Saturday, November 25, 2017

Sample DMCA Take Down Letter - | by Gene Quinn - Patents & Patent Law

This has been written by Attny Gene Quinn: Sample DMCA Take Down Letter - | Patents & Patent Law: "You must send this notice in writing to the webhosting company, which you can learn through a WHOIS lookup. You must provide at a minimum:

  1. A physical or electronic signature (i.e., /s/NAME) of a person authorized to act on behalf of the owner of the copyright that is allegedly infringed.
  2. Identification of the copyrighted work claimed to have been infringed.
  3. Identification of the material that is claimed to be infringing and information reasonably sufficient to permit the service provider to locate the material.
  4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner.
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the copyright that is allegedly infringed.
What follows is a sample letter modeled off the one I sent earlier today, which you may use if you so choose.  If you use this form you agree to the terms and conditions at the bottom of this page.
My name is INSERT NAME and I am the INSERT TITLE of INSERT COMPANY NAME.  A website that your company hosts (according to WHOIS information) is infringing on at least one copyright owned by my company.
An article was copied onto your servers without permission. The original ARTICLE/PHOTO, to which we own the exclusive copyrights, can be found at:
The unauthorized and infringing copy can be found at:
This letter is official notification under Section 512(c) of the Digital Millennium Copyright Act (”DMCA”), and I seek the removal of the aforementioned infringing material from your servers. I request that you immediately notify the infringer of this notice and inform them of their duty to remove the infringing material immediately, and notify them to cease any further posting of infringing material to your server in the future.
Please also be advised that law requires you, as a service provider, to remove or disable access to the infringing materials upon receiving this notice. Under US law a service provider, such as yourself, enjoys immunity from a copyright lawsuit provided that you act with deliberate speed to investigate and rectify ongoing copyright infringement. If service providers do not investigate and remove or disable the infringing material this immunity is lost. Therefore, in order for you to remain immune from a copyright infringement action you will need to investigate and ultimately remove or otherwise disable the infringing material from your servers with all due speed should the direct infringer, your client, not comply immediately.
I am providing this notice in good faith and with the reasonable belief that rights my company owns are being infringed. Under penalty of perjury I certify that the information contained in the notification is both true and accurate, and I have the authority to act on behalf of the owner of the copyright(s) involved.
Should you wish to discuss this with me please contact me directly.
Thank you.
City, State Zip
TERMS & CONDITIONS OF USE: While forms are commonly used and available elsewhere around the Internet it is important to understand the limitations provided by forms. A form, by its very nature, is previously written, usually to address a typical situation. Unfortunately, in law there are few typical situations. While this form will be useful for some, the use of a form should not be viewed as a replacement for competent legal advise adapted to your particular situation. IPWatchdog, Inc. and Gene Quinn personally accept no liability if you do use this or a modified version of this Agreement. Use of this form does not create an attorney-client relationship.

tate vs. Federal Trademarks, Which is Right for Your Business?

By Gene Quinn 
November 25, 2017
Trademarks are not only for those companies that are trying to dominate the world.  Trademarks can be a significant asset for any business, even a small business. But what type of trademark do you want to obtain, a federal trademark registration or a state trademark registration?
Filing a trademark application is an excellent step to take to protect your name, slogan or logo. It is, however, important to understand that not all trademarks are created equal. While every state allows you to obtain a trademark registration, a federal trademark registration provides the greatest rights. This is because when you obtain a United States federal trademark your rights will exist throughout the country, and not just in one particular geographic locality.  With a state trademark you obtain rights to your immediate geographical area only, not the entire state, which is an important consideration.
For example, if you get a trademark in California and use the mark in commerce only in Newport Beach, California, and subsequently another party files for a federal registration on the same mark, you are prevented from using your mark outside of Newport Beach! Moreover, a state registration does not even entitle you to rights throughout the entire state. Notice in the previous example that I said that if someone were to obtain a federal registration on the same mark for which you had a California state registration you would only be able to use the mark in your geographic area, not throughout the state. So if you use the mark in commerce in Newport Beach, and someone acquires a federal registration, they can use the mark in San Diego, Los Angeles, San Francisco and everywhere in between. You would be limited to using your trademark in Newport Beach because a state trademark is trumped by federal trademarks.
This does not, however, mean that state trademarks are useless. It does mean that you should not only obtain a state trademark.
Over the years I have always recommended a federal trademark registration and cautioned against state trademark registrations. Recently my view has become more nuanced. While a federal trademark registration is, in my opinion, an absolute prerequisite because it locks in your rights nationwide, state trademarks are cheaper, easier to obtain and should not be avoided. In fact, state trademarks can be quite useful in certain circumstances.
State trademarks do not give protection for the entire state of registration and they do not allow you to use the familiar trademark symbol (R in a circle). With a state trademark registration you get limited protection only where you are actually using the trademark (as already explained), but if you have a product that could be counterfeited you really should seek a state trademark registration. There are advantages to having state registrations when fighting counterfeiters, which is a growing concern for all brand owners. States have concurrent jurisdiction with the federal government in trademark disputes, and while it might be very difficult to get federal government assistance in a fight against counterfeiters it might be much easier to get state and local authorities to help if you have a state trademark. The laws will vary from state to state, so if you do have a product that may be counterfeited speaking with a knowledgeable trademark professional about both federal and state trademarks is well worth your while.
Trademarks serve multiple purposes, but there are two primary purposes. First, trademarks identify and distinguish either the goods or services of one manufacturer or seller from goods or services manufactured or sold by others. Second, trademarks indicate the source of the goods or services. In short, a trademark is a brand name that you will use in commerce.
If you elect to move forward with obtaining a federal trademark registration, which is strongly recommended, the first step to acquiring federal trademark rights requires use in commerce. Namely, you either (1) start using the slogan, name or logo in commerce (i.e., some kind of commercial use) and then subsequently file a trademark application; or (2) file an intent to use application, which will lock in your filing date but does not require immediate use. The intent to use application is essentially a reservation of the mark for a limited period of time. You will eventually have to start using the trademark in commerce, but if you are not yet using the mark in commerce this is the way to go. Additionally, the use in commerce will need to be interstate commerce (i.e., commerce across state lines), but that is not typically a problem today given the way business is conducted for virtually all businesses – between buying, selling and the Internet business is increasingly global.
With respect to actually filing a trademark application there are essentially two options. First, you can do it yourself. Second, you can hire an attorney. Filing a trademark application is not as easy as it might seem due to the fact that it can be difficult, if not impossible, to amend an application if you make a mistake at the time of filing. Indeed, in many situations when filing mistakes are made the cheapest solution will be to simply file a second application properly, but that creates a delay in acquiring rights. 

That being the case, and the relatively inexpensive cost of hiring an attorney to do it right from the start, I generally recommend hiring an attorney.
TO BE CONTINUED… Up next is discussion of the importance of contemplating your brand as a single identity and picking a name suitable for social media platforms."

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