Marc Repro

Marc Repro

According to the Ministry of Commerce, losses for U.S. companies counterfeiting of consumer products brand is estimated at 200 billion dollars per year. A Draft Model Law of the mark by the International Association for brands and now winds through the legislative process in California, includes a provision which appears to be an attempt to curb growing company yet.

The proposed new law trademark provides the owner a registered trademark of State May sue for infringement against individuals who "knowingly facilitate, enable, or otherwise support anyone to manufacture, use, distribute, display or sell any product or service any reproduction, counterfeit, copy or imitation of a mark in this chapter without the consent of the registrant. Â "Under the new trademark law, a person who is alleged to have acted knowingly if that person continues to participate in the activity in question after the delivery and receipt of a Cease and Desist letter of application containing certain Language and Information.

For brick and mortar business, this provision seems entirely reasonable. If an owner leases space sales retail company receives notice of a trademark owner, the owner has the opportunity to visit the property and investigate the complaint. In addition, a Swap Meet operator receiving the order for termination may investigate the complaint and, presumably after complained of inspecting the property, would be able to determine if the goods are infringing or legitimate. Given the ability to investigate in any case reasonably offense, it is reasonable that the people as owners and operators Swap Meet assume some responsibility for the goods sold in their premises. However, the question now arises of Internet activists, like the Electronic Frontier Foundation is the way this provision is played in cyberspace.

While companies like Google, Yahoo and eBay have a sufficient legal department to handle the expected influx of Cease and Desist letters, small suppliers would be difficult to cope with receiving a large number of cease and desist letters to a cost effective manner. Rather than face litigation and any unfavorable decision is probable that a small service provider prefers to cancel the alleged infringer.

Cease and Desist letters sent by californiae proposed new trademark law is related in some way according to noticesÂ Â "removal" under the Digital Millennium Copyright Act The provisions of the Dismantling of the DMCA essentially forces an ISP for access to those offending material is owned by the applicant or otherwise against the loss of immunity against allegations infringement. Similarly, under legislation proposed marks, an ISP that receives a request to cease and desist may face a lawsuit for trademark infringement if it continues to provide access to the offender or also continues to facilitate illegal activities.

What What if the alleged infringer is not involved in any illegal activity, or the complaint relates partly by the desire to interfere competition? Under the DMCA, the alleged offender may send the ISP a counter claiming non-infringement. If the ISP receives a notice of a suitable prevents the ISP blocks access to the complaint maintains equipment and its immunity from infringement. However, under trademark law if the proposal stresses that the alleged offender is not involved in any illegal activity to the ISP is stuck between the proverbial rock and a hard place, the ISP is free to decide what to do. If the ISP considers that the alleged offender, who also may be clients of ISPA, but thereafter prove incorrect, the ISPs could face liability for infringement. If the end customer ISPs and later determined that his client did not lead unlawful activity, the ISPs could face a breach of contract. Even if the ISP has language in his contract that allows you to terminate the contract, the customer, Firing a client is not good for business.

In the context of litigation or the impact the shooting of a customer ISPs and other service providers and would not terminate a contract dispute after face. The owner of the trademark could unscrupulously exploit this situation by sending letters to cease and desist to stop honest comparative advertising, but negative or other use of infringing its trademark. To unless the legislature of California over the trademark law amends its proposals to address the situation untenable and ISP service providers have been set, intimidation trademark owner is certain to occur.

Scott Hervey is a corporate attorney whose practice focuses on technology and entertainment/new media companies, as well as brand driven companies. With exceptional skill and expertise in the field of intellectual property law, Scott has led his clients through hundreds of matters involving complex technology acquisitions and licensing, financings, and other transactions. You can view Scott’s full provile at http://www.weintraub.com/ScottHervey.html

Scott is responsible for the management of the domestic and international trademark portfolio of all of the firmÂ’s clients. He has successfully represented an international gaming company, a world renowned Las Vegas hotel, a publicly traded medical device company and a progressive biotechnology company in the domestic and international trademark registration filings covering thousands of trademarks. Scott also oversees all trademark protection matters, including trademark infringement litigation, UDRP / domain name infringement arbitration, and proceedings before the United States Patent and Trademark Office and Trademark Trial and Appeals Board.

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