As was discussed in our last post in our Intellectual Property 101 series, the holder of a copyright in a work is granted five exclusive rights in their work: the right to reproduce the work, the right to prepare derivative works based upon the work, the right to distribute the work, the right to perform the work, the right to display the work, and the right to perform the work. There is, however, one glaring exception to these rights: the doctrine of “fair use”.

Under the doctrine of “fair use”, a copyrighted work may be used without the permission of the rights holder so long as the use is considered “fair.” When considering whether such a use is “fair”, a court will consider the following four factors:  (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work.

It should be noted, however, that none of these factors are solely determinative on the issue of “fairness” and each use will be evaluated on a case-by-case basis.

Clearly the line between “fair use” and copyright infringement is not easily defined. If you’re concerned that your use of copyrighted material might not be authorized under the doctrine of “fair use”, speak with Wright Loyer today!

William Shakespeare once famously asked, “what’s in a name?” If the “name” in question is that of your brand, the answer is “everything” and selecting a strong trademark is absolutely essential to the success of your business. But how do you select a strong trademark? While there is no exact science to doing it, below are three simple ways to strengthening your trademark.

Be Distinctive

The best trademark is one which easily distinguishes your product from others. After all, why even spend the time and money branding your product if that brand isn’t going to help consumers distinguish your product from others in the marketplace. To this end, the more imaginative, creative, and fanciful your trademark is, the better. What is more, a distinctive trademark is almost certain to find a place on the U.S. Patent and Trademark Office’s Principal Register.

Avoid Surnames

Depending upon your reputation in the community, it might be that consumers are likely to choose your product over others for no other reason than you’re a “good guy”, you’re known for your commitment to quality, or another reason directly associated with the quality of your character. If so, it’s tempting to incorporate your surname into your trademark (e.g., “Smith’s Laundry”, “O’Neal’s Bakery”, “Jenkin’s Diner”). Doing so, however, almost certainly guarantees that your trademark will be refused registration by the U.S. Patent and Trademark Office as such marks can only be registered upon an affirmative showing of “secondary meaning.”

Leave Geography to Geographers

Letting consumers know the geographic source of your product might give them a quick sense of the overall quality of the product. An unsophisticated consumer looking for a “quality” wine, for example, might be quick to choose a French wine over a wine imported from another country less known for their viniculture. Including a geographical designation in your brand name, however, does little to strengthen the quality your trademark. In fact, a trademark which is “primarily geographically descriptive” cannot be registered with the U.S. Patent and Trademark Office absent a showing of “secondary meaning.” Making such a showing is onerous and, as such, should be avoided if possible.