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IP Food Truck

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Kevin Hess

on 16 February 2013

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Transcript of IP Food Truck

How to Protect Your Food Truck Intellectual Property: Thought for Food Meet Your Entrepreneur... Trade Secrets and Copyright:
Protecting Your Recipes and Menu Thank You.
Any questions? And his famous dish Dining Experience: His Signature Dish Sam’s Dining Experience Dining Experience: His Presentation Dining Experience: The Truck Dining Experience: His Rhyming Would you eat them in Love Park? Would you eat them with Bobby Clarke? Trade Dress: Protecting Your Dining Experience The Lanham Act gives a cause of action for “any word, term, name symbol, or device, or any combination thereof…which…is likely to cause confusion…as to the origin, sponsorship, or approval of…goods.” Trade Dress: Where does it come from? Involves the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.
- The Supreme Court (1992)

A category that originally included only the packaging, or “dressing,” of a product, but in recent years has been expanded… to encompass the design of a product.
- The Supreme Court (2000)

Trade dress is…akin to trademark. The idea is that the look or feel of a product (or service) can…signify the creator or maker.
- Kal Raustiala & Christopher Sprigman (law professors) Trade Dress: What is it? Trade Dress: Examples US Registration Number 2007624 Trade Dress: More Examples Trade Dress: Examples Trade Dress: Examples How to Protect Trade Dress No Secondary Meaning “[A] festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals. The patio includes interior and exterior areas with the interior patio capable of being sealed off from the outside patio by overhead garage doors. The stepped exterior of the building is a festive and vivid color scheme using top border paint and neon stripes. Bright awnings and umbrellas continue the theme.”
Two Pesos, Inc. v. Taco Cabana, Inc. The Supreme Court Decides on Mexican Food Generic vs. Inherently Distinctive Generic vs. Inherently Distinctive Distinctiveness: Inherently Distinctive Nonfunctionality: Truck Wrapping Ask yourself whether the element is “essential to the use or purpose of the product, or if it affects the cost or quality of the product.” (Supreme Court case)

Think: decorative, ornamental Nonfunctionality Must use trade dress in commerce;

Must be nonfunctional;

Must be either (a) inherently distinctive or (b) distinctive through secondary meaning;

Must not create a likelihood of confusion among consumers. Trade Dress: Must Haves 1. Wrap your truck creatively
2. Package your food in an unexpected way
3. Create a dining experience that consumers will link to you
4. Register your trade dress
5. Don't infringe another's trade dress Top 5 Things to Learn from Trade Dress Secondary Meaning: A Cautionary Tale? Secondary Meaning Definition: when the trade dress element clearly signifies its creator
Used to have to prove this and inherent distinctiveness for all trade dress claims
Now only must prove one or the other, unless it's a case involving product design or color Distinctiveness: Secondary Meaning A fact-specific inquiry into whether consumers are confused concerning the origins of two products Likelihood to Confuse Nonfunctionality: Presentation and Packaging 1. Litigate (bad idea)
2. Register (better idea)
Fill out the application described in the trademark section.
Each Registration costs from $275-$375
Lawyers are helpful Send a cease-and-desist letter.

Sue.

Prevent someone from using your Trademark by registering it
and giving others Notice! What if Someone Uses your Trademark? Lime Fresh Mexican Grill and
The Lime Truck
Trademark Infringement
Infringement occurs when one business uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers

Trademark Dilution
Dilution occurs when you use a trademark identical or similar to an existing famous trademark, even if the goods being offered are unrelated The Danger of Using a Similar Trademark Search the Federal Register
http://tess2.uspto.gov/bin/gate.exe?f=tess&state=4006:4veyp3.1.1

Search for Pennsylvania Trademarks
http://www.portal.state.pa.us/portal/server.pt/community/corporations/12457/registration_of_a_trademark/571894

Search the Internet The Importance of Running a Trademark Search An application to register a trademark that is "confusingly similar" to an existing trademark will be rejected by the PTO.

If the goods or services two businesses offer are totally unrelated their trademarks will not be considered confusingly similar.

If the goods of one business competes for sales with those of another, the trademark will usually be rejected if the trademarks are sufficiently similar that customers are likely to be confused by them. Confusingly Similar to an Existing Trademark China Grill's application to register the name of its restaurant as a trademark was rejected, because "China Grill" was descriptive of a restaurant that serves Chinese food.

When choosing the name of your business its important to weigh business concerns against legal concerns.

Descriptive business names may be a good choice because they advertise what you’re selling, even though they are difficult to protect as trademarks China Grill A trademark must be distinctive to be eligible for registration, it cannot be a generic term or descriptive of the goods or services offered.

Distinctiveness
Arbitrary/fanciful = inherently distinctive
Suggestive = usually distinctive
Descriptive = not inherently distinctive
Generic = inherently non-distinctive

Descriptive = describe a certain quality / trait of the product
“Lektronic” for electronic goods
“Grand Canyon West” for tourist services at the Grand Canyon Generic / Descriptive Register with the Pennsylvania Department of State Bureau of Corporations and Charitable Organizations

File a form, and pay the fee of $50
http://www.portal.state.pa.us/portal/server.pt/community/corporations/12457/registration_of_a_trademark/571894

Renew your registration every 5 years

Requires actual use of the mark in the state.

Protection extends to geographic areas in which your mark is used (not necessarily statewide). Registration with the State of Pennsylvania To register your trademark with the PTO, you have to be using it
in “interstate commerce”

For goods, "interstate commerce" generally involves sending the goods across state lines with the mark displayed on the goods or the packaging for the goods.  With services, "interstate commerce" generally involves offering a service to customers in another state or rendering a service that affects interstate commerce (e.g., restaurants, gas stations, hotels).   Interstate Commerce Interstate Commerce requirement

No Generic or Descriptive Trademarks allowed

Your Trademark cannot be confusingly similar to someone else’s Trademark Obstacles to Registration with the PTO Register in each “class” for which you use your Name/Logo.

Registration costs $275 for each class you register your trademark in.

Weigh the cost of trademark protection against the value of what you’re protecting. Registering Your Name with the PTO Corporate Registration with your State does not protect the name of your business as a Trademark

Owning a domain name does not protect it as a Trademark

Even if you’ve registered the name of your business with the State Department of Commerce, or if you’re using the name of your business as a domain name, you still have to register it as a Trademark to protect it Do You Need to Register? Public notice of your claim of ownership of the mark;
A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide ;
The ability to bring an action concerning the mark in federal court;
The use of the U.S. registration as a basis to obtain registration in foreign countries;
The ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods;
The right to use the federal registration symbol ®
Listing in the United States Patent and Trademark Office’s online databases Benefits of Registration with the PTO Register your Name/Logo with the Patent and Trademark Office
http://www.uspto.gov/trademarks/index.jsp

Register your Name/Logo with the State of Pennsylvania
http://www.portal.state.pa.us/portal/server.pt/community/corporations/12457/registration_of_a_trademark/571894

Continue to use your Name/Logo as Trademarks How to Protect your Name and Logo as Trademarks NIKE Font, Style, Color and Logos can all be proteced as aspects of a trademark. Many Aspects of Your Name and Logo can be Protected as Trademarks “Big Mac” is a trademark “McDonald’s” is a service mark Your business’s name and logo is how you brand the services you offer to customers.
Protecting your name and logo prevents confusion between your business and others.
Prevent others from benefiting from the customer loyalty you’ve worked hard to build. The Importance of Protecting Your Brand Your business’s name and logo can be protected as Trademarks™ and Service Marks℠

Trademarks protect the names of individual goods

Service Marks protect the name of the entire service you offer Trademarks Top Five Takeaways Police your marks and control your brand’s image.
Inexpensive Solutions:
Create a patrol policy.
Frequently check the PTO website for recent Trademark registrations.
Set up a Google Alert, Tweet Deck.
Determine which uses are harmful and which are helpful.
Inexpensive Solutions:
Contact the infringer directly and ask them to remove infringing content.
Use social media sites’ reporting mechanisms. Protect Your Content Online Social Media Sites
The Fair Use Doctrine: a flexible set of rules that permits use of works without permission or payment.

Fair Use Factors
(1) Purpose and character of the use;
(2) Nature of the copyrighted work;
(3) Amount and substantiality of what was taken;
(4) Effect on the potential market for the work. When Creating Content, Respect the Rights of Others Only use content that is original to you or work that you have permission to use. When Creating Content, Respect the Rights of Others Register ASAP;

Register with an ICANN Accredited Service;

Remember that a Domain Name is just an address;

Keep in mind that domain names are difficult to protect. Obtaining a Domain Name IP in Cyberspace When Creating Content, Respect the Rights of Others Copyright Elements
Written Content: blog posts, menu, Bios, etc.
Photographs, designs, images
Trademarked Elements
Name, logo, marks
Remember not to reveal trade secrets! Protecting Website Content Attribution is not enough! Alternatives:
Ask the creator directly.
Use free clip art or images under a Creative Commons License permitting commercial uses. Good Luck, Sam Misappropriation includes the acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by “improper means.” Misappropriation
(1) the extent to which the information is known outside the owner's business;

(2) the extent to which it is known by employees and others involved in the owner's business;

(3) the extent of measures taken by the owner to guard the secrecy of the information;

(4) the value of the information to the owner and to his competitors;

(5) the amount of effort or money expended by the owner in developing the information; and

(6) the ease or difficulty with which the information could be properly acquired or duplicated by others. What is a Trade Secret: Factor Courts Consider Christopher M's Hand Poured Fudge, Inc.
v.
Hennon
Injunctive Relief

Money Damages

Attorneys' Fees Remedies Improper means includes, but is not limited to, theft, bribery, misrepresentation, or breach of a duty to maintain secrecy.

However, trade secrets may be legally discovered by the following proper means:
Independent invention
“Reverse engineering", that is, starting with the known product and working backward to find the method by which it was developed (assuming the reverse engineering is not prohibited by contract)
Observing the item in public use or on public display
Obtaining the trade secret from published literature Improper Means As we've discussed, trade secrets are protected by maintaining their secrecy.

There are situations when, despite reasonable efforts, secrets are "leaked."

The Pennsylvania Uniform Trade Secret Act offers protection against “misappropriation” of trade secrets. So I Have A Trade Secret…Now What? Trade Secrets: Example The Pennsylvania Uniform Trade Secret Act (“PUTSA”) defines a Trade Secret as: “Information, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that:

(1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. What is a Trade Secret? One of the special qualities of trade secrets is that they do not expire. Patents and copyrights expire, but trade secrets, if kept secret, live on forever.

Even when available, a business would not want to apply for a patent or copyright for certain secrets that will always be central to the core of the business. The Importance of Protecting Trade Secrets 1. Trade secret laws protect the ideas themselves, not just its tangible form.

2. Trade secrets are valuable because they are secrets.

3. Reasonable steps should be taken to ensure secrets are not disclosed to the public such as limiting the number of people with knowledge of the secret and maintaining written recipes in a file labeled "confidential."

4. Employee handbook should make clear that secret recipes, processes, etc. belong to the business and are not to be used outside of it.

5. As long as the information is kept secret, trade secret protection lasts forever. Five Takeaways for Trade Secret Protection Trade Secrets: Example Trademark: Protecting Your Brand A trademark is a word, phrase, symbol or design, or a
combination thereof, that identifies and distinguishes
the source of the goods or services of one party from those of
others. 1. Register your domain name, twitter handle, etc. ASAP
2. Remember a domain name is just an address
3. Respect the IP rights of others online
4. Read terms & conditions of social media sites
5. Create a policy to patrol your marks Five Takeaways of Copyright Protection By putting a copyright notice on your work, you inform the public that your work is protected by copyright.

Notice allows someone to contact you for permission to use your work.

Notice also limits the ability of someone who infringes your work to claim they didn't know of the copyright's existence. Benefits of Copyright Notice Under the Copyright Act, the owner of a copyrighted work has the exclusive right to publish, copy or otherwise reproduce the work and to distribute the work publicly.

Under the Act, a copyright is protectable throughout the life of the author plus 70 years after death. U.S. Copyright Act Actual Damages

Statutory Damages

Attorney’s Fees and Costs If Someone Infringes Your Copyright Registering a copyright in your work with the U.S. Copyright Office provides the following advantages:

A public record of your copyright claim in your work: A public record serves as an even stronger notice of your ownership claim; notice is provided to the entire world and is not limited to those who see your work with the copyright notice attached.

The ability to file suit to enforce copyright in federal court: You must file an application for registration before you can sue, even if the infringement has already occurred.

Evidence that your copyright is valid: Filing your registration provides prima facie evidence of the validity of your copyright. This puts you in a stronger position if the validity of your copyright is ever challenged. Benefits of Copyright Registration Copyright law covers an extraordinarily broad range of creative work that can be written down or otherwise captured in a tangible medium:
Literary works
Musical works
Dramatic works
Pictorial, graphic, and sculptural works
Audiovisual works
Sound recordings
Architectural works What is Protectable Under Copyright Law? Copyright: Protecting Your Menu The Copyright Act provides that copyright protects an author’s work from the time the work is “fixed in a tangible medium of expression…from which [it] can be perceived reproduced, or otherwise communicated . . . .”

So, when words are put on paper, they’re copyrighted without any further action. This includes employee works created in the regular course of employment.

If an independent contractor creates the work for you, it is necessary to sign an agreement stating that is a "work for hire" in order to obtain ownership of the copyrighted work.

Although you do not need to use a copyright notice (“©”) or register your work in order to effectuate a copyright, notice and registration do provide a number of benefits. How to Copyright Original Written Materials 1. Consider registering the name of your company and your logo as trademarks with the PTO or with the state.

2. Before attempting to register your name or logo as trademarks take the time to search for similar trademarks.

3. Using a similar name or logo to a competitor’s trademark may force you to change the name of your company and expose you to lawsuits.

4. Registering a trademark is not free, weigh the value of what you’re protecting against the cost of protecting it.

5. Trademark protection is a sword not a shield, you need to police your trademark to prevent others from using it. Five Takeaways on Trademark Protection 1. Copyright protects the work itself, not the underlying idea.

2. Copyright protection attaches as soon the work is created in a tangible form, such as on paper or on a website.

3. Although you do not need to use a copyright notice or register your work in order to obtain copyright protection, notice and registration provide a number of benefits.

4. If someone else is creating the menu for you, make sure you have them sign an agreement stating that the work is a "work for hire" with all copyright ownership rights belonging to you.

5. As with all intellectual property protection, there are business decisions involved in determining how aggressively to pursue remedies.
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