Tuesday, October 31, 2006

We are Moving !!!!!!!

This week marks a big week for our firm. We have completely outgrown the office space we have been in for the past two years and are moving to new digs. Our new address is the following:

Leyendecker & Lemire, LLC
9137 East Mineral Circle
Suite 280
Centennial, CO 80112

We are also switching over to a new main number of (303) 768-0123, however the (303) 768-0650 number will still work as well. Kurt's, Jackies and my direct numbers will stay the same, as well as the fax number for the ime being. Our phone system will be in flux for a few days as we migrate over to our new provider so please bear with us, but we plan to be fully up and running by Friday, November 3rd.

Thanks for your patience and continued support.


50 Cent Copyright suit dismissed

Well, as an update to a post we had a little bit back - it appears that 50 Cent no longer has to defend claims of copyright infringement. As you may recall, 50 was sued by (Lil Joe Wein Music, a company owned by Luther Campbell's (of 2 live crew fame) former attorney and holder of rights to several of Campbell's songs. They claimed that 50's song "In Da Club" infringed on Campbell's "It's Your Birthday". The material in question is the line in 50's song "Go shorty, it's your birthday" as opposed to "Go Shelia, it’s your birthday".

Miami Federal District Court Judge Paul C. Huck, dismissed the claims against 50, stating that the phrase in question was "common, unoriginal, no copyrightable element of the plaintiff's song." Additionally, Judge Huck noted that absent the one phrase that the songs didn't share any other similarities and that the line in question only represented 11 seconds of a 3 minute song. As a matter of law, the judge ruled that no reasonable jury could conclude that the songs were confusingly similar.

Of course this could all be appealed so we will wait and see what the folks at Lil' Joe Wein decide to do.

Monday, October 23, 2006

Victoria's Revenge

First I have to say sorry fo not posting in so long - It's been a crazy few months around here.

Anyway we had a major change in the law about two weeks ago that I felt we needed to comment on. On October 6, 2006 the Trademark Dilution Revision Act of 2006 was signed into law. The law was created in response to Moseley v. Victoria Secret, in which the Supreme Court among other things, required a showing of actual dilution in order for famous marks to be able to protected from bluring of their distinctive character or tarnishment of the mark. The act now only requires the holder of a famous mark to show that a defendents actions caused a liklihood of dilution by bluring or tarnishment regardless of the presence or absence of actual confusion.

So what does this all mean? Blurring occurs between a mark, company name or trade name and and a famous mark when the use of the mark, trade name or company name impairs the distinctiveness of the famous mark. Essentially, it impairs the source identification function of a trademark. If there is such widespread use of similar marks, whether or not the famous mark is connected or affiliated with all the other products becomes blured. An important factor to note is that this happens in the absence of a liklihood of confusion - the traditional standard for trademark infringment. Basically the arguent is that the mark is so famous that any use of the mark would blur whether or not the products were related. An example would be McDonalds for use with jackhammers. While the goods are not related enough to cause confusion, the use of the term with jackhammers causes McDonalds Corporation's trademark to loose distinctiveness.

Tranishment referes to damage to a famous mark due to a unflattering or negative association. Therefore if an individual uses a famous mark in a manner that would not be considered traditional trademark infringment, but because of the nature of the use, quality of goods, or other factors - implies a negative or harmful association or sponsorship on the part of the holder of the famous mark.

However, given 1st amendment considerations, the new act carves out exceptions for descriptive use, commentary, criticism, parody or other non-commercial use. You can count on a lot of future littigation under this section as courts wade through what is a legitimate action under the exception and what just doesn't cut it. Interestingly enough there is also an exemption if the mark in question is federally registered, and acts as a complete bar to brining a dillution claim - so basically if you are thinking of using a mark that may cause dillution, your best bet is to try to get a registration as fast as possible - of course you would have to get by the PTO first.

So basically, the standard now is thata famous mark holder just has to show that another mark just has the potential of causeing bluring or tarnishment, not that the bluring or tarnishment has actually happened

All in all, while the act does take strides to reverse the decision in Mosely, several questions still remain, including what exactly is a famous mark? What level of fame are we talking about and are we talking nationwide fame, local fame or both? For example in Colorado, I would probablly say that the mark FAT TIRE for beer would be a famous mark owned by the New Belgium Brewery for our region - but it probablly wouldn't be considered famous in a national sense (not yet anyway !). Additionally, the act has created some new questions such as what a showing of proof of a liklihood of dilution would consist of? What sorts of evidence and how much evidence is needed to show a liklihood of dillution? Until we get something similar to the Dupont factors like we have for standrad trademark infringment, that remains the $50,000.00 question. At the end of the day, i guess I should just thank congress for continued job security and we'll end this posts like so many others - we will just have to wait and see !


Saturday, October 21, 2006

LEGAL ZOOM - Why We love it!

Legal Zoom will:

1. File a Provisional Patent Application for $199.00;

2. File a Trademark for $159.00; and

3. Form an LLC for $359.

So why would we love them?

Because those who used Legal Zoom for any one of these items will eventually find their way to us or some other attorney to fix the mess they got into using LegalZoom. Peter and I figure we have earned well over $10,000 fixing problems resulting from the use of Legal Zoom; where we would only have made about 4-5,000 if the respective parties had come to us in the first place to have the associated paperwork properly prepared and filed! Also, you should know that there were several people for whom we could not fix the mistakes including a person who had lost is right to file for a patent based on a misunderstanding concerning what protections Legal Zoom's provisional patent filing really provided him.

Notice I didn't say that LegalZoom messed up: they don't! All LegalZoom does is file documents based on the information you give them. They do not offer ANY LEGAL ADVICE! In fact, the people that work on your filings are not attorneys and they cannot by law give legal advice. If you don't believe me, check out Legal Zoom's own Disclaimer at http://www.legalzoom.com/universal/disclaimer.html, which states:

"LegalZoom is not a law firm, and the employees of LegalZoom are not acting as your attorney. LegalZoom does not practice law and does not give legal advice. ... Instead, you are representing yourself in any legal matter you undertake through LegalZoom's legal document service. ... At no time do we review your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation. This website is not a substitute for the advice of an attorney."

Incidentally, the last sentence is in fact theirs, and yes, they did emphasize it in BOLD. The interesting thing is they claim to save you over $1500 in filing a Provisional Patent Application over using an attorney YET in their disclaimer they admit they are no substitute for an attorney. Are Legal Zoom's representations misleading? In my opinion, you betcha!

I wonder why one would even use Legal Zoom. If you don't want to pay an attorney, why would you throw away money on a document preparation service that does no more than fill out a form and check for spelling errors? Afterall, you could just as easily go to your State's secretary of state's web site and file your own incorporation or LLC formation papers without much difficulty and avoid paying LEGALZOOM anything at all. The same goes for filing a Trademark or a Provisional Patent Application at www.uspto.gov.

The fact is MOST people that use Legal Zoom don't read the disclaimer and actually believe that Legal Zoom is looking out for them much in the same way an attorney would. Some may even believe the Robert Shapiro is their attorney.

In truth, the reason you use an attorney is not to merely fill out forms BUT to use our knowledge to prepare documents in a manner that is of maximum benefit to you. You hire an attorney because we know stuff that you do not: stuff learned through years of schooling and experience. We do not charge hundreds of dollars an hour because we want to stick it to our clients: we charge hundreds of dollars an hour because that is what other clients and other consumers of legal services have determined our advice and services to be worth.

In the long run, as several former clients of LegalZoom have found out, we may actually be less expensive than the alternative.

While Legal Zoom may be good for our pocket book, they may not be good for yours. While we may have reason to love them, you have a reason to hate them. So given the foregoing statements, why are so many people using Legal Zoom and why am I writing an article telling them why they shouldn't?

Let me just end this post saying that we welcome all former Legal Zoom customers and we are more than happy to help you fix any mistakes made as a result of using LegalZoom.

Good Day,