The Is My Brand Protected? Podcast

This is a guest podcast from our own, Irina Pomestchenko. Irina is a patent professional for AMD LAW Group. In this episode, Irina discussed the process for securing patent protection outside the U.S.

Enjoy!

TRANSCRIPT

Hello and welcome to the “Is my brand protected” podcast. My name is Alana Ballantyne and I am your host for today.  I will start with a quote from Thomas Edison - Edison once said this about his invention, the light bulb,

“I haven’t failed, I’ve just found 1000 ways that won’t work.”

Now he certainly couldn’t patent all 1000 of those ideas, but today’s we will discuss how he could have properly patented one of them.

When we think of a patent, we think of inventions and devices. Legally, a patent is a government license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention. For example, Thomas Edison patented his invention of the incandescent lamp in 1880. This meant that no one else could build or sell an electric light in the manner that Edison did. Edison held the sole rights to that particular invention.

What a powerful legal position!

But what happens when someone uses a patented invention without permission? About 95 percent of patent disputes in the US are resolved before trial, either through alternative dispute resolution or settlement. This episode is for those rare few who find themselves actively litigating the 5% of patent cases that actually go to trial.

Usually, litigation will begin by either sending or receiving a demand letter, also known as a “cease and desist” letter. You would send a demand letter if you have a good faith basis to believe that someone is infringing on your patent. In this situation, before sending a demand letter, it is important that you reasonably investigate the claim; you want to be sure that infringement is actually occurring. Your letter should identify the patent or patents involved and give a description of why the patent owner believes the business infringes.  

In terms of infringement, it is important to know the difference between a patent and a provisional patent. A provisional patent is a placeholder patent that lasts for a year. It's not examined by PTO. and not published. Within 12 months of the provisional filing, the full utility application should be submitted. Once a provisional application is submitted - the patent is considered pending. From this point on nobody can sell, import or use the invention in the US. If you notice someone is infringing on your pending patent, you cannot sue until the full utility patent is issued.

You can send an infringing party demand letter. It lets the infringer know that you are planning to file the lawsuit once your utility patent is granted.

If you receive a demand letter, it means that the other party believes that you are infringing on their patent. Sometimes, you will receive a letter with vague demands for payment and no additional information. This can make it difficult to assess whether the persons sending the letter has a legitimate claim. There is an entire cottage industry of individuals who make phony or frivolous patent claims against businesses and attempt to intimidate it into paying. For example, some people patent lots of possible inventions at once and then try and sue companies that invent something that is anything close to the patent they hold.

The next stage of patent litigation is the complaint. The complaint is a document filed in federal court by the plaintiff that initiates the lawsuit. The purpose of the document is to provide notice to the defense about the specifics of the plaintiff’s claims. The complaint must include a short and plain statement of the grounds of the claim. For a patent claim, it should include images and specifications. The complaint should also include a demand for relief and the type of relief sought. If you are the defendant, you must file an answer to the complaint within 21 days of receiving notice of the complaint.

After the defendant files an answer, the court sets the schedule for the case. No matter which side of the case you are on, you must meet with the opposing party and set up a time to hand over initial disclosures as well as determine the scope of discovery. Relevant information is generally discoverable, except when it falls under an exception. Information does not have to be admissible in order to be discoverable. It must be reasonably calculated to lead to relevant information. Some judges may require parties to exchange their claim construction contentions at the beginning of the case instead of waiting for discovery.

Claim construction is the process of deciding what the various terms of the patent mean. A patent claim is supposed to be read “in light of the specification,” meaning that you interpret the claims based on what’s in the patent application. The plaintiff and defendant will sit down and run through each claim; proposing their respective definitions to each other. Courts generally encourage parties to come to an agreement on what each term means. Courts do not like to get involved in settling such questions.

The parties will then brief each claim. The court will set what is known as a Markman Hearing. At these hearings, both sides will advocate before a judge for their definition of each term in the claim. The judge is allowed to adopt either party’s definition or neither party’s definition. Regardless, once the Markman opinion issues, it’s often clear whether the defendant infringes and whether the patent is valid. There may be a need for a protective order. A simple guide on protective orders can be found online. This is a common settlement point. If there’s no settlement, the parties will typically move for summary judgment.

If summary judgment is not granted and the parties have not settled, trial is the next step. A trial is the most expensive part of litigation. Patent cases also involve expert testimony on both sides. The trial often comes down to which expert the jury believes the most. After the trial, the jury will return a verdict.

Patent litigation has the potential to be a long and arduous process. The USPTO website has more information on patent litigation! Please let us know if you have any questions. We are here to help you answer your trademark, patent, and copyright questions.

This is our interview with Life-Coach, James Bonds.  Coach Bonds is a life-coach for business owners and entrepreneurs with a focus on C-Suite executives. Coach Bonds shares some of his insights with us such as the coveted notion of "having it all".  Coach Bonds is the curator of the Well-Driven Life. com website and represents both national and international clients. Coach Bonds can be reached via his toll-free number (866)775-5233 or his Well Driven Life website.

We hope you enjoy this episode!

In this episode, we interview Irina Pomestchenko. Enjoy!  

In this episode we discuss - What is a Trademark? The lead-off quote:

TRANSCRIPTION Hello and welcome to the IS MY BRAND PROTECTED? podcast. I am Aurelia Mitchell Durant your host for today and today I'm just going to chat with you a little bit about what a trademark is and what a trademark is not the leadoff quote is from Lucille Ball. I dyed my hair this crazy red to bid for attention. It has become a trademark and I've got to keep it this way. That is from Lucille Ball from I Love Lucy fame and that highlights what a trademark is not a trademark is not something that you do. That's her process like your hairstyle are the way that you walk a trademark is a brand that you build using commerce so arguably you could say that Lucille Ball is hair color was a trademark. But it wasn't exactly a trademark that can be protected. So, when you think about your brand and think about protection think about those elements that you want the public to seize on. But it has to be something that is tangible something that you can actually enforce as a particular trademark. So, a trademark is not just any catchphrase or slogan that you use is actually what you're going to use to build your brand around. So, for example, Nike is a trademark and they also have a popular tagline that they use. That's also a trademark. The tagline is “Just Do It”. And then also the logo is a trademark because those are things that you use in commerce. So, a trademark is not something that you casually stumble upon that you use occasionally your trademark for your brand is something that you want to be known by. Now, this is very distinct from what your corporate name is, for example, the trademark brand name for the Mattel company is Barbie. So, it's not the same name. And that's how you evidence that trademark. That's not exactly the same thing. The other thing that I want to point out is that you can have something called a state-wide trademark and that's where you have a trademark within a particular state or geographic region. However, when you federally protect your brand and register a trademark you have protection across the nation. And it also gives you some preference if you go outside the U.S. and want to do business there. The Internet makes all things global so having a federal trademark is definitely the way to go. Now the other thing that you should keep in mind is that you don't necessarily have to register your trademark you're going to actually have something called common law rights. And that's where you have the right to use it as long as you can demonstrate that you were the first to actually use the particular mark. But that's an imperfect way to operate and that's probably not the best way to operate your business it's probably better in most instances to actually registered the trademark. And that way you get a certificate that proves to the world that you actually own that particular brand. So those are my tips for today. And thank you so much for listening to this episode of The Is My Brand Protected podcast. Be sure to follow us on the web at www.ismybrandprotected.com. Safeguarding Your Dreams by protecting your brand.  

In this episode, we will discuss website encryption for your website. Lead-off quote:

TRANSCRIPTION Hello and welcome to the IS MY BRAND PROTECTED? podcasts. I am Aurelia Mitchell Durant your host for today and today we're going to discuss SSL certificates for your Web site. Imagine the struggle and finding a lead quote that related to web site encryption. I couldn't find one but I do have one from Bill Gates. Whether it's Google or Apple are free software. We've got some fantastic competitors and it keeps us on our toes. This episode is akin to a PSA heads up a word to the wise starting in July which were this episode is probably going to air after the 1st of July but starting in July. Google Chrome will mark all HTTP sites as not secure. If you notice when you go to a Web site that is not secure it says HTTP. This means that the data is unencrypted which also means that any information that you share on the website may also be unencrypted. The significance is that in July Google will go from version 64 of Chrome to version 68 of Chrome with this new version. Google will mark any unencrypted Web site as not secure and that will show the top bar when you visit the website. I don't know about you but I don't like going to Web sites that are marked as not secure because that means to me that the information is not protected as not being encrypted properly. But because 89 of the top 100 Web sites are using SSL certificates and becoming secure it is now nudged everyone else to get up with the times and actually have their Web site secure. So that means that you have to reach out to your hosting provider or your domain servicer and get an SSL certificate for your web. So that's something that is very very important that you do if you're receiving any type of traffic on your website. So, it's not so much about whether you show up in Google because as of 2015 Google started to rank some of the websites that were not secured anyway. So even if you do show up in a Google search when visitors go to your Web site it may say and it probably will say that it's not secure if they're using the Google platform. So, there are other search engines that you can use. But everybody's inclined to Google something so if you have a website which I suggest that if you're building any business brand that you do have a website it's best that you have it secured. You have we're already in July so you have some time to do that but that's something that should be high on your priority list. So, I hope you found some information that you can use from this particular episode. And I thank you for listening to the IS MY BRAND PROTECTED? podcast.  Safeguarding your dreams by protecting your brand. Resources: https://www.theverge.com/2018/2/8/16991254/chrome-not-secure-marked-http-encryption-ssl

In this episode, we discuss cultural appropriation or "Doing it for the Culture."

Lead-off quote:

“I’m not tone deaf to where I don’t get it. I do get it.” ~Kim Kardashian West

TRANSCRIPTION

Hello and welcome to the IS MY BRAND PROTECTED? podcast. I am Aurelia Mitchell Durant, your host for today and today we're going to talk about doing it for the culture. In other words, cultural appropriation. The lead-off quote for today is from Kim Kardashian West and the quote is I'm not tone deaf to where I don't get it. I do get what she's talking about is the recent flack about her decision to wear Fulani style African breeds. Cultural appropriation is the concept of dealing with the adoption of elements of the minority culture by members of the dominant culture. So, this applies to fashion symbols language music. The most outward expression of it is in terms of the hairstyles that women wear braids are traditionally considered an African element of culture. But is there any ownership of that particular piece of culture when you think about it in the context of building a brand. Some of you if you're old enough are willing to admit that you are old enough remember Bo Derek in the movie 10 where she was running along the beach with these long flowing braids in her hair with beads at the end African-Americans like myself. No, that one of the reasons why she had beads at the end is because her hair didn't have the same level of kink to be able to hold the braids so they needed to be something at the end to hold the beads.

But was that considered cultural misappropriation. When you think about it cultural misappropriation is where you take ownership over that particular element of the culture when you know it's not part of your culture. So, I came across this interesting article that went over the do's and don'ts of cultural appropriation. The article is from the Atlantic and was published a couple of years ago. Number one don't dress up like an ethnic stereotype. So, what that means is blackface is never ok is never all right. And you think of the things that are considered stereotypes, think of the Washington Redskins. And there was controversy about the use of the word Redskins because it was considered a slur towards Native Americans. So, one of the main things to do when you go to appropriate the minority culture which minority is kind of fleeting these days but when you go to use something that's not an element of the dominant culture is it makes sure that you don't bolster a stereotype too. It's important to pay homage to the artists and ideas and knowledge where they came from. That's why my opening quote from Kim Kardashian West is so demonstrative. Because what she's saying is that she's not taking on the element of the culture as part of her personal brand. This is something that she's paying tribute to because she recognizes the origin.

As an African-American with verifiable Native American roots. I can say that number three is of utmost importance. Do not adopt sacred artifacts as said sarees. I have some artifacts that come from my Native American ancestry and one of the things that must not ever happen is to be able to use it as a fashion accessory. Those are things that I have framed that I keep sacred because they're special to me and it's an insult. If you take something that's considered an artifact by the minority culture or any culture and use it as a fashion accessory. For you cannot freeze culture into a moment in time culture changes based upon what's going on in that particular decade. So, what was considered cultural in the 60s is not the same as what's considered cultural today. Diversity is still important and cultural appropriation does not replace diversity. We used to talk about having a notion of tolerance for people that were different from yourself. But if I can engage in a little bit of psychological political babble I would venture to say that tolerance is not enough. These days you need to go beyond tolerance and into something that is acceptance or mimics acceptance or something beyond just tolerance because no one and no culture wants to feel like they're being tolerated.

If you get my drift.

Since we went down a more political path. Number six is gonna provoke some dialogue and that is engaged with other cultures on a more than aesthetic level. So that means that you can't really pick and choose which elements of the culture are important to you although you can. But in terms of understanding how things become culturally significant, it would be a good idea if you yourself a little bit more to understand the why for example there is a cultural notion called Epic memory. We act out things that happen to our ancestors even if they haven't happened to us in particular. And one of the cultural significant elements of epic memory is why black men tend to stroll and I learned about this when I was a student at Temple University in a class taught by Dr. Molefi Asante. The theory is that the tendency of a black man to stroll if you can kind of envision what a stroll looks like.

This tendency was to drag one foot in a cool manner and was prevalent in the 70s. The theory is that epic memory is at play because epic memory says that you act out things that didn't happen to you. What happened to your ancestors drew some sort of historical recall. So, when you look at a stroll from the 70s what that mimics is what it felt like to have shackles on your ankles.

In terms of understanding and engaging with other cultures understanding is the most important thing. I mean so if you venture to cultural appropriate try to do it on a more than superficial level. So, I hope this episode gave you something to think about when you think about elements of cultures that are not your own culture that you like and you want to adopt that you really dig and you can think about giving credit and actually making sure that you do the culture right. So, when we talk about doing it for the culture that means representing the culture and keeping the culture integral to who we are as a people. This has been the is my brand protected podcast. Thank you very much for listening. Be sure to like comment subscribe and be sure to follow us on the web at www.ismybrandprotected.com. Safeguarding your dreams by protecting your brand.

Resource: https://www.theatlantic.com/entertainment/archive/2015/10/the-dos-and-donts-of-cultural-appropriation/411292/ 

In this episode, we discuss the three types of patents. Lead-off Quote:

A patent is a right granted to an inventor by the federal government that permits the inventor to exclude others from making, selling or using the invention for a period of time. The Three Types of Patent – Utility, Design, Plant

In this episode, we discuss the Top 10 Most Valuable Brands. Lead-off Quote

Top 10 Most Valuable Brands as of 2018.

1. Amazon $150.8 Billion
2. Apple $146.3 Billion
3. Google $120.9 Billion
4. Samsung $92.3 Billion
5. Facebook $89.7 Billion
6. AT&T $82.7 Billon
7. Microsoft $81.2 Billion
8. Verizon $62.8 Billion
9. Walmart $61.5 Billion
10. ICBC $59.2 Billion

    Source: https://www.inc.com/business-insider/amazon-google-most-valuable-brands-brand-finance-2018.html

In this episode, we discuss the Top 10 Reasons to Protect Your Brand. The lead-off quote:

1. Prevent brand confusion
2. Reputation
3. Recovery of damages
4. Incontestability after 5 years
5. Public perception
6. Easier to prove trademark infringement
7. Puts others on notice of your brand
8. Protects smaller brands
9. Preventing infringing goods from entering the U.S.
10. Brand investment