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Archive | December, 2011

Acceptable and Unacceptable Terms of Agency Agreements

Co-author Gerald M. Levine Agency agreements are not forever which is the reason to be concerned about their terms. There are acceptable and unacceptable terms.  They are not like publishing agreements in which authors grant licenses “for the term of copyright.” Nevertheless, for the term of of agreement the agent has an exclusive right to […]

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Giving Parties Benefit of the Doubt: Sufficiency of Evidence

Giving a party the benefit of the doubt is really shorthand for insufficiency of the other’s evidence. In the first instance, complainant has the burden for establishing its case for all three elements, but as it proceeds from element to element its burden grows heavier. Proof that the domain name is identical or confusingly similar […]

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Resolving Disputes in Face of Conflicting Testimony

A UDRP record is similar in some respects to a motion for summary judgment in a civil action in that each party puts forward its best case in support and opposition to the complaint. The difference is that in a civil court action a case can proceed to discovery and trial but in a UDRP […]

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Pitfalls for Self Publishing Authors

There are publishers in the traditional sense who curate the books they publish and there are companies that provide printing services for self publishing authors without curation who pretend to be traditional publishers. Be wary of printing contracts styled as publishing contracts. The business models are entirely different. Printing contracts can be misleading in describing […]

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Chances of Winning and Losing Domain Name Disputes

Panels are typically faced with a cascade of options in resolving UDRP disputes. Complainants do not necessarily prevail for proving trademark rights and respondents do not lose for failing to appear and defend themselves. First for some perspective. WIPO prepared an informative overview of the UDRP and its role in a paper dated August 2011 […]

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Instances of Registration and Use Outside Scope of the Policy

The Policy’s scope is limited to “‘abusive registrations’ made with bad faith intent to profit commercially from others’ trademarks.” Second Staff Report on Implementation Documents for the Uniform Dispute Resolution Policy, 4.1(c). The Report continues that “the adopted policy leaves the resolution of disputes to the courts (or arbitrators where agreed by the parties) and […]

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Terminating Exclusive Licenses and Recapturing Copyrights

Gerald M. Levine, Co-author Authors control the rights to their works until they agree to exclusive licenses for all or some of them. At that point the rights are controlled by the grantee, typically the publisher for the term of copyright. A typical provision in publishing contracts provides that “[t]he Author agrees to grant and […]

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Protection of Mark as One of a Family of Marks

As a general rule, marks that share a common characteristic or dominant element can receive protection as one of a family of marks. U.S. federal courts have explained that “[t]he family of marks doctrine is important because it provides that a likelihood of confusion can exist even though a junior user’s mark may not be […]

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It Is Not Who You Say You Are, But Who You Are That Counts

For a respondent to succeed in showing it is who it says it is it must make an affirmative showing that it “ha[s] been commonly known by the domain name, even if [it has] acquired no trademark or service mark rights” [Paragraph 4(c)(ii) of the Policy]. In determining whether respondent establishes this defense it is […]

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Trademarks for Authors

What do trademarks have to do with authorship? Trademarks signify sources of production. The question come up with authors producing serial works who are interested in creating brands. Trademarks for authors can be perfectly reasonable. While single works are not eligible for trademark registration serial works are. Personal names are not registrable as trademarks but […]

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Common Law Rights of Celebrities to their Names

Ordinarily, personal names are not registrable for trademark because they are not sources of goods or services but celebrities can own common law rights to their names in that their names convey distinctive signifiers. In an early decision that was later repudiated a celebrity’s complaint for transfer of a domain name identical to his personal […]

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