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TMF + ArtsNow: Collaboration, Community, and Copyright Protection

We are excited to announce that The Moskowitz Firm has embarked on a new collaboration with ArtsNow in support of Northern Ohio public art projects!

ArtsNow, a local nonprofit, works to strengthen Summit County’s economic, artistic, and cultural vibrancy by advancing and connecting regional cultural assets with the local community. Suzann has offered pro bono advice and support to the ArtsNow organization and members of its talented artistic community. Her solid knowledge of all things copyright and brand protection has helped many ArtsNow members find their footing and protect their artwork in the digital age. 

In support of the collaboration, Suzann recently recorded a short video to describe copyright protections and advice to safeguard artwork and brands. 

Check it out!  Legal Tips for Artists video.

Are you a graphic designer or traditional visual artist considering protecting your work? 
We would be happy to discuss your needs! Reach out today

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New Gentlemen

Last week, the country’s transition of power brought more changes to the White House than the USPTO. Director Andrei Iancu confirmed this week that he would be stepping down, a typical move for political appointees of a former administration (though the office itself skews apolitical).

I think the most exciting IP related change to DC last week is the action of the nation’s first second gentleman, Douglas Emhoff, a lawyer with real trademark and copyright law chops. Emhoff recently stepped down from private practice after numerous heavy hitting achievements such as taking on Taco Bell in connection with a certain chihuahua brand and stopping the production of a wine with branding and trade dress confusingly similar to Francis Ford Coppola’s namesake bottles.  He will now focus access to justice, and I look forward to seeing how he uses this unique platform.

Like Emhoff, I’m pretty proud of the lawyer I live with. Our family has had some exciting changes over the last few months, and I could not run this show without him.

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PSA: Government Trademark Filing Fees Rising Soon

Though it’s never fun to report USPTO fee increases, what else can we expect from a year like this?

Starting on January 2, 2021, government fees for new trademark filings and various other prices rise. (Details below.)

TMF will expedite new filings in order to take advantage of the last few weeks of lower fees.  (We’ve also updated the TMF website to summarize our own pricing structure.)

Here are SOME of the main USPTO changes:

  • Standard (TEAS-PLUS) trademark application filing fees increase from $225 to $250 per class
  • Custom (TEAS) trademark application filing fees increase from $275 to $350 per class
  • First renewal (fifth year) fees increase from $125 to $225 per class
  • Cancellation/opposition fees increase from $400 to $600 per class
  • Letters of Protest are no longer free, but $50 per letter
  • Special petition fees increase from $100 to $250

Email so we can put together a custom quote to protect your brands and get started on searches (including words, slogans, and logos) in time to file BEFORE the changes go into effect.

Have a safe and healthy December!

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Don’t Copy This Post

After years of talking about it, the US Copyright Office has launched a single form to register up to 50 blog or social media posts as a group (with a single fee), effective immediately. Posts must be by the same author or group of authors but can span multiple platforms. This option protects text only, and applies only to groups of posts published over a three-month period.

In addition to this new short online literary works category, Group Registration for written works is also allowed for:

– a group of issues from a single serial publication (magazine, online magazine) published over a three-month period

– a group of issues from a single newspaper/newsletter published over a three-month period (regardless of frequency)

– a group of contributions created by the same individual published in a single periodical over a one-year period

For questions or to protect your valuable posts, contact us.

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Change on the Horizon

While TMF’s ten-year celebration didn’t exactly go as planned, we enter the final stretch of 2020 with a cautious sigh of relief and exciting plans for the next decade.

Close observers of TMF have known that we’ve always gone for a subtle nod to trademark law in our two-tone logo. 

Why the need to be subtle, you ask?

My state’s law had been quite buttoned down: a law firm’s name could not include much more than a last name, with no clever tradenames allowed.   While taking some solace in my logo’s dark-blue acronym of “The Moskowitz,” I have quietly grumbled about this prohibition—a particularly painful fate for a gal who spends most days helping clients launch creative brands.

And now? Opportunity for change appears to be upon us.

In 2020, I appreciate the small gifts. In this case, my state updated Rule 7.5 this summer which now opens the door to a change—so long as we steer clear of “false, misleading or nonverifiable” names.  

Suddenly, we’re furiously typing in domain names, referencing the thesaurus, and fretting about swag.  

I always understood why my clients sought decisive advice and fast turnaround, but I never appreciated it so deeply as I do now.

Best wishes for a return to normalcy, or an opportunity to make positive change.

And… stay tuned for naming news.

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COVID-19 Crisis Encourages Publishers to Lift Copyright Restrictions

Copyleft for Crisis

Following the lead of content owners like J.K. Rowling and Zoom who have lifted certain copyright and access restrictions to help engage students and connect people during the ongoing COVID-19 crisis, now even major publishers are following suit and temporarily relaxing certain copyright rules and allowing more online book readings. 

Teachers, librarians, and parents are enthusiastic about this news because the easing of the restrictions gives free access to all learners during their homebound days. Digital storytimes have become widely available and publishers and nonprofits are giving away free e-book and audiobook links to eager readers and listeners. The copyright restrictions will most likely be reinstated at the end of the 2020 school year.

Though we are heartened about this opportunity during the ongoing COVID-19 pandemic, creators and consumers interested in open access to creative and artistic content can always find valuable resources at sites including the Internet Archive and Creative Commons, organizations dedicated to expanding knowledge and culture, where less restricted content has been available for decades. The Moskowitz Firm continues to support these nonprofits, as well as local libraries which have been actively sharing valuable content, even with closed doors.

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Trademark Specimens and USPTO Quality Control

Clients with new trademark applications and renewals pending may note TMF’s detailed/persnickety questioning regarding the proof of use (specimen photos) and dates of first use in interstate commerce.  In late 2019, the USPTO issued examination guidelines to ensure that the photos and screenshots submitted by Applicants truly reflect the underlying goods and services.

As such, website images must include the date the screenshot was taken and the full URL.  Likewise, photos of trademarks on plain packaging must be submitted with a clear view of the actual product inside.  While only one specimen is required for proof of use, as USPTO examination has become stricter, we may ask clients for multiple images, and always urge a conservative approach when it comes to interstate use dates. 

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Copyright Office Clarifications

The US Supreme Court took on copyrights in two major cases, the first reinforcing the importance of timely federal copyright registration. It unanimously held in Fourth Estate Public Benefit Corporation v. that copyright owners must obtain a registration from the United States Copyright Office prior to filing an infringement action.  

As such, whereas some courts previously allowed lawsuits to proceed on the basis of simply submitting a copyright application (rather than waiting the 6+ months of processing time or paying the $800 fee to expedite), it’s now clear that for creative works, prompt filing (i.e., BEFORE an infringer pops up) is a prudent investment. 

In a second important opinion, Rimini Street, Inc. v. Oracle USA, Inc., the high court clarified what it means when a loser of a copyright case has to reimburse “full costs” to the winner – and held that reimbursement is actually limited to specific categories (including court and document-related costs), but not big-ticket expert testimony and e-discovery expenses.  While this may make some plaintiffs think twice before expending huge sums on questionable cases, the ruling only pertains to reimbursement of costs and does NOT limit the huge sums that victorious plaintiffs are still eligible for as actual damages remedies (as well as reasonable attorney fees) under US Copyright law.  

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Brand Endorsement

As companies rely more heavily on social media for the promotion of their products and services, it’s important to note that Federal Trade Commission (“FTC”) advertising rules are not just for celebrity endorsers, but rather for anyone with a “material connection” to a brand.  Such a material connection—as described in the FTC’s recently updated guide “Disclosures 101 for Social Media Influencers,”—includes a family, personal, employment, or financial relationship (i.e., the brand owner providing free or discounted goods or services in return for a positive post).

In short, if there’s an unexpected connection between an endorser and the brand, it must be conspicuously disclosed.  While a positive post from an owner about her own business would be expected (and therefore not require a disclosure), if that owner encourages her employees to make such posts, doing so without disclosures about the employment relationship would be prohibited.   Likewise, because the promise of free and discounted goods could obviously lead to a positive bias, any third party—famous or not—must include a clear disclosure about the gift or discount, within the posted text and/or image itself.

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