Last time, we gave you this hypothetical question from Hypothetical Client:

I’m confused. What’s the difference between trademarking and copyrighting? I have a line of t-shirts, but I don’t know whether to apply for a trademark or register a copyright to protect them. If we apply for a trademark, will that protect all the designs on the t-shirts against knock-offs?

- Hypothetical Client

We broke down the question into three discrete parts:

1. what does a trademark registration do?
2. what does a copyright registration do?
3. how do knock-offs and counterfeit goods figure into this?

Last week we explained the practical function of a trademark and the purpose of registering trademarks.

If you’ll recall, HC had been using the trademark HCTM as the brand identifier of a line of well-crafted t-shirts made of organic cotton. Baddy&Co came along and started using the confusingly-similar trademark HTCM as the brand identifier of a line of poorly-crafted t-shirts made of a fabric that caused unsightly rashes. Baddy&Co’s commercial activity overlapped Hypothetical Client’s established circle of trademark rights.

This week we’re covering this part of the question:
what does a copyright registration do?

When Hypothetical Client talks about protecting designs on the t-shirts against knock-offs, HC is most likely talking about protecting against infringement of the graphics on the t-shirt. “Knock-offs” can also mean counterfeit goods, which is 99% not related to copyright protection. We’ll cover counterfeit knock-offs next time.

In general, infringement occurs when somebody else’s activity overlaps your established rights. If you wanted to visualize it, you could think of your bundle of established rights as a circle, and an infringer’s activity would overlap partof the “fringe” of your circle, like in a Venn diagram.

When we talk about copyright infringement, we are usually talking about someone else making unauthorized copies of your copyrighted material.

Way back in the day, if somebody wanted to copy something, it wasn’t too much of an issue because they had to do it manually - a long and laborious process.  We’re talking pre-printing press here, which wasn’t even invented until around 1400AD.

Before the printing press, each image was handmade, and each book was copied by hand. Libraries were relatively rare and the catholic church had a heavy hand in the access to printed information.

Can you imagine hand-copying an entire book today? People used to do that in places called scriptoriums (I guess technically the plural is scriptoria).

As the printing press became all the rage, each press had to be licensed by and registered with the government. The government essentially controlled who printed what because uncontrolled information in the hands of the general population is a dangerous thing!

I won’t draw any parallels between the licensing of printing presses in the 1550s and the US government limiting public access to taxpayer-funded court records and congressional research.

Although the history of copyright is fascinating and rife with political, religious, and socio-economic intrigue, let’s fast-forward a little bit so we can get to contemporary copyright issues, which is what our Hypothetical Client is mostly concerned with.

“Copyright” literally means “the right to copy.” It is available for creative works in a fixed form. Copyright protection is not available to all work in a fixed form - the work must be original and “minimally creative.”

Copyright protection does not extend to ideas, procedures, processes, slogans, principles, or discoveries.

A copyright registrant has a temporary monopoly on the reproduction and distribution of their material. Congress granted this temporary monopoly in an effort to stimulate innovation, with the idea being that if people had no opportunity to profit off of or make a living from the work they put into their material then there would be no incentive for people to put time and effort into creating anything.

Despite Disney’s efforts to the contrary (see the Mickey Mouse Protection Act of 1998), copyright protection for original, minimally-creative works was not intended to be perpetual. It is intended to be temporary, and is intended to benefit the author who created and published the material - not the author’s next seventeen generations of heirs.

OK, so why register a copyright?

A copyright registration by itself won’t prevent people from ripping you off - but it will give you some recourse if you discover that someone like Baddy&Co has copied the original, minimally-creative designs that you published on the front of your t-shirts.

Like trademark registration, a copyright registration will “put the world on notice” that you are the author of the designs. If someone wants to use your designs, the copyright office’s registration catalog will kindly provide your contact information so a potentially licensee (licensee = someone who wants permission to use your material) can contact you about licensing your designs.

If a scurrilous cad like Baddy&Co decided to lift your designs without your permission, then copyright laws (specifically, 17 USC 504) provide for some nifty statutory damages.

As a copyright owner, you can choose to claim your actual damages for the injuries you suffered by virtue of Scurrilous Cad’s infringement, OR you can choose to claim statutory damages. Statutory damages for infringement of any one work is not less than $750 nor more than $30,000 EXCEPT if the infringement was willful, in which case statutory damages can reach up to $150,000.

Compared to trademark registration, which can be tricky, copyright registration is easy. Nowadays you can register copyrights online with the US Copyright Office at copyright.gov.

To recap:
- As we learned last week, trademark registration protects your brand, which relates to the overall quality of the products you offer for sale under your trademark.
- Copyright registration protects your exclusive right to copy and distribute the creative designs you use to decorate your t-shirts.

Make sense?

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Disclaimer: These articles are for information only and do not constitute advice particular to your individual legal situation. Nothing on this site creates an attorney-client relationship between you and Heraty Law PLLC. The information on this site is general only, and you should not act upon this information without consulting with an attorney. If you send any confidential information to us and you are not an established client of ours, we may not be obliged to keep the information confidential.

A Hypothetical Question from A Hypothetical Client:

I’m confused. What’s the difference between trademarking and copyrighting? I have a line of t-shirts, but I don’t know whether to apply for a trademark or register a copyright to protect them. If we apply for a trademark, will that protect all the designs on the t-shirts against knock-offs?

- Hypothetical Client

This seems like a relatively simple question but it is really packed.

There are three broad issues here:
1.    what does a trademark registration do?
2.    what does a copyright registration do?
3.    how do knock-offs and counterfeit goods figure into this?

Let’s hit the first one today and save the rest for later.

So, yeah, what does a trademark registration do, anyway? Why bother?

A trademark registration is intended to protect your brand. A brand/trademark is used to leverage a company’s goodwill in the marketplace and to indicate to the purchasing public the source of the goods (or services) marketed under a specific trademark.

OK, but really, what does all that mean?

For example, if I like Haagen Dazs ice cream (which I do), what does that mean? It means that I am partial to the ice creams that are sold under the Haagen Dazs trademark, because I have always found them to be delicious and of high quality.

I am more likely to purchase a pint of chocolate-chocolate chip Haagen Dazs than I would be to buy a store brand or generic version of chocolate-chocolate chip ice cream, because I know for sure (based on my past experience with Haagen Dazs) that the Haagen Dazs version is going to be delicious. Meanwhile, I might be skeptical of the quality of a generic ice cream because there is no brand/trademark reputation standing behind it.

My inclination to purchase a pint of Haagen Dazs because Haagen Dazs has been consistently delicious is called “goodwill”. Goodwill is related to a company’s reputation, except that goodwill has a financial value to it in some valuations.

In the case of Hypothetical Client, HC creates a line of t-shirts that have unique designs on them. The t-shirts are made of organic cotton of a high-quality density. HC decides to use “HCTM” as the trademark for the t-shirts. HC creates labels that use the HCTM trademark and hang-tags with HCTM on them.

HC spends a fair amount of dollars on marketing, hires a showroom, creates a webstore, and attends apparel tradeshows, all in an effort to sell HC’s goods under the trademark HCTM. As part of building the brand’s identity, HC advertises that it donates a portion of its profits to Green Corps, a non-profit that supports environmental protection and public health initiatives.

Consumer finds one of HC’s t-shirts sold under the trademark HCTM, likes it, and buys it. Consumer likes the quality of the t-shirt and she gets a warm fuzzy feeling at the thought of not only getting this great t-shirt (which looks smashing on her) but also indirectly contributing to Green Corps. HCTM has all the qualities Consumer is looking for in a t-shirt and Consumer gives HCTM two thumbs-up. Goodwill all the way, baby!

Over the next few years, Consumer sees HCTM t-shirts being sold at different stores and buys them for herself and as gifts for her friends.

Because the quality of an HCTM t-shirt has always been good, Consumer is more likely to buy HCTM t-shirts again – somewhat regardless of the actual design on the t-shirts – because Consumer doesn’t have to guess about the quality of HCTM t-shirts. The value of the trademark “HCTM” is partially related to the likelihood that Consumer will purchase HCTM t-shirts again and again.

Lo and behold, a new company (Baddy&Co) starts marketing t-shirts under the trademark HTCM. Baddy&Co’s HTCM t-shirts are made of a cotton-poly blend and the owner of the company has founded an organization that has the sole purpose of denying global warming.

By selling Baddy&Co t-shirts under the mark HTCM, Baddy&Co traded on the goodwill of HC’s company to get sales for themselves and potentially to take sales away from HC.

Let’s visit Consumer again: Consumer needs to buy a present for her brother, goes shopping, and sees the HTCM t-shirt. Mistaking the trademark HTCM for the trademark HCTM and believing the t-shirt to be manufactured by HC, Consumer buys the t-shirt for her brother. Consumer’s brother, who has sensitive skin, gets a bad rash from the t-shirt and he stops talking to his sister, Consumer, for a week.

Because the marks HCTM and HTCM are confusingly similar and are used on similar goods, it has led to confusion in the marketplace about the actual source of the t-shirt. Consumer mistakenly purchased HTCM’s poor-quality t-shirt for her brother and they had a collectively bad experience.

This harms HC and its HCTM trademark in two ways:
1. It results in a lost sale because Consumer purchased the HTCM shirt instead of the HCTM shirt, and
2. Consumer and her brother had a bad experience with a t-shirt they thought was made by HC’s company, and Consumer and her brother (and probably their friends) will be reluctant to purchase another t-shirt marketed under the trademark HCTM.

OK, so what does this have to do with trademark registration?

When HC registers its trademark, HC “puts the world on notice” that HC is using the mark “HCTM” in commerce in connection with t-shirts.

This “putting the world on note” of the use of the trademark would:
1. dissuade a prudent business from using the mark HTCM in connection with apparel; and
2. give HC greater rights to prevent Baddy&Co from marketing goods under the mark HTCM; and
3. if the infringement was intentional/willful on Baddy&Co’s part, HC would be able to receive minimum statutory damages (an amount of money set by statute to dissuade people from infringing on other people’s marks).

None of this has anything to do with the designs on the front of the t-shirts. Those are covered by copyright registration, which we’ll cover later.

Make sense?

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Disclaimer: These articles are for information only and do not constitute advice particular to your individual legal situation. Nothing on this site creates an attorney-client relationship between you and Heraty Law PLLC. The information on this site is general only, and you should not act upon this information without consulting with an attorney. If you send any confidential information to us and you are not an established client of ours, we may not be obliged to keep the information confidential.

Yay Jenny!

Heraty Law client Jenny Hwa of Loyale is featured in this week’s Time Out New York.

After working for various fashion houses (Jill Stuart, Catherine Malandrino and Calypso, to name a few), Hwa came up with the idea of Loyale. Launched in the spring of 2005, Loyale was originally a line of eco-minded yoga wear. “The silhouettes for yoga clothing back then were frumpy,” explains Hwa. Since then the organic collection has become more fashion-oriented and Hwa has won multiple awards for her sustainable practices. “With eco, there’s a sense that you have to sacrifice something, but I’m trying to disprove that.”

Read the article for Jenny’s shopping tips. 

V1 Gallery proudly presents THE NEW YORKERS

Jenny Holzer, KAWS, Francine Spiegel, Rammellzee, Dash Snow, Barbara Kruger, Joe Bradley, Jose Parla, Katherine Bernhardt, Futura, John Copeland, Ryan McGinness, Stephen Powers, Erik Foss, Doug James, Brian DeGraw, Agathe Snow, Peter Saul, Kostas Seremetis, Ryan Wallace, Takeshi Murata, Peter Sutherland, Daze, Erik Parker Timothy Walkiewicz, Bill McMullen, Sue Kwon, Andy Dolan, Noah McDonah, Greg Lamarche, Devin Flynn, Aurel Schmidt, Peter Beste, Richard Kern, Sarah Braman, Todd James, Brian Montuori

Opening reception: Friday May 1 2009. From 17.00-22.00
Exhibition period: May 1 2009 – June 22. 2009.

New York is difficult to fence in. It’s offensively arrogant and perplexingly tolerant. Erotically alluring and nauseating repulsive. An oxygen tank for thoughts, and quicksand for illusions. Sentimental Samaritan and merciless lyncher. Empty talk at predictable receptions, and genuine interest in unlikely situations. Voluptuous muse, and flat canvas. Cool business card, target oriented CV, brief acquaintance, entertaining fuck, miserable marriage, harmonic partnership and lifelong friendship.

The exhibition The New Yorkers at V1 Gallery is equally difficult to map out. Quirky installations mixed with classical painting. Sprouts shoot up next to legends. Aesthetes hang out with rebels. The refined photograph with the crude posca pen. And surreal systems runs along coordinated chaos.

Veterans Jenny Holzer and Barbara Kruger brand the city with sharp words while young kid KAWS with his tongue in cheek and pen in hand creates fluffy havoc and death.

The remarkably talented John Copeland’s paintings, that at a glance resembles works from the 50s, reveal a world in which cynical competition, sexual frustrations, strategic warfare and suppressed feelings lurk under the decorative surface.

Shooting star Francine Spiegel lets her feverish nightmares run amok over the canvas with a death, rot and destruction trailing rights behind. Peter Sutherland’s poetic lens highlights sensitive nuances and tender colours in stark contrast to both Peter Beste’s razor sharp portraits of musical identities and Dash Snow’s slippery polaroids that clasp onto self-serving decadence and intriguing irony.

Sarah Braman’s strange sculptures balance on the ground and at the knife’s edge between genius and vexing, while they’re throwing pebbles in Joe Bradley’s minimal and provocative shoe, which in return kicks prejudiced hipsters in their hypocritical behinds.

Hyped Agathe Snow from the 2000s empties a dustpan of art, shit and filth over traditions and superstition, while 80s cult hero Rammelzee unleashes his army of complex and gruff superheroes in a hierarchical world of catastrophes and doubtful redemption.

A common denominator for the city, the artists and the works is defiance against generalizations and predictability. And they are tangled together by connections that in some instances are straight as Broadway and in others are twisted as the alleys of Brooklyn. It races through time and dwells in the moment. Skips generation gaps and swoops under genre definitions. Pisses on narrow minds and gallantly opens the door for curiosity.

The New Yorkers is an ode to the thoughts that dare stand alone in both shade and sun, and at the same time also has the courage to open up and let inspiration flow freely. The exhibition is also a unique chance to experience a rare and sublime piece of New York in Copenhagen.

The New Yorkers is curated by Mikkel Grønnebæk and Todd James. Please contact V1 Gallery for further information: (+45) 33 31 03 21 / elg@v1gallery.com V1 Gallery / Flaesketorvet 69 / 1711 Copenhagen V / Denmark / www.v1gallery.com Opening hours: Wednesday-Friday: 12-18. Saturday 12-16.

Thank you Danish Arts Agency, Envoy Enterprises Inc, Honor Fraser Gallery, Galleri Faurschou, Peres Projects, Sprueth Magers, David Nolan Gallery, James Fuentes, Deitch Projects & Canada. Tuborg, Pernod and Nanna Thylstrup for text.

Austin Roller Derby Player’s Name Protested by Frito-Lay

by Ryan Loyd