogue. Therefore, mediation under this draft law is in the form of optional pre-litigation mediation.
Recognition and Enforcement of Court Annexed Mediation Settlement in Vietnam
After mediation or dialogue, the parties can request the Court to recognize the successful mediation or dialogue settlement. The decision to recognize or to not recognize a successful out-of-Court mediation result shall immediately take effect and shall not be appealed against according to appellate procedures (Item 8 of Article 419 of the Civil Procedure Code 2015), but can be protested according to cassation or reopening procedures under the provisions of the Civil Procedure Code. This provision is also recorded in the Draft of Law on Mediation, Dialogue. Out-of-court mediation results are recognized by the court and will be enforced by civil judgment enforcement agencies under law on enforcement.

From the international experience and the reality of Vietnam, the effective implementation of the mechanism of mediation and dialogue has great significance for the settlement of civil and administrative disputes, promotes consensus in society; reduces the number of cases workload, the demand to bring to trial; facilitates the Court to focus resources to further improve the quality of the trial.
Pilot Project of Court Annexed Mediation in Vietnam
Through the pilot project under decision No. 332/QD-TANDTC dated Mar 9th, 2018, Official letter No. 48/TANDTC-PC dated Mar 9th, 2018, and Official letter No. 72/72/TANDTC-PC dated Apr 16th, 2018 the Mediation and Dialogue Center in Hai Phong has received more than 2,500 petition and brought to mediation, dialogue nearly 2,400 applications. The project has been expanded to Hanoi, Ho Chi Minh City, Da Nang, Bac Ninh, Khanh Hoa, Long An. The results and experience of the project will be an important basis for the drafting of the Law on Mediation and Dialogue.
Tuan Nguyen, Esq., CEDR Accredited Mediator

Thứ Tư, 5 tháng 12, 2018

How do you trademark a word that you made up?

BY Pham Thuy Linh IN , , , No comments

The requirements to register a trademark are:

That the mark be used to describe a service, product, business. That it be used as a brand.
That the item being named by the trademark is in business or currently available to purchase. That is, that it is currently used “in trade”.

That your application describe the product or business sufficiently that the trademark office can assign it to a specific class of business (e.g. apparel). Trademarks only limit use by other businesses within that class of business. Apple Plumbing does not have to worry about being sued by Apple, who are in the class of electronic goods and computer software (among others).

I suspect what you are really trying to do is prevent anyone else from using this word that you made up. A word that has a specific definition in English and an intended use when communicating.

Trademark (and copyright, for that matter) are not at all interested in limiting the ability of people to communicate. Words, names, punctuation, symbols/letters/numbers are all without protection, free for anyone to use in normal communication. The trademark of “Apple” clearly doesn’t prohibit me from discussing the fruit that makes a delicious pie or strudel. It only prohibits me from using it to describe my own product or business which competes with Apple’s existing products or business.

Chủ Nhật, 2 tháng 12, 2018

Why do copyrights last so long?

BY Pham Thuy Linh No comments

I strongly recommend that interested parties read this full article on Wikipedia covering copyright law and its evolution: History of copyright law

The good old House of Lords in England made the call in the mid 1700's that both Public Domain and statue-defined Copyright existed. France and the US were also grappling with how to promote, protect and ultimately share with the public any works. Remember, before this only a specific publisher in London would forever be the one with the right to print Shakespeare; a right under attack by devilish Scottish printers (how dare they!)

Now that the terms were subject to legislation, a moderate term of 14 years (with an extension of 14 more possible if the author was still alive) secured a limited monopoly that was intended to hold the author through to the end of his days and secure a reasonable inheritance for one's children. Not at all unexpected in societies that had Land Owners who derived profit by renting their land to use by farmers, workers or industry. (Read some Adam Smith if you want to hear more about how Rent is a fundamental element in economic understanding at the time.)

A hundred years later and we have internationalization of the scheme being defined in treaty. In the Berne Convention, signatories were all agreeing to Lifetime-plus-fifty-years as the new minimum term.

How did we get that jump? Again, the publishers constantly push things back toward their original conception of perpetual copyright. These expansions always cite the author's need, but benefit the business to an equal or greater amount. And terms have been pushed farther and farther out over the decades. Partially because it turns out there is big business in making sequels and derivative works.

Literature has turned from being primarily a means of disseminating information and turned into an entertainment venue where the public is voracious for new-but-familiar content. (Amusingly, this does not hold true for music, which falls completely out of public favor in about 40-50 years. Yet the RIAA is one of the fiercest fighters of copyright protections.)

Content publishers now fear that someone will make a better version of James Bond's Casino Royale if they are given the chance to make their own derivatives. And they are probably right. But that's not the best justification for 110-year-long copyright terms just so we can protect Mickey Mouse's first movie.

Thứ Năm, 29 tháng 11, 2018

How do I trademark and copyright my logo and wordmark?

BY Pham Thuy Linh IN , , , No comments

Henry Thoreau once said: "It's not what you look at that matters, it's what you see." So let's clarify some terms and definitions first, to make sure we are on the same page here and that you see the same things I see.

When speaking about "logos" and "word marks", it is important to realize that those terms are not interchangeable, from a trademark attorney's perspective. There is a clear legal distinction. By definition, a “word mark” includes words only. If a mark includes some graphical/design elements instead of, or in addition to, words, then a trademark attorney would refer to such a mark as a “design mark” or a “logo”.

So if you have two separate trademarks (one of which is a word mark and another is a logo/design) then those would be two separate trademark applications. That applies even if the logo incorporates the same wording that you use separately as a word mark. Assuming both the logo and the word mark are used for exactly the same goods/services, then, yes, you would claim the same International Class(es) in both applications.

If a design mark / logo crosses a certain originality threshold, then it can also be eligible for copyright protection. The threshold is not overly high, but it does exist. If you merely apply some minor stylization to your word mark (e.g., the words appear in an unusual font) or your mark consists of a simple geometrical shape (e.g. a circle) with some words inside, then there might not be enough originality there to claim copyright protection. On the other hand, if a logo incorporates a drawing of animals, objects, people, etc., then it will be much more likely that the originality threshold has been crossed, and copyright protection will automatically attach to the logo as of the date it was created. There is a maze of rules as to which logos are copyrightable and which are not, but I think you got the overall picture.

As to word marks, generally they cannot be copyrighted, but like with everything in life, there are exceptions. But that is a separate long story.

A copyright owner is not required to obtain a copyright registration for his/her work (since copyright protection is automatic), but it is a very good idea to get a formal copyright registration as that provides significant benefits (i.e., public record of ownership, which can negate certain defenses an infringer might have, access to federal courts, a certain level of protection against importation of counterfeit products, etc.)

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