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Ticket Scalping: A Victimless Crime?
By Jeff Howard

I admit it. Many, many years ago I purchased a ticket from
a ticket scalper outside Texas Stadium. If memory serves
correct, I paid $70 for a ticket with a face value around
$15. Like I said it was many, many years ago, and I was
young and naive.

At the time I felt relieved to have a ticket. The game was
a sell out, but as soon as I found my seat, I felt cheated.
Let’s just say it was a very bad seat. One of the worst in
the house to be sure, but still good enough for me to see
the visiting Chicago Bears destroy Dallas 44-0!

My bad experience aside, many fans see scalpers as their
only option for getting into sold out events. At worst
they see ticket scalping as a low-level, victimless crime.

I would suggest, however, that the fact prove otherwise.

Investigative reports around the country have uncovered
highly organized groups of professional ticket scalpers who
control street-level ticket sales in many major league
sports cities. Often these men have ties to organized
crime and lengthy criminal records. As seasoned criminals
they are quick to threaten a customer or turn violent when
a transaction doesn’t go their way.

Certainly not all the scalpers seen hawking tickets
outside your local stadium fall into this category, but
the threat is widespread and very real.

Using various techniques, these groups acquire tickets
from season ticket holders, ticket agencies, and even the
team’s box office. In some cases they work closely with
team employees to ensure a constant supply of tickets.
They also aggressively solicit fans seeking to buy spare
tickets at discounted prices.

Sadly this leaves the typical fan literally on the outside
looking in. Fans who can’t get tickets through the more
traditional channels are forced to deal with these groups
if they want to see a game in person.

As always I recommend you avoid scalpers if at all
possible. I agree there may be certain situations when you
have no choice, but don’t make it a habit. In my opinion
there are just too many risks, and besides you can get
tickets to just about any event without them as long as
you’re prepared to put a little effort into it.

With that said, if you decide to approach one outside the
stadium, please remember who you’re dealing with. This
person might be a convicted drug dealer, thief, or worse a
violent criminal. In addition, he might have ties to
organized crime. Above all use your common sense and
proceed with caution.

I’m sure the majority of fans who purchase tickets from a
scalper don’t suffer from the level of ‘buyer’s remorse’
I felt inside Texas Stadium, and they certainly don’t
experience anything close to assault and battery. However,
threats, intimidation and violence have become a part of
the ticket scalping business in many cities so please be
careful out there.

Copyright 2005 All Rights Reserved
************************************************
Jeff Howard publishes SportsTicketSecrets Tip Sheet, a
monthly ezine providing tips, news, information, and
advice for all sports fans who are tired of watching the
“BIG” games on TV. To subscribe and receive a preview of
his latest publication “Super Bowl Ticket Secrets” visit
http://www.superbowlticketsecrets.com
************************************************

How to Avoid “Stepping over the Line”* (ie. infringing it)?
..so you won’t upset other writers.

* that’s a metaphor, btw.

PLAGIARISM: Wow - what
a big word, like “marmalade” or “earth-moving-contractor”. Hope I
spelt it correctly! PLAGIARISM is deliberately copying someone
else’s work and putting your name to it. A couple of years ago,
there was a celebrated case in my former homeland, South Africa.
A university lecturer had copied extracts from American author,
Joseph Leyleveld’s excellent book, MOVE YOUR SHADOW. ( An
excellent book, by the way!). A big extract was taken word for
word and he was discovered (and was forced to resign his
prestigious position). Naughty naughty!

I’ve just read a report of how a fine piece of descriptive writing by an academic at one of the best Universities in South Africa appeared almost verbatim in a novel by a prominent South African author. The passages in question were nearly identical in both works. Another well-known South African journalist also recently “faithfully” reproduced the work of another writer by uplifting lage tracts of another’s creativity. Seems to be a lot of plagiarism occuring in “the beloved country” South Africa!

There has also been a bit
of a furore (nice word!) with celebrated American historian
Stephen Ambrose using another writer’s work - word for word.
Rather humiliating and embarrassing for him getting “caught out”
(can I end a sentence with a “preppie”?). Plagiarism seems to be
quite prevalent amongst songwriters, like George Michael, but bet
there are many writers too. “Prima donnas”! A final few words in
summary on the subject of plagiarism… When deciding whether you
are perhaps infringing copyright and/or plagiarism, ask yourself
these important questions:

1. “If I was the author, how would I feel about
someone ‘copying my hard-worked for writing’ ?” Sometimes
lifting it outright ‘word-for-word’ with “zilch” acknowledgement..

2. “Has the writer made a genuine effort to put
the material into his/her own words?”
and

3. “Has he/she just
copied or borrowed my ideas and other points from my writing?”

4. Do you feel someone has deliberately set out to “steal” another authors work,
“purporting” (is there such a word?) to be their original piece of creativity?

*

I think “imitation is the sincerest form of flattery”! Still don’t
plagiarise my work, please! DEFAMATION: DEFAMATION (not a bodily
function - OOPS, ER ! )… but if you do, you will soon be really
deep in the “rich brown stuff”. Always keep a good name. Avoid
libel suits (must replace mine someday the lot/financial fortunes
of the writer!). Never defame anyone in your writing, especially
after they’ve “fallen off their perch” (ie. after they are
deceased - thanks Monty Python). As writers we are very
privileged people, who can directly influence public opinion.
Most other people don’t have the opportunity to defend themselves
through the avenue of publicly written words. So it’s a heavy
responsibility we writers have to convey the truth (is that
subjective or absolute? - that’s an entire essay in itself). Well our opinion of it, anyway!
If you haven’t a kind word to say
against someone, don’t say it at all. “Mr Goody Goody two-shoes”
(but in my crazy travel book about my European adventures
HERE,THERE and EVERYWHERE, you’ll find out why I only had one!).
Hard sometimes, when you are reporting the facts, as you saw them
and want to market your work sometimes; because controversy
always sells…like bad news headlines sell newspapers. Most of
the above information is based on pure common-sense (what’s
that?) and using your discernment. However, many writers don’t
have an abundance of the aforementioned qualities in making judgements.

“Writers should also be business-people and try to think like them;
but then any business-person would have the good sense not to
become a writer.”
- me (but originally thought borrowed from an unknown author).

A word (or two or three) of advice regarding plagiarism… In writing follow the following (sounds “funny” that!) creeds: When in doubt
about what course to take (not English III), just ask yourself
this: If you were the author, would you like someone else copying
your work, or saying ‘those things’ about you. Use judicious
judgement (note alliteration) and when in doubt, rather err on
the side of caution. Even if you have been badly hurt by someone
in the past, don’t be tempted to retaliate and take vengeance for
“the sordid past” through your words. Everyone has made mistakes
they may regret in life, so think the best of people. At least
try! Enough moralising and back to my original topic.

We are all human (although many writers are “abnormally human”) and we all do make many mistakes down the “river of life” (or should I have said “as we negotiate the rapids of life”? - that’s a metaphor, btw). Stop rambling “rose” and get back to what you were writing about, Craig. Yes, plagiarism….

If you do happen to inadvertantly (big word, eh - so should I rather have said “unintentionally”?) palagiarise another author’s work, admit your error and apologise to them. (That happened to me once with a well-known author….
and I was the culprit early on in my writing “career”). Opps, er sorry!

A final few words to conclude on the subjects of plagiarism and defamation.
One Law of Professional Plagiarism, which may be of importance among accomplished plagiarists states that: “If it’s worth stealing, it’s worth stealing accurately. So on no account simply tinker with another writer’s words. Always acknowledge the lifting verbatim all writing of others (not only the 400 words + normally accepted as the limit, which may be freely reproduced without seeking authorisation).

(Author’s Note: These points were based on a report in the South African Weekly Mail and Guardian online newspaper - 4th Feb 2005, then re-written by me)

I believe INTENT is the key here (as with the law). Did an author
deliberately set out to copy some other writer’s work, intending to pass it off as their own creation? For whatever reason: whether ego, self satisfaction, self-agrandisement* etc.

Now that’s a big impressive word and it’s the first time I’ve used it,
so hope I spelt it correctly (in either British or American English)!
After that little “ramble” and to end off this piece, my advice is simply….

Don’t try to camouflage your pilfering by means of tiny alterations, cunningly inserted here and there. Use quotation marks and give due accreditation of your source. Be ethical at all times. Always write with ABSOLUTE HONESTY (from your particular
perspective), in utmost GOOD FAITH and INTEGRITY…and as the
proverb wisely advises: “Do unto others, as you would have them
do unto you.” Then you can’t go wrong in your writing.

Happy writing down the creative path of self discovery

Craig Lock
http://www.craiglock.com

P.S: “Plagiarism occurs, when
someone else steals your work. When many people do, it’s called research!”

“If you have integrity, nothing else matters.
If you don’t have integrity, nothing else matters.”
- Alan K. Simpson

Books by Craig Lock are available at: http://kompuwiz.com/kompustore

* Hard copies and e-books - fiction and non-fiction:
self help, personal growth, inspiration, travel, humour,
novels and money books.

Writing Course: http://www.craiglock.com/downloads/cwcourse.html
(the “original” online creative writing course)

WHAT IS COPYRIGHT AND HOW DO YOU PROTECT IT?

by Craig Lock

INTRODUCTION AND AUTHOR’S COMMENT:

This article (which is an extract from the writing course I ran
at the local polytechnic was developed about seven years ago) was
written for the “OFFLINE and real world” here in New Zealand and
the United Kingdom… well before I knew about the “amazing
intricate mysteries of the net”. However, I believe, the
principles should also be applied (perhaps not so stringently) to
the “Wild West of cyberspace”. (That’s a metaphor, by the way!)
The article covers general principles of copyright and may also
be applied world-wide in writing for the www, “metinks”…

Publishing on the world wide web (writing articles on your field
of expertise is a most effective form of internet marketing,
incidentally!) is very different to the “real world”. In the
online “wild west culture” standard copyright rules are far
harder to enforce, as the subject of copyright is constantly
evolving and rapidly changing, like the “net” itself. It appears
that on the www virtually “anything goes” with many varied
opinions and it’s very hard to get common rulings and agreement
on this complex issue.

My advice would be to apply the same “strict” rules regarding
copyright, when writing online as offline, as I explain in this
article.

With these guidelines we can all do our bit to bring some order
into the “lawlessness” prevalent in copying other people’s work
on the www. By following these guidelines, I’m sure no-one will
be able to criticise “sqeaky clean you”.

After that “rather rambling rose pre-amble”, enough said…

Only joking! Here is my article…

COPYRIGHT:

What is copyright? No one can reproduce your work with- out your
permission - not even a personal letter. How much of a writer’s
work can be legitimately used? A poem of 40-50 words is generally
considered to be OK. Usually one is not allowed to copy
substantial amounts of another writer’s work without their
express permission.

* But then what is meant by the word “substantial”? It is widely
open to interpretation and opens up a literary and legal
“minefield” (that’s a metaphor, by the way!).

There are no hard and fast guidelines about the rule of copy-
right. The following is a rough ‘rule of thumb’:

You can take approximately 300 words from a book or any other
lengthy work of writing. You can also quote 150 words from a
magazine article. Fifty (50) words quoted from a news- paper
article is generally considered to be “fair use” without
requiring either permission or a fee. Copyright lasts 50 years
after your death.

You can use what is termed ‘fair dealing’ in writing reports, or
research material. I always advise acknowledging sources in your
reference section.

It’s all very unclear - the entire subject of copyright, so I
won’t say too much. Just use your common sense and discretion (if
you have some)… and be HONEST by following your heart. Don’t
copy other author’s material and purport (nice word, eh?) to be
the author. One should not paraphrase a substantial amount of
another author’s writing, nor use that writer’s points without
due ACKNOWLEDGMENT. Hint hint!

If you get into a dispute (oops!), there are specialised trade
and copyright laywers (or solicitors as they call them here in
‘genteel and civilised’ NZ) in the big centres. If in doubt, get
advice…then DON’T infringe copyright.

Send requests to use material to the permissions editor of a
magazine, newspaper or book publisher. Book publishers usually
have a small department which deals solely in this. Give them as
much information as possible about your article or book, your
publisher, as well as other books or articles written by you.
Tell them what quotes you want to use and why and so on. Say you
will give them due acknowledgement in your writing. They’ll
usually oblige. There is sometimes a small fee payable. Always
acknowledge the sources of your quotations - then you’ve kept
your word, your side of the “bargain”. Also keep copies of your
correspondence in the event of an unlikely dispute.

Now a bit for Kiwis* (and Brits)… * = New Zealanders, but the
Kiwi is a flightless bird, in case you are interested.

No one can reproduce your work without your permission. New
Zealand law closely follows British law. In NZ copyright is
usually protected for 50 years after the author’s death. If a
book is published posthumously (nice long word that), copyright
extends for 75 years after the time of the author’s death. After
that the work can be freely used by anyone. No hope for me
then… but perhaps my great great grandchildren!

As from 1989, New Zealand copyright law requires 3 copies of
every NZ publication to go to the National Library in Wellington.
One of which goes to the Alexander Turnbull Library, one to the
National Library for bibliographical purposes, while the third is
kept at the Parliamentary Library in the capital in Wellington.

The following is a simple tip on the easist way to register
copyright. Send a letter to yourself by registered mail, in
which you certify that you are the author of the work. Keep in a
safe place. If you really want, you could lodge the unopened
letter with your bank or lawyer (solicitor) for safekeeping, but
I wouldn’t say that option is necessary. I’d just keep the letter
with my personal documents, proving ownership of your writing.
(While you are about it, you could perhaps send some Christmas or
birthday cards to yourself, or like me, join “Rent-a-Friend”).
Enough silly digression, now Craig and back to the boring subject
of copyright (you are nearly finished pouring forth)…

Sometimes a publisher might want copyright in exchange for a fee.
My advice: It’s your work of art. So always retain your
copyright… unless you are in dire financial straits, like this
aspiring writer*.

In the next lesson (and article) we will look at the subject of
plagiarism . Wow, that’s a big word and I hope I spelt it
correctly. No, I don’t mind you using my material…even though
it may be quite hard for another “writer” to closely copy my
rather “crazy/wacky style of hopefully informing and entertaining
at the same time”. (That is my mission in my writings, btw!)
Anyway, isn’t “imitation the sincerest form of flattery”?

Happy writing

Craig Lock
http://www.craiglock.com

“How Patent Attorneys deal with Intellectual Property” - by Paul Johnson ==========================================================
Patent attorneys are professionally licensed attorneys who are allowed to stand before and operate within the United States Patent and Trademark Office. Contrasting, Patent Agents are not necessarily lawyers, but are allowed to practice within these same offices. Many agents come from different backgrounds, not necessarily law. To be clear, a skilled patent attorney or agent doesn’t necessarily work on trademark issues. In fact, patents and trademarks are detached unities of the same government branch holding to the same idea-the protection of an inventor’s invention or a business’s identity. Patents and trademarks are officially filed for and observed, but do not require the same type (or amount) of work in order to obtain one or the other. When looking to hire a patent attorney or patent agent, you may find one that provides services that the other does not and vice-versa. If you are planning to litigate, or planning to pursue a patent claim in court, then a patent attorney will have the credentials necessary to stand in front of a court or law, but perhaps not the right to work with patent applications. However, a patent agent will have the technical knowledge and know-how to work with and/or prosecute patent applications, but will not be able to litigate in a court outside the USPTO. This difficult choice is left to the discretion of the inventor. It most often depends if she or he believes that there is a possibility that the patent will be rejected, which will bring on possible litigation. If this is the case, it might be important to hire an experienced patent attorney who has dealt with such cases and will know exactly how to handle such a case in court. Consequently, it might be better to hire an experienced patent agent who would know how to properly word the patent application (a former scientist, for example, who understands what you’re requesting) so as it won’t be rejected in the first place, but rather accepted based on its originality and well-documented approach. In any regard, whomever you wish to work with, she or he will have to be both qualified and proficient enough to move throughout the mounds of legal work and research that obtaining a patent requires. ===========================================================
Discover valuable advice and information about patent searches and applications. Website contains useful articles about us patent searches & applications. Click ==> http://www.us-patentsearch.com/patent-attorney.html

Peter Rabbit and IP Protection of Fictional Characters in China by Jordi Llopis and Grace Wang

INTRODUCTION

In late September of last year, Beijing’s No 1 Intermediate People’s Court heard a case involving the Chinese Press using pictures of Beatrix Potter’s fictional character, Peter Rabbit, on books. The British company Frederick Warne Co. Ltd. alleged infringement upon their trademark of Peter Rabbit illustrations, which was registered in 1994 (a decision has not yet been reached in the case).

The rights attached to a fictional character can generally be referred to as “property rights”. As is the case with most property, those rights include the right to use a fictional character’s name, image, appearance, etc., to receive the benefits resulting thereof and the right to dispose of it. These rights are in principle owned by the creator of that character unless lawfully transferred, created in the course of his professional activity for his employer, commissioned to be created, or conferred on the creator’s descendants for the exploitation of his/her work.

The secondary exploitation of a fictional character’s essential features by its creator in relation to various goods and/or services to exploit consumers’ affinity with that character can be defined as character merchandising. This merchandising activity is very seldom conducted by the creator of the fictional character, and thus the various property rights vesting in the character are subjected to contracts which authorize one or several interested third parties (the merchandisers) to use the character. The main economic rights relevant to the merchandising of characters are the rights of reproduction, adaptation and communication to the public in any manner or form–books, for example.

Beatrix Potter was a pioneer in the secondary exploitation of literary works. The animal characters from books Peter Rabbit and Squirrel Nutkin were recreated and are still being recreated as still as soft toys or other articles for children. This merchandising successfully continues today, with a wider range of merchandise. On May 25th, 1919, Frederick Warne & Company Limited was registered. Although the imprint is still used by Penguin Books, Frederick Warne & Company Ltd really ceased to exist on December 31st, 1984.

LEGAL PROTECTION

The rights attached to a character may enjoy legal protection in a number of forms, either automatically (copyright), or following an act before a competent authority (for example, trademark or industrial design registration).

Copyright

Copyright protection starts on the date of creation of the work as expressed in a material form such as writings, drawings, etc. Contrary to industrial property rights such as trademarks or industrial designs, a work enjoying copyright protection is protected against all unauthorized uses, irrespective of the goods or services covered by each use. Generally, no one may exercise economic or exploitation rights without the authorization of the copyright owner. Needless to say, enforceability of such IP rights is not dependent upon effective registration or patent granting, although there are public registrars to this effect that provide evidence of the date of creation of such works.

It is generally accepted that copyright must be recognized and protected at least throughout the life of the author. After his/her death, his/her work continues to be protected for a certain time. Under Article 21 of China’s Copyright Law, copyright protection extends through the lifetime of the author and 50 years after the author’s death. Article 21 later states in paragraph two that “where the copyright belongs to a legal entity… the period shall be fifty years provided that any such work has not been published within fifty years after the completion of its creation”. Upon expiry of the term of protection, the work falls into the public domain. It is no longer protected by copyright and can be used by anyone without authorization.

It should, however, be noted that, through other forms of legal protection (for example, trademark protection), some works may continue to be protected against unauthorized use. Because Beatrix Potter created the fictional character of Peter Rabbit herself, she enjoyed the copyrights until her death in 1943. Afterwards, the copyright was probably managed by her descendants unless previously transferred by an act of law thereafter for the following 50 years.

Copyright vs. Trademark (Effectiveness in its Use for Fictional Characters)

When does a fictional character become a trademark in a strict sense? A mark is a symbol which distinguishes the goods or services of one entity from the goods or services of another entity, that is, it is intended to indicate who is responsible for the goods placed before the public. There may be many makers or sellers of the same goods, and they may all use different marks which all consist of pictorial devices, without any words at all. The consumers distinguish between the goods of competing traders solely by means of their marks on the basis of expected properties or a certain quality. When any consumer tries to purchase one of these books online, a notification comes up on the screen: “The Penguin Online bookshop is the recommended online shop from which to purchase Beatrix Potter titles”. This is a good instance of the natural way trademarks work: Penguin Publishers is the industrial origin of the books, and the little logo of a penguin appears in these goods to tell consumers which is the publishing company.

For that to be possible, the marks must be clearly recognizable. In other words, marks must be distinctive in order to apply for registration, as referred to in Articles 9 and 11 of the PRC’s Trademark Law. But then, how distinctive is a trademark consisting of a globally known fictional character first published and thus introduced to the general public in 1902? Article 9 of the Trademark Law sets forth the condition that the applied trademark “shall not conflict with any other legal rights acquired earlier by others”. It could be argued that when a fictional character’s copyright expires and falls into the public domain, it forms part of that ‘conflicting’ legal art and rights, as it is a legal text (Copyright Law) which concedes this right upon citizens.

A second point on the effectiveness of the PRC trademark law for fictional characters is that a trademark must be used in the same way it is registered and for the goods or services so elected, as set forth in Article 51 of PRC’s Trademark Law. It should be noted that, mainly in the case of cartoon strips and animated cartoons, copyright protects each different original pose adopted by the character. The same cannot be expected from a trademark, which, one can argue, makes it rather impossible for any trademark consisting of a fictional character of public domain to be distinctive at all.

In a further argument on this issue, the PRC Trademark Law states in Article 1 the purposes of trademark registration such as “…pressing producers and sellers to guarantee the quality of goods and services, maintaining the repute of trademarks, safeguarding the interests of consumers…” However, neither a merchandising agency nor the creator of a character will themselves be engaged in the manufacture or marketing of secondary products, and it will therefore be difficult for them to acquire trademark rights over a fictional character, as they will not themselves be dealing with the goods or services and be thus held liable for their quality as stated in Article 7 of the Trademark Law which sets forth the trademark user’s liability for the quality of goods to which trademarks were applied. And even if a merchandising agency or the creator of the character were involved in producing and selling at some levels, Article 40 sets upon the licensor the duty of supervising the quality of such goods, and the obligation to indicate “the name of the licensee and the origin of the goods”. So here again, trademarks are meant to work as a link between the product and its industrial origin, which ultimately provides useful information to the consumers.

Use of the Mark. The trend is more favorable here (Article 7) because the PRC’s Trademark Law allows a mark to be applied to an unlimited number of goods or services, independent of the true activity of the applicant and with no account taken of the non-use of such a registered mark. Most legislation will contain provisions relating to the effective use of a mark. It may sometimes be provided that an applicant or a holder should, by means of a statement or declaration, prove to the competent authority that the mark is being used (excluding token or ornamental use) at the time of the application (as a condition for registration), at regular intervals after registration and at the time of renewal. Furthermore, most countries provide that any person may request, before the court, that a given registered mark should be totally or partially invalidated and removed because of non-use.

The PRC’s TM Law does provide that a use shall not cease for a period longer than three years, however unlike other legal texts (such as that of the Community Trademark Regulation) it does not contain any provision requiring that use to be ‘effective’ in relation to the goods and services registered under that TM, nor a requirement upon the user to submit proof – if the applicant so requests – of use in case of opposition to a later trademark application. In short, PRC trademark law may only confer a rather limited protection, on the face of it, for so registered fictional characters.

Copyright vs. Design Patents

Cartoon characters such as those of Walt Disney or literary characters like those of Beatrix Potter are timelessly popular, such that they keep being regarded as what they indeed are: story tale characters. Drawings or cartoons (two-dimensional works) of literary works may also be protected independently of copyright protection as design patents, provided they meet the substantive requirements. According to Article 23 of the PRC’S Patent Law, “Any design for which patent right may be granted must not be identical with and similar to any design which, before the date of filing, has been publicly disclosed in publications in the country or abroad or has been publicly used in the country, and must not be in conflict with any prior right of any other person.” In that respect, it should be emphasized that a work which is original is not necessarily new, since a graphic adaptation of an already existing literary character (whether or not it has fallen into the public domain) may qualify for copyright protection (for example, the literary characters Pinocchio or Cinderella adapted to cartoon form by the Walt Disney Company), but may fail to fulfill the novelty requirement. The same applies to the drawing of a common creature (for example, the cartoon character Bugs Bunny).

The Teletubbies (Tinky-Winky, Po, Dipsy, and Laa-Laa) are fictional characters whose copyright owner is Ragdoll Productions Ltd. – also a British company – from their creation in 1996. Unlike the situation with Peter Rabbit, Ragdoll Productions Ltd. is a legal entity that actually owns the copyright, which means that after 50 years from the first publication in 1996 those friendly characters will also enter the public domain. And again, these have also been subject to trademark registration in the European Union in 1999, and in the People’s Republic of China in 2000.

Once the design patent elapses, the industrial design will also fall in the public domain and may be used by anybody without authorization, unless the owner of the design can, for the same article, avail him/herself of a longer form of protection (copyright or registered mark).

Whereas in other countries copyright protection may be denied where a work is created with the intention of being exploited industrially and embodied in mass-produced articles, which is an inherent quality of works (drawings, dolls, puppets, robots, etc.) designed for merchandising, the PRC’s Copyright Law does not observe this circumstance, ultimately allowing an overlap between the notions of artistic works and industrial designs, where the two forms of protection are generally not available cumulatively at the same time.

Once an artistic work such as a fictional character is incorporated into any industrial or handicraft item including packaging, graphic symbols, etc, it becomes the outward appearance of that product and becomes and industrial design with limited protection. And if the copyrighted fictional character has been used for these purposes and has been made public as a result, the Chinese patent law in its Article 24 concedes a small grace period of 6 months to claim priority, and after that period has elapsed it will become estate of the art and will break the novelty of that design, which ultimately makes it impossible for the copyright owner to wait until the expiration of its copyright to then obtain a design patent.

CONCLUSION

All in all, the legislation on copyright, trademarks and industrial designs may be relevant in the context of the merchandising of fictional characters (as the Peter Rabbit case illustrates), in a desperate race to exclude competitors from using anything that may make goods look more attractive for consumers to purchase.

As discussed, design patents are likely the best option available to seek longer protection for a fictional character, and although trademark protection may be renewed without limit, its scope is 1) just as limited or narrow as that of the one conferred by design patents, and 2) even if respectively registered or granted, it may be left to a Judge to determine if the trademark is distinctive enough to what all consumers simply regard as a fictional character. However, IP rights do have their own different purpose, and shall be protected according to what the law says but not beyond it.
Established in 1992 as one of the first private law firms in China, Lehman, Lee & Xu employs a highly-experienced team of over 110 lawyers, patent and trademark agents representing both foreign and Chinese clients throughout China in a variety of enterprises. With branches in various Chinese cities including Beijing, Shanghai, Shenzhen and Hong Kong, Lehman, Lee & Xu is considered a leader of the re-established Chinese legal profession. The firm has been recognized by the media and the Chinese Ministry of Justice as one of the best law firms in China. For more information, please visit the firm’s website at www.lehmanlaw.com.

About the Author

Jordi Llopis and Grace Wang are attorneys in the Beijing office of Lehman, Lee & Xu.

Intellectual Property Defined by Nashville

Ignorance of the law excuses no one. If you are unaware of your law, then you are in for big trouble. To better understand what are your rights and duties, educate yourself.

Issues regarding intellectual property rights are an important topic of discussion as many things revolve around this theme. Knowing what an intellectual property is the first step in our education. The U.S. Department of State defines it as:

“Creative ideas and expressions of the human mind that possess commercial value and receive the legal protection of a property right. The major legal mechanisms for protecting intellectual property rights are copyrights, patents, and trademarks. Intellectual property rights enable owners to select who may access and use their property, and to protect it from unauthorized use.”

This definition gives emphasis on the word protect. Indeed, it is designed to extend protection to the creator of a certain creative work or a product. Legal provisions are installed to give the owner the exclusive right to control access and use of his property. The law provides for specific procedures when a violation of these rights is committed.

Copyrights and industrial property are two categories that make up intellectual property.

Copyright laws provide for the owner an exclusive right to control access of his creative work. Variations may exist with different countries but the basic idea is this.

Industrial property includes such things as patents and trademarks. A patent is defined as a legal grant issued by a government permitting an inventor to exclude others from making, using, or selling a claimed invention during the patent’s term. A trademark on the other hand is a name or symbol secured by legal registration that identifies a manufacturer’s or trader’s product or service and distinguishes it from other products and services.

Any infringement on these rights entitles the owner to a day in court. Filing a lawsuit is a must if you want to be compensated for the damages you have received. Of course you won’t know if you are already being violated unless you know what you’re rights are. There is a great need for us to be familiar with the concepts of intellectual property laws for us to know when we are being wronged and what needs to be done to address that wrong. Like they always say, “Knowledge is Power.”

About the Author

For additional legal information and inquiries about the article log on to http://www.attorneyservicesetc.com

“I Built a Better Mousetrap”– Advice on Protecting Your Creation With a U.S. Patent by Larry Denton

So, you built a better mousetrap. Now, how do your protect your “perfect” creation from being stolen by a Fortune 500 company? The answer lies in the United States Constitution which gives the U.S. Congress exclusive authority to grant patents for inventions. Patents on new inventions are not an automatic right. Instead, an inventor must apply and be granted a patent by the U.S. Patent and Trademark Office (USPTO), an agency of the U.S. Department of Commerce. The process is long, laborious and very time-consuming. How do you start the tedious process?

A U.S. patent is basically a contract between an inventor and the government. The U.S. patent laws were written to provide an incentive to inventors to create and publicly disclose their inventions. In exchange for full disclosure of an invention, the government grants the inventor the right to exclude others from making, selling or importing the patented invention.

There are three types of patents, they are: 1) utility patents which protect the way an article is used and works; 2) design patents which protects the way an article looks; and 3) plant patents issued for asexually reproducing plants.

In order to be patentable, an invention must useful, novel (new), and non-obvious–meaning that when viewed as a whole, the invention must not have been simply an obvious improvement in the invention’s field when viewed by one of ordinary skill in that particular field.

The patent application process generally involves three steps. First, the person (or corporation) seeking the patent must file an application with the Patent Office. In addition to including a detailed description of how to make and use the invention, the application must include patent claims–statements that define the scope of the invention which the inventor is attempting to protect. Once the application has been filed, a patent examiner will be assigned to review the claims and the rest of the application.

The second phase of the process begins with the patent examiner performing a “novelty search”–checking prior patents, and all the available literature to determine whether the invention is really novel and non-obvious. During the course of the patent application process, the patent examiner and the inventor (or his attorney) will communicate back and forth with one another to determine novelty and answer additional questions which may arise.

Finally, the examiner decides on the patentablility of the invention based on the information found during the novelty search. Assuming the examiner is eventually satisfied that the patent claims are narrow enough to distinguish it from “prior art,” and the inventor is satisfied that the claims are still broad enough to have value, the patent will then be issued.

Patent law does allow an inventor to “act for himself” in obtaining a patent, meaning the inventor can do everything himself. However, without some prior experience or some legal training there is the danger of applying for protection that is so broad that your patent is never issued, or is so specific that your invention is not fully protected.

Invention Development Organizations (IDOs) are private and public consulting and marketing businesses that have come into existence to help inventors bring their products to market, or to otherwise profit from their ideas. While many of these organizations are legitimate, some are not. Be extremely wary of any IDO that is willing to promote your invention or product without making a detailed inquiry into the merits of your idea and giving you a full range of options which you may pursue.

To fully protect your creative works and your potential profits, you should always consider obtaining the services of a competent and reliable patent attorney. While the costs may appear expensive, the protection offered by a U.S. patent for a commercially valuable invention more than justifies the cost.

Even after your patent has been granted, you may still require professional patent assistance. Patent professionals can monitor the marketplace for inventors (or copycats) who are infringing on your ideas. The strongest patent in the world is worthless if you do not ensure that it is being enforced.

About the Author

Larry Denton is a retired history teacher having taught 33 years at Hobson High in Hobson, Montana. He is currently Vice President of Elfin Enterprise, Inc., an Internet business providing information and resources on a number of timely topics. For a court room full of additional information and answers to your patent questions visit http://www.PatentPath.com

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Free Non Disclosure Form (NDA Form) by Jefferson Highway, General Counsel

Non Disclosure Agreements (NDAs, also known as ‘Confidentiality Agreements’) are an essential part of modern business. If you have a trade secret, an invention or a ‘good idea’, it can be worrying revealing the details to a third party because you never know if your idea may be stolen. For this reason, NDA forms are common. The problem is, most of them are long winded, running to 10 pages or more, and they very length of them makes it difficult sometimes to get your target to sign in the first place.

For this reason, we here at www.lawyersbench.com have come up with this ’short form’ NDA form you can use. It is short, unambiguous, and covers both parties, so you should find much less resistance when trying to get it signed. As always, www.lawyersbench.com recommend consulting your own lawyer in any legal matter.

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Non Disclosure Agreement
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Parties:-

A) COMPANY (or person) A (E.g. www.lawersbench.com)

B) COMPANY (or person) B (E.g. Jefferson Highway Esq)

Whereas:-

The parties possess valuable information, technical knowledge, experience and data of a secret and confidential nature relating to the field, all of which are regarded by them as commercial assets of considerable value; and
The parties are willing to disclose such information to each other on the condition that the recipient of the information does not disclose the same to any third party nor make use thereof in any manner except as set out below.

In consideration of such disclosure to each other, it is agreed by and between the parties hereto as follows;

1.The receiving party undertakes to treat as strictly confidential and not to divulge to any third party any of the information disclosed by the other and not to make use of any such information without the disclosing party’s prior written consent.

2.In the event of one party visiting any of the Establishments of the other party, the visiting party undertakes that any information relating to the field which may come to its knowledge as a result of any such visit, inclusive of the form, materials and design of various elements of any relevant plant and equipment which may be seen at such Establishments as well as all the plant as a whole, the methods of operation thereof and the various applications thereof, shall be kept strictly confidential and that any such information will not be divulged to any third party and will not be made use of in any way by the visiting party without the other party’s prior written consent.

3. The above undertaking shall not appy to:

a)Information which at the time of disclosure is published or otherwise generally available to the public.
b)Information which after disclosure by the disclosing party is published or becomes generally available to the public, otherwise than through any act or omission on the part of the receiving party.
c)Information which the receiving party can show was in its possession at the time of disclosure and which was not acquired directly from the disclosing party.
d)Information rightfully acquired from others who did not obtain it under the pledge of secrecy to the disclosing party.

4. The parties agree that after three years from the date hereof they shall each be relieved from all obligations under the Agreement and that after such period has expired they will rely on such patents as they may then own for the protection of any information disclosed to each other pursuant to this Agreement.

5. The terms of this Agreement shall be deemed to apply also to the servants or agents or legally associated entities of the receiving party who shall require their said servants or agents or legally associated entities to observe the foregoing obligations.

6.Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting either expressly or by implication, estoppel or otherwise, any license under any invention or patent now or hereafter owned by or controlled by the parties.

7. This agreement shall not be construed in any manner to be an obligation to enter into further contract or to reimburse the cost of any effort expended by either party.

8. This agreement shall be interpreted in accordance with the laws of the INSERT COUNTRY / STATE HERE.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives, effective as of the date hereof.

COMPANY A

By: _______________________________

Name: _____________________________

Title: ______________________________

Date: ______________________________

COMPANY B

By: _______________________________

Name: _____________________________

Title: ______________________________

Date: ______________________________

About the Author

Jeff writes short article about the law for www.lawyersbench.com a free site full of top legal advice and tips.