Intellectual Property

Can Two Business or Products Have the Same Name? You’ve come up with a clever name for your product or business and run a Google search on it, and there’s another product or business with the same name, or a very close one, in another state. But they haven’t registered the trademark with the U.S. Patent & Trademark Office. It may be tempting to go ahead and use the name because you like it and have become attached to it. In this scenario, you could use the name. The other company, with an unregistered trademark, only has limited rights, called “common law” trademark rights, which are not nearly as expansive as registered trademark rights. The company who first used the name and didn’t register it can only enforce its rights against others who use the name in the same geographic area where they have a certain threshold of market presence. Depending on the business model, including the extent of their online sales vs. a business that is only local (e.g. single location coffee shop), you can legally use the same name in another part of the country if they haven’t registered the trademark. But should you? Let’s look at a few possible scenarios involving the single location coffee shop: You Don’t Register the Trademark It’s been open in one location for 2 years in Virginia. They didn’t register the trademark. You’re opening a tea shop in Florida and decide to use the same name. At the moment, it’s unlikely either of you would have any cause of action against the other for trademark infringement, because unregistered trademark rights are geographically limited. A year after you open your tea shop in Florida, the Virginia coffee shop decides to start selling its ground coffee online and expanding its locations. It has a substantial number of customers in Florida, and they’ve realized they need to register the trademark. They register the trademark. Now, they have national rights to the name and can stop anyone else with a coffee shop (and probably a tea shop) from using the name, including you, because you started using the name in commerce after they did. After all the dollars you’ve invested in marketing your tea shop, you could be forced to change the name. You Register The Trademark Now let’s say you’re ahead of the game and you register the trademark for your tea shop as soon as you open for business. You now have national rights in the name . . . however, the Virginia coffee shop was using the name before you were. Even with your registered trademark, they can still use the name because they were using it first. You have trademark rights against anyone coming later in time than you, but never against anyone coming before you. And now the Virginia coffee shop wants to expand their business online and with new stores, moving into other states. If your registered trademark is less than 5 years old (meaning it is not yet eligible for incontestability), they can file a petition to cancel your trademark registration, file for registration themselves, and force you to change the name. Need Help with Trademark Registration? “No matter how much you like a particular product or business name, it’s not worth the risk of headaches and expense to use a name that’s already taken anywhere, whether they have registered the trademark or not.” According to trademark attorney, Ashley Brewer And besides, don’t you want to stand out in the market with a clever name that no one else has? Be original! It will pay off. Contact the intellectual property lawyers at BrewerLong today.

A trade secret is a form of intellectual property. As the name implies, it is ‘secret’ information that gives a business a competitive advantage. Trade secrets can come in a wide range of different forms. Some of the most common examples include formulas, practices, designs, patterns, processes, commercial methods, and any combination of the above. Trade secrets are protected under both state and federal law, including the Florida Uniform Trade Secrets Act (Florida Statutes § 688.001) and the federal Defend Trade Secrets Act (DTSA). In this article, our Orlando intellectual property attorneys explain the most important things that you need to know about trade secret misappropriation claims in Florida. What is a Trade Secret? A trade secret is a confidential device, technique, or strategy that a business uses, in some manner, to obtain a commercial benefit. To qualify for trade secret protection under state and federal regulations, information must be truly secret, it must offer a tangible competitive advantage, and the trade secret holder must take reasonable steps to protect their confidential information. If any of those criteria are not met, then legal protection may not apply. More specifically, the three key elements of a trade secret are: Actual Secrecy: Information that is already known or that is readily discoverable by competitors is, by definition, not a trade secret. Actual secrecy is required. Economic Value: You cannot obtain trade secret protection for just any information. In order to qualify for protection, the information must have actual commercial value to the company. If no competitive advantage is offered, then it is not a trade secret. Active Protection: Finally, Florida companies must be making active efforts to protect their trade secrets. If a company fails to try to secure information, then it may lose its ability to seek trade secret protection. What Remedies are Available in a Trade Secret Misappropriation Claim? There are a number of different remedies that may be available through a trade secret misappropriation claim. At BrewerLong, our Orlando trade secret misappropriation attorneys are strong, effective advocates for our clients. We are committed to helping companies protect their sensitive and confidential information and, when trade secret misappropriation does occur, recover the maximum available compensation for any damages. Depending on the specific nature of the trade secret misappropriation, the following remedies may be available: Injunctive Relief: Injunctive relief (an injunction) is a court order compelling a party to refrain from a specific action or, alternatively, to take a specific action. In the context of trade secret misappropriation, injunctive relief can sometimes be used to stop continued misappropriation and to preserve the secrecy of the sensitive information. It is one of the most important tools in a trade secret misappropriation lawsuit. Actual Damages: State and federal courts have the authority to award plaintiffs financial compensation for their actual economic damages. These damages can come in a wide range of different forms, from a company’s direct financial losses to the illicit profits that they were denied. Calculating damages in a trade secret misappropriation is notoriously challenging. Companies should be represented by an experienced Florida IP lawyer who can help them recover the full and fair financial damages that they rightfully deserve. Attorneys’ Fees/Legal Costs: In some cases, courts may award victims of trade secret misappropriation attorneys’ fees or court costs. Though, this is not required under the law. Generally speaking, Florida courts typically only award in this remedy when the defendant is determined to have acted willfully or maliciously in violating the plaintiff’s intellectual property rights. Punitive Damages: Finally, in some limited cases, courts may award punitive damages. As described by the Cornell Legal Information Institute, punitive damages are meant to punish the wrongful actions of the defendant. Generally, punitive damages will only be awarded if the defendant is deemed to have acted in bad faith or if they made significant profits because of the trade secret misappropriation. Four Tips Florida Companies Protect their Trade Secrets 1. Know What Needs to Be Protected As a starting point, Florida companies seeking to protect their trade secrets need to know exactly what they have to protect. As was mentioned, state and federal regulations require companies to take proactive measures to keep their trade secrets confidential. Failure to do so could potentially prevent a company from pursuing a trade secret misappropriation claim. 2. Use Written Agreements With Employees and Contractors If employees, independent contractors, or other outside parties have access to trade secrets, the companies should require them to sign a written agreement. Among other things, the agreement should include a strict confidentiality or nondisclosure agreement. In the unfortunate event that trade secret misappropriation does occur, a well-drafted agreement will make it far easier to take legal action. 3. Limit Access Whenever Possible Ideally, companies can avoid dealing with issues of trade secret misappropriation altogether. One of the keys to protecting trade secrets is to limit unnecessary access to sensitive, confidential information. If an employee does not actually need to know the trade secret to perform their job, then they probably should not be given access to it at all. The fewer people that have access to trade secrets, the better.   4. Take Immediate Action to Address Violations If you believe that trade secret misappropriation has occurred, it is imperative that you take immediate action to protect your rights. When trade secret misappropriation is allowed to linger, a company may eventually lose its right to take action. Beyond that, the sensitive information may be shared with an ever expanding number of parties. The bottom line: Contact an experienced Orlando, FL intellectual property lawyer right away. Speak to an Orlando, FL Trade Secret Misappropriation Attorney Today At BrewerLong, our top-rated Florida intellectual property lawyers have deep experience handling the full range of trade secret misappropriation claims. If your company is considering filing a claim for trade secret misappropriation or if you are facing a lawsuit for alleged trade secret misappropriation, we are available to help. To arrange a free, no obligation introductory phone call with our…

According to the most recent data published by the United States Patent and Trademark Office (USPTO), there are more than 600,000 patent applications filed every year. For many businesses in Florida, patents are a key part of their overall assets. When patent rights are infringed upon, it can cause tremendous financial damage to the business — companies need to be ready to take immediate action to protect their interests. This raises an important question: What constitutes patent infringement? It is not an easy question to answer. Indeed, many complex disputes arise of what is and what is not patent infringement. We want to make sure that you have the tools and information that you need to protect your rights. Here, Orlando intellectual property attorneys provide an overview of the standard for proving patent infringement. Patent Infringement: Understanding the Basics A patent is a type of intellectual property that grants the owner (the patent holder) the legal authority to exclude other parties from making, using, or selling an invention for a predetermined number of years. In exchange, the patent holder will publicly disclose some information regarding the invention. Specifically, this will include the information contained within the patent. Under United States law, individuals and companies can obtain a patent for a wide range of different inventions — from physical objects and industrial machines to software code and business processes. Patent infringement occurs when the exclusive rights granted by an approved patent are violated by an unauthorized party. Patent infringement comes in many different forms, including: Direct infringement; Indirect infringement; Contributory infringement; and Induced infringement. If you believe that another party has infringed upon your protected patent, you must take swift action. With patent infringement claims, a company’s failure to take action to protect its rights can make it more difficult to get the other party to stop from using the patent and it can make it more difficult to recover financial damages.  How to Prove Patent Infringement In order to enforce a patent against a competitor, you must present a well-documented and compelling claim that proves that your patent rights have been violated. More specifically, plaintiffs in a patent infringement claim are required to prove the following three things: Ownership of a Valid Patent: As a starting point, a plaintiff in a patent infringement claim must be able to prove that they actually have a valid patent. Of course, this is not necessarily a difficult step. In many cases, ownership of a patent can easily be shown through a written assignment. That being said, there are some circumstances in which disputes arise over the validity of patent ownership.  An Act of Infringement Occurred: The next step is to prove that the defendant engaged in an act of infringement. One of the keys to stopping patent infringement is to identify the defendant that infringed upon the patent. This can be more challenging than it might initially seem. When multiple entities collaborate to make a good or service, there may be some confusion over which specific firm was responsible for the infringement. Incorporation of All Distinguishing Features: Finally, plaintiffs should know that it is not sufficient to broadly claim that patent infringement has occurred. Quite the contrary, plaintiffs in patent infringement claims must be able to present a detailed and comprehensive analysis that clearly explains precisely why the defendant’s product or service violates the patent. All of the distinguishing features that are listed in the patent registration should be addressed. Proving patent infringement can be a complicated and highly technical process. If you have any questions or concerns about patent infringement — whether your company is considering filing a patent infringement lawsuit or your firm is preparing to defend an infringement action — it is imperative that you contact an experienced Orlando intellectual property lawyer. An attorney will be able to review your case and take action to protect your rights and interests. Discuss Your Case to Our Orlando, FL Patent Infringement Lawyers Today At BrewerLong, our Florida intellectual property attorneys have the skills and experience needed to handle the full range of patent infringement claims. If you are considering filing a patent infringement claim or if you are facing litigation over alleged patent infringement, we are here to help. To set up a free, strictly confidential introductory phone call with our IP lawyers, please do not hesitate to contact us right away.

Just because an image is on Google doesn’t mean you can use it on your website or in other marketing materials You need images for your website and other projects, such as brochures, reports, presentations, social media and so on. But original and even stock photography can be expensive. If you’re tempted to just download what you need from the internet without paying for it, don’t. Here’s why: Just because it’s on the internet doesn’t mean it’s free for anyone to use. The creators of the images own the copyright and control the use. While many creators put their work out in the public domain because they want it shared as much as possible, others want to be paid or at least want to control where their work appears. You could be sued. The copyright owner could be entitled to recover their own damages as well as any profits you may have earned from using the image—and that’s not all. If the owner simply doesn’t like the way the image was used and feels your use diminished the value of it, they can seek statutory damages in amounts ranging from $750 to $30,000—even if they didn’t suffer any monetary loss from your use or you made no profit from it. If the court finds your infringement was willful, it can increase the statutory damage award to $150,000 and you could be liable for attorney’s fees for both yourself and the copyright owner. (See 17 U.S. Code §504) You may have to remove the image from wherever you have used it. It can be time-consuming and expensive to remove the image from your website, social media accounts and printed materials and replace it with something you have the right to use. If you don’t manage all the locations where you used an image, you might not be able to recover them all, putting you further at risk of liability to the owner. Even if you know where you used it, you don’t know who else may have copied it from those sources and used it. What’s likely to happen if you’re using copyrighted images you didn’t pay for? It can range from nothing (if the copyright owner either doesn’t find out or chooses to not take action) to costing you so much in time and money that your company is at risk. The most likely scenario is that you’ll receive a cease and desist letter. Cease and Desist Typically, copyright infringement cases begin with a cease and desist letter which claims ownership of the copyrighted material and demands that the infringement stop and not restart. It may or may not also demand a payment of damages to settle the dispute right away, under threat of litigation if you do not comply. Often, if you comply with the cease and desist letter, that will be the end of the matter—but it’s not always that simple and it can get expensive. If you receive a cease and desist letter, you should have an attorney review it to see what the sender is demanding, determine if the demands are valid, and help you formulate a plan to comply. Costs of a Cease and Desist letter The cost of legal review—that is, just to have an attorney look at a cease and desist letter—can run $250-$500, which is significantly more than you would likely pay to purchase images from a reputable source in the first place. The cost of compliance with the cease and desist letter will depend on the owner’s demands. If you just have to remove a single image from your website, the cost could be minimal. If you’ve used multiple images and/or used them in multiple places, the cost could be substantial. In addition to the labor involved, you may have to destroy and replace supplies of brochures, books or even products if they contain infringing content. It’s possible you won’t be able to fully comply with the demands of the cease and desist letter. For example, if you’ve used a copyrighted image as part of a social media post, it could get shared far beyond your ability to retrieve and replace. In that scenario, you will likely have additional legal costs and the potential for damages. Note: Though this article focuses on images, the information also applies to written content, audio files, videos and other intellectual property. How to Protect Yourself from Copyright Infringement Claims The two primary ways to protect yourself from copyright infringement claims are to either create your own images or purchase images from a reputable source. When you purchase the rights to use someone’s intellectual property, you are buying a license that outlines what you can and can’t do with the material. Before you purchase images, understand the terms of service (TOS) of the seller’s website as well as the license details. These documents are often full of legalese and difficult to read, but it’s essential that you do this in case you ever need to mount a defense against an infringement claim. There are places where you can download images for free. Some are reputable (such as the Library of Congress), some are not. But free doesn’t mean unrestricted. As with purchasing images, read the terms of service and any restrictions on use that the copyright holder may have stipulated. Another issue to be aware of is that some free image sites do not vet their own image sources. People have uploaded images they don’t own to those sites. If you use one of those images, you could be held responsible, even though you were acting in good faith. Keep Track of Your Licenses Set up a system to keep track of the licenses you have purchased. You can usually do this with a simple spreadsheet. You can also include the license information in the metadata of the image file. The details you want to retain include the image itself; where it was purchased; how much was paid; and license details. You should also retain any…