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Trademark Law

youtube-arrow What is a Trademark?

A trademark is any word, slogan, symbol, or design, or combination of those; which does two things. First, it has to identify the source of those goods and services in the marketplace. It also has to distinguish those goods from other goods and services in the marketplace. It can also be a sound, a color, or a smell.


youtube-arrow What is the difference between a trademark and a service mark?

A trademark identifies the source of goods. A service mark identifies the source of services.  We usually in the industry will use those terms interchangeably, trademark or service mark. But the only difference is, it’s called a trademark if it’s identifying the source of products or goods, and it’s called a service mark if it’s identifying the source of services.


youtube-arrow What is trademark infringement?

Trademark infringement is the unauthorized use of a trademark on competing goods and services in the marketplace. And this unauthorized use is likely to cause confusion amongst consumers in the marketplace and is actionable under the law. So if you think that your trademark or your business name is being used in such a way that is causing confusion amongst consumers seeking your product, you should contact an attorney.


youtube-arrowWhat is trademark dilution?

Trademark dilution is the weakening of the ability of a famous mark to identify and distinguish goods and services regardless of competition or confusion in the marketplace. Dilution is set to protect the goodwill associated with a mark. In order to make a claim for trademark dilution, the mark has to be a famous mark. In other words, it has to be widely known to the US consuming public. The mark has to be a household name. The dilution can occur in two ways: dilution by blurring, and dilution by tarnishment.


youtube-arrow What is the difference between a registered and unregistered trademark?

A registered trademark is one that has been registered with the US Patent and Trademark Office. An unregistered trademark is obviously one that has not. However, you don’t need to have a federal registration in order to obtain rights in a trademark. Rights in a trademark come from the use of that mark on goods and services in the marketplace or in commerce. However, federal registration provides you with certain legal presumptions and a broader rights. First off, you have the legal presumption that you have the exclusive right to use that mark in the entire United States with a federal registration. You also put the entire US public on notice that you are the owner of that mark. You also get to bring any legal action concerning your mark in US federal court. You also get to use the federal registration symbol which is the capital R with the little circle around it, so you have a lot more broader rights with a federal registration. The unregistered mark still has some common law trademark protections, however those rights are normally limited to a particular geographic area.

Internet Law

youtube-arrow What can I do about false and/or fictitious online posts?

If another person or company is publishing false or fictitious information about your company, you can take legal action.  First, you should identify the individual who has made these false posts about your business. And with today’s complex online world, identifying the individual or organization can be difficult, especially without digital savvy or legal expertise. However, if you think that someone is making false online posts about your business, you should contact an attorney. There are several options that we can try to correct this. You might want to make your own post responding to the post that you believe is false. Online forums such as Facebook have their own policies for how to request that false, defamatory or potentially infringing posts be taken down. Or, you can make an official response on your company’s website. In terms of creating a message and overall strategy to combat false posts, the process can be involved and lengthy. But if someone is making false and damaging posts about your company, you should contact an attorney.


youtube-arrow Can my competitors use my business name in their keyword advertising?

The answer is yes. Whether or not your business name is a registered trademark or not, your competitors can use your business name in their advertising. It has been held that the use of a registered trademark as a search engine keyword to advertise on the internet is not trademark infringement. However, the hallmark of trademark infringement is consumer confusion. So if you believe that your business name or your trademark is being used in advertising in such a way as to confuse consumers who are seeking your product, then you should contact an attorney to see if that use can be the basis for an action for trademark infringement.


youtube-arrow How does section 230 of the Communications Decency Act protect businesses?

The answer is yes. Whether or not your business name is a registered trademark or not, your competitors can use your business name in their advertising. It has been held that the use of a registered trademark as a search engine keyword to advertise on the internet is not trademark infringement. However, the hallmark of trademark infringement is consumer confusion. So if you believe that your business name or your trademark is being used in advertising in such a way as to confuse consumers who are seeking your product, then you should contact an attorney to see if that use can be the basis for an action for trademark infringement.


youtube-arrow What is a Data Breach?

A data breach incident occurs when there is unauthorized access to personally identifiable data that’s an electronic form. And this can be payment information such as credit card or debit card information, it can be name and date of birth information, address or contact information that is accessed. If you think your business has been involved in a data breach or if a data breach has occurred, then you need to contact an attorney, because there are certain requirements as far as notifications that need to be followed in the event of a data breach.


youtube-arrow What Steps Can You Take After A Data Breach?

The first thing you want to do after a data breach is contact an attorney, because in the state of Florida, there are certain statutes that govern what must be done once a data breach incident has occurred. The statutes are very specific, they cover how many people’s data may have been accessed. And then once you find that out, it also will tell you what type of notice needs to be sent, who needs to be notified as far as the government authorities, what the content of the notice must be, exactly what must be told, and it tells you when, how quickly you need to make that notification. And there are civil penalties for not doing this notice quickly or properly. So if you feel that a data breach has occurred in your business, first you want to contact an attorney to confirm that, and then you want them to guide you through all of the requirements as far as how they can properly respond, as far as the notice requirements under Florida law.


youtube-arrow What legal restrictions are there on the use of email in business?

If you use email for marketing in your business, you need to be compliant with the CAN-SPAM Act, or the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. That act places certain requirements on commercial email messages. It requires that the subject and the header lines cannot be misleading. It requires that a valid return email address must be visible and must be used in all emails. It requires that there must be a physical address and some opt out information included in the email. It also prohibits the sending of commercial emails if the recipient has already opted out or somehow informed that they don’t want to receive the email. It also prohibits the collection or the harvesting of emails without permission from online forms, or just in general from the internet. So if you’re doing any type of email marketing in your business, you need to be compliant with CAN-SPAM, so you need to contact an attorney to make sure that your email marketing is compliant with that.


youtube-arrow What Is Spamming?

Spamming is the sending of unsolicited commercial email messages. Unsolicited commercial email messages are known as spam, and the sending of those messages is prohibited by the CAN-SPAM Act of 2003, or the Controlling the Assault of Non-Solicited Pornography and Email Act. And what that Act does is prohibit deceptive subject and header lines from being sent and duping people into opening them. So there is no private right of action associated with CAN-SPAM or with spamming. However, the Act is a federal Act and it can be enforced by States’ Attorney Generals.


youtube-arrow What Is Phishing?

Phishing is an email scam in which an email user is duped into revealing personal, identifiable information, so that the scammer can illicitly use that information, either to conduct identity theft or access bank accounts that will ask for contact information, passwords, bank account information, etc. If you feel you’ve been the victim of a phishing email, you should contact an attorney to see how you can respond and protect yourself.  


youtube-arrow What is the Children’s Online Privacy Protection Act?

The Children’s Online Privacy Protection Act is a federal statute that prohibits the collection of personal information from children, via websites or online on the internet. And, with few exceptions, it prohibits the collection of any personal information from children without having verified parental consent.


youtube-arrow Is it illegal to upload music or movies onto the internet?

Uploading or downloading copyrighted works from the internet can be an infringement of the copyright owner’s exclusive rights of distribution and publication. The copyright owner has the exclusive right to distribute and to publish its works. In the case of a wilful infringement for profit, in other words, someone who made bootleg copies of the movie, or and is selling that online, or perhaps selling copies to a song online, and that’s a copyrighted song of someone else, the US attorney can actually open a criminal investigation into that. So uploading and downloading songs or movies to the internet, you can be held criminally liable for that. The best way to avoid that is to stay away from peer-to-peer networks such as Kazaa or BitTorrent, because most of the works that are being uploaded and downloaded on those types of forums are copyrighted. So, you want to make sure you stay away from those, and stick with the services that you pay for such as Apple services in the iStore or in the Play Store where you know you have the right to download and purchase those copyrighted works.

CONTACT US

JOHNSON MOSS LLC
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Orlando, FL 32817

(407) 273-7027
info@johnsonmosslaw.com

ABOUT US

Attorney Michele G. Moss is experienced in intellectual property and internet law. Her passion lies in helping people protect what they have worked hard to build or create from being misused or stolen by others. If you need legal assistance, please contact us.

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