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How Do I Find Out if My Idea Is Already Trademarked?

April 7, 2023 by Katie Charleston Law, PC

What Research Should You Do Before Using a a Business Idea?

posted by: Katie Charleston Law, P.C.

Your business ideas are important assets. Whether you’ve come up with a new process or have an idea for a logo or business tagline that will resonate with consumers, protecting your intellectual property is critical for supporting the future success of your business. One way you can do this is with trademarks.

However, before you can register a trademark, you have to find out if someone else is already using it and if their use prohibits yours. Failing to do your research on trademarks and other intellectual property rights can land you in unwanted business litigation. For example, if you simply start using a logo without doing your homework, you might unknowingly infringe upon someone else’s trademark and end up dealing with a lawsuit.

Trademarks can be powerful, but they aren’t the only type of protection you can leverage for business ideas. Understanding which type of intellectual property right protection is best in your case and how to check for existing trademarks and patents can help you avoid these issues.

Know What Type of Protection Is Right

Start by understanding what type of protection may be best. Three common types of protection you can seek for intellectual property include patents, trademarks, and copyrights.

Trademarks protect a design, phrase, word, or combination of all three elements. Registering a trademark keeps someone else from registering a trademark that is the same or too similar and limits how other people can use the mark. Trademarks are appropriate when the mark in question distinguishes your brand, goods, or services from others. Examples of trademarks include McDonald’s golden arches, the multi-colored Google logo, and the red-and-white bulls-eye of Target.
Patents protect specific types of inventions. A patent keeps others from copying your design or product and selling their version, potentially diluting the value of your product. To be approved for a patent, an invention must be a unique and new design or a substantial and unique improvement on a previous concept. Thomas Edison patented the electric lightbulb, for example, and Apple patented the original iPhone.
Copyright protects the ownership rights to created works like novels, short stories, fine art, photographs, films, music and software code. The Harry Potter books, the song “Africa” by Toto, and the Jurassic Park movies are some examples of created works that have copyright protection.

Understand Whether Someone Beat You to It

Once you know which type of protection is the right choice for your business idea, you’ll need to check to ensure someone else isn’t already using it. If someone starts using a logo concept before you do and can prove it, they might be able to stop you from trademarking it. If someone has already trademarked it, you may not be able to use it.

Here are some tips for finding out whether someone has beat you to the punch:

Check with the United States Patient and Trademark Office. You can search the USPTO trademark database to find out if anyone is using a mark that’s too similar to the one you want to use. You can do the same thing with the USPTO patent database, if applicable.
Conduct an online search. While it won’t turn up official results, a Google search can be helpful in understanding whether anyone else is using your idea and where and how they are using it.
Hire a professional. The USPTO trademark database is not especially user-friendly, and it can be difficult to ensure you conduct a holistic search. Working with an experienced professional can provide peace of mind that you have done everything you can to ensure a trademark or business idea is available before you take steps to register and use it.

Limitations on Trademark Protection

In most cases, someone can’t register broad trademarks on basic concepts such as words or colors. People certainly can’t just buy up trademarks to keep them from others or position themselves for selling them in the future, as one might do with domain names.

To successfully register a trademark, someone has to indicate how it’s related to a brand or goods and services. For example, Target doesn’t have the right to tell all people they can’t use a red bulls-eye. Archery companies still put red bulls-eyes on targets and other products, for example. That’s because Target’s trademark is limited to use associated with a retail store. No one is going to confuse an archery target as being the retailer.

So, even if you find that someone is using a mark similar to yours, you may be able to register it anyway. If you are using the mark in a completely different manner or industry and there’s little to no chance the marks could become confused in consumer minds, you may not have to worry that someone beat you to it.

Work With a Business Law Team to Protect Your Business Ideas

As you can see, there isn’t always a black-and-white answer to questions and issues involving trademarks and other intellectual property rights. Working with an experienced legal team from the beginning can help you trademark ideas successfully, avoid litigation and other costly issues, and protect your business ideas

Registering your trademark isn’t always as simple as it sounds. Reach out to Katie Charleston Law, PC, for experienced legal help in protecting your intellectual property rights by calling 317-663-9190.

Copyright Infringement in the Entertainment Industry: What You Need to Know.

April 5, 2023 by Katie Charleston Law, PC

Copyright infringement has been a persistent issue in the entertainment industry for decades. With the rise of digital technology, piracy has become more prevalent and easier to commit, resulting in significant financial losses for artists, producers, and studios. In this blog, we will explore the impact of copyright infringement on the entertainment industry and discuss ways to combat this issue.

Copyright infringement occurs when someone uses a copyrighted work without permission from the owner or violates one of the exclusive rights granted to the copyright owner. In the entertainment industry, this often takes the form of unauthorized reproduction, distribution, or performance of a copyrighted work. This can include music, movies, TV shows, books, and other forms of creative content.

The impact of copyright infringement on the entertainment industry is significant. Piracy results in billions of dollars in lost revenue each year. It affects everyone in the industry, from artists and creators to producers and distributors. When a copyrighted work is pirated, the people involved in its creation and distribution lose out on potential income. This can make it difficult for them to continue producing high-quality content and can even lead to job losses.

One of the biggest challenges in combating copyright infringement is the ease with which it can be committed. With the rise of the internet, it has become incredibly easy to share and distribute copyrighted content without permission. Piracy websites, torrent sites, and peer-to-peer file sharing networks make it simple for anyone to download and distribute copyrighted works. This has made it challenging for authorities to track down and prosecute those who engage in copyright infringement.

To combat copyright infringement, the entertainment industry has taken several steps. One of the most effective measures has been to educate the public on the importance of respecting copyright laws. Many artists and producers have spoken out about the negative impact of piracy and encouraged fans to support their work by purchasing it legally. Additionally, many studios have implemented anti-piracy measures, such as digital rights management (DRM) technology, to make it more difficult for pirates to copy and distribute copyrighted content.

Another effective approach has been to work with law enforcement agencies to track down and prosecute those who engage in copyright infringement. This has involved cooperation between the entertainment industry and law enforcement to identify and shut down piracy websites, arrest and prosecute individuals who engage in piracy, and raise awareness of the issue. This approach has resulted in many high-profile cases, including the shutdown of the file-sharing website Megaupload and the prosecution of its founder, Kim Dotcom.

To protect your intellectual property in the entertainment industry you should work with an experienced attorney. Intellectual property law is complex, and it can be challenging to navigate on your own. An attorney can provide you with the guidance and support you need to protect your creative works and ensure that you receive fair compensation for your efforts.

An attorney can help you register your copyrights, trademarks, and patents to establish legal ownership of your intellectual property. They can also assist you in drafting contracts and licensing agreements that protect your rights and ensure that you receive appropriate compensation for your work.

If you suspect that someone has infringed upon your intellectual property, an attorney can help you take legal action. They can send cease and desist letters, file lawsuits, and represent you in court. They can also help you negotiate settlements to resolve disputes without going to court.

When selecting an attorney to represent you, it is essential to find someone with experience in intellectual property law and the entertainment industry. Look for an attorney who has worked with clients in your industry and has a track record of successfully protecting their intellectual property rights.

Working with an attorney can be a valuable investment in protecting your intellectual property in the entertainment industry. They can help you navigate complex intellectual property laws, register your creative works, draft contracts and licensing agreements, and take legal action against those who infringe upon your rights. By partnering with an experienced attorney, you can ensure that your hard work and creativity are protected and that you receive fair compensation for your efforts.

In conclusion, copyright infringement remains a significant challenge for the entertainment industry. Piracy has resulted in billions of dollars in lost revenue, making it difficult for artists, producers, and studios to continue creating high-quality content. However, by educating the public, implementing anti-piracy measures, and working with law enforcement, the industry can take steps to combat this issue. It is essential for everyone to recognize the importance of respecting copyright laws and to support artists by purchasing their work legally. Only by working together can we ensure that the entertainment industry continues to thrive and produce the content we all enjoy.

How Do Special Needs Trusts Work in Indiana?

March 11, 2023 by admin admin

What Is a Special Needs Trust in Indiana and How Do They Work?

Planning to leave money and other assets for loved ones via trusts allows you to protect those assets from a variety of outside forces, including creditors. Special needs trusts provide a different type of protection for your loved ones: They ensure your loved one with a disability doesn’t own the assets in question.

This is important because ownership of those assets could impact your loved one’s ability to access critical government benefits, including Social Security Disability payments or Medicaid. Find out more about special needs trusts below and how to include them in your estate planning as necessary.

Why Should You Set Up a Special Needs Trust?

The purpose of a special needs trust is to provide assets and support for a loved one with a disability without impacting their access to government and other benefits.

For example, your adult child with a disability may have access to Medicaid, SSDI payments, food and housing support, and other benefits. Most of these benefits programs have two basic requirements: the person must have a recognized disability under the program and they must meet income and asset thresholds to qualify financially for the benefits.

If you give your loved one money or assets or leave assets to them in your will, they may no longer meet the financial thresholds for such programs. That means they lose their benefits. The assets you left them now have to be used to pay for things the programs previously paid for until the person runs out of money and can potentially qualify for those programs again—a process that can be cumbersome and stressful. In some cases, they may lose access to benefits that can’t be easily replaced simply by purchasing services.

However, if you leave assets to a loved one in a trust, they don’t own the assets—the trust does. Your loved one can benefit from the assets held in the trust without losing access to their government benefits. For example, assets in the trust can be used to pay for vision, dental, and medical care that isn’t covered by other benefits programs. It could also provide money to help cover the cost of companions and other necessary expenses.

What Are Some Factors to Consider When Setting Up a Special Needs Trust?

How to best set up a trust and what options are right for you depend on a variety of factors. Some of the things that you should consider when setting up a special needs trust include:

How you want to fund the trust. Are you funding it with a one-time transfer of assets? Do you want to be able to transfer other assets into the trust in the future or offer other people in the family a way to make donations into the trust?
What assets you want in the trust. You can put cash or other types of liquid assets in a trust, but you can also put real estate, investments, and even insurance policies in a trust.
Who you want to manage the trust. During your lifetime, you may choose to manage the trust yourself. However, you’ll want to appoint someone you can trust to manage the assets when you’re no longer able to. You can choose a willing and trustworthy loved one or work with an attorney or other professional who can administer the trust for a fee.
The impact of Medicaid, if applicable. In some cases, the trust may need to reimburse Medicaid after the beneficiary passes away. Understanding the complete picture of your loved one’s benefits and how they interact with financial assets can help you plan properly for the future.
Whether you also want to donate to charity. The Special Needs Trust Improvement Act in 2022 created more flexible paths for individuals to fund special needs trusts with retirement benefits while also donating some of those benefits to charity if desired.

Third-Party vs. First-Party Special Needs Trusts

You’ll also want to consider whether you’re setting up a third-party or first-party special needs trust. A third-party special needs trust is one that you fund for the benefit of someone else. These are typically created by individuals for their loved ones with disabilities.

A first-party special needs trust is funded with the assets belonging to the person who benefits from the trust. This option is typically used when someone who did not previously have a qualifying disability ends up with an illness or injury that leads to one. For example, an adult who is involved in a car accident that leaves them with brain damage may need a special needs trust. Their own assets can be used to create it.

How Can an Estate Planning Attorney Help With Special Needs Trusts in Indiana?

Trusts are complex legal tools, so having an experienced attorney help you plan any type of trust can be important. An estate planning attorney can help you understand the future financial ramifications associated with a special needs trust so you can make appropriate decisions about how to use your assets to protect and care for a loved one now and when you’re no longer able to physically.

For more information about how we can help with a special needs trust—or with protecting your assets and legacy for the future—make an appointment with Katie Charleston Law, PC, today.

What Is and Is Not Covered by Copyright?

February 3, 2023 by Katie Charleston Law, PC

Copyright refers to a type of intellectual property ownership that protects someone’s rights to and interest in an original work. Whoever has the copyright to a work has the legal right to reproduce (copy) the work and distribute it. The copyright holder is the only one with this right; anyone else that wants to copy the work must have permission from the copyright holder.

Copyright law helps protect creators. For example, if someone writes a novel, they can publish it and expect people to pay for copies to read it. Copyright keeps people from legally copying the novel to pass out to others or claiming the novel as their own.

However, copyright applies to much more than creative writing. Learn below what copyright does and doesn’t cover and how a business lawyer can help you protect your interests.

What Is Covered by Copyright Law?

Literary works, such as novels, short stories, and poems
Dramatic works, such as plays or movie/TV scripts
Musical works, including song lyrics, compositions, and choreography
Audiovisual works, including films as separate works from the scripts they are based on
Architectural drawings and works
Visual works of art, including paintings, sculptures, sketches, or graphic designs

Federal copyright law is fairly loose on the interpretation of what falls under these types of categories. Original maps might be copyrighted as visual works, and the same is true for original technical drawings related to a product. Even computer programs may be copyrighted under the right circumstances.

What Can’t Be Protected by Copyright?

However, copyright is not without limits, and there are plenty of concepts and even works that aren’t protected by these laws.

Anything that is not captured in a “fixed tangible form” cannot be copyrighted. If you make up choreography for a dance and teach it to others but never record it via film or notate it in writing, the idea of the choreography can’t be copyrighted. Ideas, in fact, can’t be copyrighted at all.

You also can’t copyright processes, systems, discoveries, or principles. Short phrases, slogans, titles, and symbolic elements such as logos can’t be copyrighted. That doesn’t mean many of these things can’t be protected; many are covered under trademark law, for example.

Copyright also demands some level of originality of the work in question. A list of ingredients for a cake can’t be copyrighted. However, a work containing original recipes for cake might be eligible for copyright.

What Rights Do You Have When You Own a Copyright?

When you own the copyright to a work, you have the exclusive right to copy and distribute it. You also have the right to give people permission to copy and distribute the work. For example, an author contracts with publishers and others to create copies of and distribute a novel. Textbook publishers might provide written permission in their books for teachers to copy certain elements for use in the classroom.

You also have the right to:

Display the work in public or give someone else permission to
Perform the work or allow others to do so
Create derivative work based on the original work and profit from that work if desired

Note that copyright can be complex and include some seeming gray areas. For example, fanfiction is writing that creates a derivative work based on original characters or universes. However, common legal thought on fanfiction is that it falls under fair use as long as the fanfiction meets the definition of a transformative work and the fanfiction author is not attempting to profit from the work. Transformative work is that which adds enough new content or meaning to create new or unique value separate from the original work.

As you can see, when and how copyright comes into play and whether you can file a claim for copyright infringement are complex issues. If you believe your rights under federal copyright law have been infringed, consulting with a business litigation attorney with experience in copyright cases can help you understand how to move forward.

Do You Have to Register for Copyright?

You can formally register an applicable work with the U.S. Copyright Office. This involves completing the necessary forms and submitting those forms along with a copy of the work to be reviewed. The Copyright Office ultimately decides whether it will grant or refuse the copyright.

You don’t need a formal copyright registration to own the copyright to a work. Technically, you automatically hold the copyright as soon as you create an original work. However, you can’t sue someone for copyright infringement without first registering the copyright.

How Long Does Copyright Last?

Works authored by a single individual have a copyright that lasts that person’s entire lifetime plus 70 years
Works authored by multiple individuals have a copyright that lasts for 70 years after the final author passes away
Works that are for hire or published anonymously have a copyright that lasts 120 years from the date they were created or 95 years from the date they were first published, whichever is shorter

Note that the use of “authorship” above does not limit these rules to written works of text such as novels. “Authorship” is used as a blanket term to refer to the creator or originator of works.

If you are dealing with copyright infringement and want legal help protecting your rights, contact Katie Charleston Law, PC, today to find out how we can help.

Does Power of Attorney Automatically Go to My Spouse?

January 10, 2023 by admin admin

The covenant of marriage comes with a lot of rights. There are literally thousands of rights protected by laws on federal, state and even local levels that deal with marriage and spouses. However, none of those laws make your spouse an automatic power of attorney, and if you do create a power of attorney, that relationship can supersede your spouse in many cases.

Discover what a power of attorney is below, why you might want one, and how an estate planning lawyer can help you create POA forms and other important estate documents. One question that a lot of people ask is, “do spouses automatically have power of attorney?”

What Is a Power of Attorney?

Power of attorney is a legal power you designate to another person. You do this via a power of attorney form that spells out who your designee (or agent) is and what powers you are giving to them. A POA form can also provide limitations on how and when those powers can be used or go into effect.

Ultimately, when you create a power of attorney, the person you name as agent can act legally on your behalf in whatever way you allowed in the POA estate planning documents.

When Might You Want a Power of Attorney?

Power of attorney can be specific and limited or broad. For example, you might create a power of attorney that allows someone to make any financial decisions on your behalf. They would, in theory, be able to pay your bills, negotiate financial agreements in your name, and manage your investments and bank accounts.

On the other hand, you can make a power of attorney incredibly specific so that it only works in a certain situation. As an example, a husband and wife were in the process of purchasing a home. The wife was called away for an emergency business trip during the time of the closing. She gave the husband power of attorney for the sole purpose of completing the closing.

He signed all paperwork at the closing for himself and on behalf of his wife, as he was her legal power of attorney and agent for that purpose. The POA was limited, though; the husband’s power of attorney would only work on that one occasion and didn’t exist after the fact.

Some reasons you might want to set up a power of attorney include:

One spouse or parent is going out of the country or might be otherwise unavailable and you want to ensure the other spouse has the authority to handle a range of financial, health, or legal matters
You want to protect your wishes for end-of-life, medical decisions, or emergency healthcare even if you are incapacitated and unable to voice them, and you want to ensure someone you trust is able to make those decisions for you
You want to ensure your financial matters and assets are handled by a person you trust if you can’t handle them yourself
You want to hand off legal power to someone in a very specific case, such as in the example of the couple buying a home above

Who Should You Choose as a Power of Attorney?

When choosing the person to act as your agent under a power of attorney, it’s important to pick someone who is willing, able, and likely to carry out your wishes. Many people do default to their spouse, as they trust their significant other as much or more than anyone else.

A long-term spouse also has the benefit of knowing you well and understanding the spirit of your wishes. This can make them more able to act in keeping with your wishes even if decisions arise for which you didn’t document specific instructions.

However, you don’t have to choose your spouse, and your significant other may not be the right choice in all cases. If you are both aging and you want to create a power of attorney to handle matters in case you are incapacitated, for example, an adult child or younger loved one or other family members might be a better choice.

Certainly if you and your spouse are having marital difficulties or you don’t believe they are knowledgeable or capable in a certain area, you might want to pick another durable power of attorney.

Protecting Your Wishes With an Estate Planning Attorney

When you give someone power of attorney, their authority in those specific matters may outstrip your spouse’s. This can be a way to ensure your wishes are carried out or your interests are upheld if you believe they would conflict with what your spouse might do.

For example, perhaps you don’t want certain life-saving measures if you are incapacitated. However, you believe that your spouse, who you know loves you, would be emotionally unable to make such decisions for you. In this case, you could appoint a different person as your medical power of attorney so that they can make the decision your spouse would be unable to.

As you can see, these are weighty matters that require a lot of thought. Being proactive with estate planning ensures you have the time and ability to put your thoughts into action. Consider working with an estate planning attorney to create the appropriate POA forms as well as complete other important tasks, such as making a will.

By taking the time to put your wishes in writing now, you can protect your interests and remove some burden from your loved ones in the future. Contact Katie Charlestone Law, P.C., today to find out how to get started on your own estate plans.

Protect Your Trademark Like Jack Daniels: Jack Daniels Case Headed to the United States Supreme Court

December 16, 2022 by Katie Charleston Law, PC

The Supreme Court of the United States (SCOTUS) is set to hear a trademark infringement case between Jack Daniels and VIP Products, two well-known companies. The case revolves around VIP Products’ dog toy that resembles the Jack Daniels Old No. 7 Black Label Tennessee Whiskey bottle. Jack Daniels is accusing VIP Products of trademark infringement and, after sending a cease and desist letter, and an appeal has brought the case to the Supreme Court.

At stake in this case is whether or not companies have the right to use images or trademarks owned by other entities without their permission under a doctrine of fair use. If Jack Daniels wins, it will establish a precedent that could potentially limit companies’ ability to use famous logos case-by-case in order to avoid infringing on another company’s trademark.

The case is set to be heard by the Supreme Court in the coming weeks and could have far reaching implications for how companies use trademarks for their own benefit. Jack Daniel’s has argued that VIP Products should not be allowed to profit off of its iconic label without its consent, and that this particular use tarnishes its brand and will confuse consumers; while VIP Products has argued that it should be allowed to use the logo under the fair use doctrine. Ultimately, the Supreme Court will decide which opinion is correct and set precedent for future cases involving trademark infringement.

Specifically, the U.S. Supreme Court has agreed, pursuant to its docket, to decide the following questions:

“I. Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims”; and

“2. Whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act.”

Though there have been similar cases in past, this case is especially important due to the high profile nature of Jack Daniels’ trademark. It will be interesting to see how the Supreme Court rules on this case and whether it sets a precedent that could potentially limit companies’ ability to use famous logos without permission. Regardless of the outcome, it is sure to have an impact on how trademarks are used in the future.

The SCOTUS hearing of Jack Daniels v. VIP Products trademark case could have consequences for the use of trademarks in the future, so it is essential that companies understand their rights and obligations when it comes to using them. Though the outcome is still unknown, it will be interesting to see what the Supreme Court decides on this case and its implications for similar cases in the years to come.

Jack Daniels is one of the most iconic American whiskey brands and has been a target of trademark infringement cases since its inception in 1866. Over the years, there have been numerous attempts to use its distinctive logo, or “Old No. 7,” for unauthorized commercial purposes.

In 1906, Jack Daniels was involved in one of its earliest trademark infringement cases when it sued a Tennessee-based company for using its trademarked label on bottles of beer and cider. Jack Daniels won the case, proving that their trademark was unique enough to be protected under the law.

In more recent times, other companies have attempted to use the Jack Daniels logo or name in order to market their own products. In 2013, Jack Daniels sued a Chinese company for producing counterfeit whiskey bottles bearing its trademark. The case was ultimately settled out of court and the company had to cease using the Old No. 7 logo.

In 2016, Jack Daniels’ parent company Brown-Foreman filed lawsuits against several companies in New Jersey and North Carolina for producing T-shirts with the Jack Daniels logo and name. The cases were settled out of court, but Brown-Foreman was able to protect its trademark from being used without authorization.

Jack Daniels has also been involved in other types of legal disputes, including a lawsuit against a website that allowed customers to make their own custom whiskey bottles using the Old No. 7 logo. After a lengthy court battle, Jack Daniels was successful in getting the website to cease operations.

Jack Daniels has also been involved in more recent trademark disputes. In 2017, Jack Daniels sued a company for selling whiskey-flavored lip balm with the Old No. 7 logo on it. The case was settled out of court and the company had to cease production and distribution of the balm. In 2019, Jack Daniels sued an online retailer for selling shot glasses with the Old No. 7 logo on them. Again, the case was settled out of court and the company had to stop selling the shot glasses.

Jack Daniels has proven time and time again that it is serious about protecting its trademark from infringement, and it will continue to do so in the years to come. The Old No. 7 logo is one of the most recognizable trademarks in the world, and Jack Daniels will continue to fight for its protection.

The company has also been proactive in protecting its trademark from being used without permission by other companies. It works with law enforcement agencies around the world to prosecute counterfeiters and has also created an internal task force to monitor potential trademark infringement cases.

It is this dedication to protecting its trademark that has made Jack Daniels one of the most iconic brands in the world today. The company’s efforts have paid off, as it continues to be a successful business even after more than 150 years in operation.

Jack Daniels’ legacy of protecting its trademark has created an example for other businesses to follow. Companies should understand the value of their trademarks and take steps to protect them from infringement. By doing this, they can ensure that their trademarks remain unique and recognizable to consumers. Jack Daniels sets the standard when it comes to protecting its trademarks, and other companies should strive to be as diligent in their efforts.

Ultimately, Jack Daniels’ commitment to protecting its trademark has been a major factor in why the company is so successful today. With its trademark protected from infringement, Jack Daniels can continue to build upon its legacy as one of the most iconic brands in the world.