online defamation

This article goes over the challenges and obstacles faced by individuals and businesses dealing with the growing trend of false and malicious online defamation.

Dealing with false and malicious online defamation

Author: Megan Cassidy

In today's day and time false and malicious defamation is a reality and a potential nightmare for both individuals and businesses alike. On a daily basis company's and individuals get defamed on various websites in the form of reviews, forum comments, and consumer watchdog sites. The defamation can be a few angry comments or full large scale made up stories involving upper management and corporate entities. One would think that anyone who posts such reviews and comments would be easy to track down yet the anonymous nature of internet technologies make it almost impossible in most cases. One bad review and/or comment from an ex employeee, a disgruntled customer,and or a potential competitor can result in a reputation management crisis. So how does one deal with malicious online defamation designed to do damage? Should you go after the website that is showcasing the false and defamatory information? It is not easy. The law where it stands right now currently protects the 3rd party websites as they are not responsible for the content posted on them by their users. So suing the website at hand is not a viable solution as it is obvious in the case of Rip Off Report as they have been sued unsuccessfully many times. What next? Well one solution may be by subpoening the website(s) in question by using an attorney. Such an action can result you in getting the identity of the perpetuators involved. However if they are using a public wifi then you will gain nothing from the previously mentioned solution. What if they are indeed using a public wifi and cannot be tracked down by using a subpoena? Another solution may be to hire a defamation management company to get the negative information removed from the search results and/or possibly get the perpetuators tracked down by doing so intense online invstigation. Now you may be thinking that cost may be an issue however keep one thing in mind: How much is your reputation worth to you? In today's day and time, a company or a job applicant are solely known by what their online reputation is which is not dificult to track down at all. Paying a small amount to have peace of mind in terms of: a). identifying who is spreading lies about you b). getting inaccurate information removed or hidden is something to highly reconsider. Once the perpetuators are tracked down, it is only a matter of time before they can easily be prosecuted for damages in the court of law.

Article Source: http://www.articlesbase.com/internet-law-articles/dealing-with-false-and-malicious-online-defamation-1178137.html

About the Author:
Megan Cassidy is a resident of Maine and speaks frequently on issues pertaining to online privacy and defamation. She currently writes for StopDefamation.com which helps consumers nationwide deal with online defamation and reputation management issues.

Affidavit Forms

Acceptance certificate to be used in conjunction with a conditional sale agreement or an equipment lease. The certificate states that the goods have been installed or delivered as required and are satisfactory.

LEGAL FORMS AND SERVICES

Author: jacelin

Accounting forms: As a business person, you know that it is crucial to protect your money and your property. One important way to protect yourself and your business is to have an accurate accounting plan. This easy to use, attorney-prepared packet will help you manage your accounting needs. Why pay more to buy forms one-by-one when you can get everything you need for a fraction of the cost? Our attorney-prepared packet contains the most popular accounting forms . Alabama Articles of Organization Kit The central legal document for any Limited Liability Company (aka LLC) is the Articles of Organization. This document outlines the basic structure of the Limited Liability Company and details those matters that are relevant to the public registration of the LLC. This kit will provide you with the tools you need to prepare draft and file your Lilacs Articles of Organization. Alabama Automobile As Is Bill of Sale An Automobile Bill of Sale is necessary if you want to sell an automobile. Whether you are selling a car, van, truck, trailer or motorcycle, an Automobile Bill of Sale indicates the make, model, year, mileage, and vehicle identification number (VIN) of the vehicle. This packet also includes an Odometer Disclosure Statement because federal law requires that you state the mileage upon transfer of ownership. Use this form when selling an automobile ""as-is,"" with no warranties as to the condition. An Automobile Bill of Sale will help both the Seller and Buyer protect their rights and is useful both for tax and other accounting purposes as well. An Automobile / Vehicle Bill of Sale can also help the Buyer prove that he/she owns the vehicle.

Article Source: http://www.articlesbase.com/health-and-safety-articles/legal-forms-and-services-1244134.html

About the Author:
By,

Jacelin Grace,
lisa369.wordpress.com

community trademark

It is very important to make sure that you have good copyright management in order to insure that no one is illegally using or benefiting from your intellectual property. This will allow your business to reap the full benefits of the products and services offered by you.

Copyright management

Author: Katheleen Bloom

Copyright management involves insuring that your copyright is continually updated and reviewed in order to escape legal loopholes that may permit certain individuals or businesses form profiting at your expense. Copyright management also involves monitoring all the avenues in which your intellectual property could potentially be exploited and insuring that it does not happen. This necessitates the need of a capable trademark agent . In a situation where copyright infringement is occurring, it is necessary to take swift action and bring legal proceedings against the individual or the organisation in question. Lawfully is a Sydney based firm that provides fast, efficient and professional services for clients at realistic fees in relation to trademarks, and the business aspects of patents and copyright. This firm provides reliable services to organisations ranging in size from small to large, in Australia and overseas. It identifies its services by the trade mark 'Lawfully' as well as trading under that name as a business name. Lawfully is a firm which delivers high quality services in the following four areas: • Trade Mark evaluation, searching and registration. • Copyright Registration in the USA for the original works of Australian writers, composers and software authors. • Copyright Management. This service assists the Australian promoter in pulling together the diverse rights of actors and performers so that the promoter owns and can exploit copyrights in the film and/or live performance. • Copyright and Patent management to assist authors, artists and inventors in Australia to exploit their original work within Australia. For more information about how Lawfully can help your business with it’s needs as well specific information on the types of services provided by lawfully, please visit the company web-site at www.lawfully.com.au .

Article Source: http://www.articlesbase.com/copyright-articles/copyright-management-1237247.html

About the Author:
www.lawfully.com.au

invasion of privacy

Reckless Online Posting and Liability Exposure - A Caution For Business Owners

Invasion of Privacy? New Precedents Set For Online Right To Publicity

Author: Kathryn Carrado

By Kathryn Carrado

Complaint boards, blog postings, community connecting sites, and individual web sites can be used to post a variety of useful information; but unfortunately they can also be abused to post false or even libelous statements about individuals and businesses.

With search engine technology that is now state of the art at such sites as Google and Yahoo! Search, your post can be spread around the globe with a reach and frequency that can do irreparable damage.

Often, a valid complaint against a small business can be turned into a war of words and accusations which is waged online by the business owner against the disgruntled customer, in order to try and make that customer look bad. This obvious and desperate attempt on the part of the business owner, meant to cover up the original complaint, only serves to turn a very negative light onto the business as well as the person managing it.

If you are a business owner, it is never a good idea to use a counter-attack strategy toward an individual who has filed a complaint against you. It makes you look bad, and worse, it makes you look guilty.

Larger Corporations can afford to utilize professional Reputation Managers who use search engine optimization techniques, press releases, and other methods to keep their clients looking favorable. If you don’t have the luxury of being able to afford a Rep Manager, you can still gain the same results by mimicking what they do.

It’s inevitable that something negative will be printed online about almost every company at some point in time, and the best practice is to issue a simple statement of fact from your perspective, list the ways in which you attempted to assuage the situation, and end it all with a two or three nicely-written endorsements from your other customers.

The best endorsements should contain the contact information for the customer, so that potential clients can follow up to make sure that the endorsements are real. Don’t invent fake endorsements as this very likely will come back to bite you, and paint you in an even more unfavorable light.

In addition to your response to the complaint, it’s a good idea to create a page on your business site which focuses on the positive aspects of you personally; as well as the features, benefits, and services you provide. One whole page or more should be devoted to customer testimonials.

You can’t have too many click-able endorsement links. If a potential client gets tired of reading them, he or she can just stop clicking and go back to your home page; or better yet to your “contact us” page or online order form.

Posting pages of negative personal information about a customer who has complained online about your business only makes you look bad to future clients. Not only is it a highly inappropriate response; many times it is illegal.

Victims of slander, libel, invasion of privacy, and copyright infringement are starting to fight back against business owners; and they are winning. Just because you have a business website, it doesn’t mean that you can post whatever you want to on it. The use of a disgruntled customer’s name and contact information without his or her permission is punishable by law; as is the use of his or her photographic likeness.

The main thing you should remember in responding to an online complaint is to keep everything positive. Focus on your strengths and the satisfaction of your past customers. This speaks volumes about who you are and what you do.

About the Author:

Kathryn Carrado is a business owner, professional writer, and community organizer residing in Southern California

Article Source: ArticlesBase.com - Invasion of Privacy? New Precedents Set For Online Right To Publicity

penny auction

Some of penny auction sites are considered gambling.
www.for10cents.com is not from a legal point of view.

To Bid or not to Bid

Author: Lucas Fuksa

Issue:

For10cents.com runs an Internet auction forum, in which registered users can purchase auction bids in order to partake in bidding on discounted wholesale priced items. An auction is a public sale in which property or items of merchandise are sold to the highest bidder. Once the registered user bids on an item (each bid worth as low as ten cents) then that bids worth is expended, whether or not the user wins the auction in the end. The conduction of the websites business services are being accused of being gambling strategies, which would be illegal in the state of Delaware (where the website is based and run from) and would also be illegal on a federal level since the website runs nationally. Delaware state law prohibits all forms of gambling unless sanctioned and conducted by the state legislatures. Federal gambling laws prohibit any type of carrying out gambling through state lines, and the website is run on a national level. Therefore, the issue is whether the operations and services provided at For10cents.com are considered to be “gambling”.

Rule:

In the Delaware State constitution “all forms of gambling are prohibited in the state” except some exceptional cases that would not encompass the jurisdiction of For10cents.com if found guilty of gambling practices in their business.

The U.S. Code defines gambling in terms of a small stake called a “bet or wager”(Title 31, Subt. IV, Ch 53, SCh IV, 5362). A “bet or wager means the staking or risking by any person of something of value upon the outcome of a contest of others [. . .], a game subject to chance, upon an agreement or understanding that the person or another person will receive something of value in the event of a certain outcome” that includes “the purchase of a chance or opportunity to win a lottery or other prize(which opportunity to win is predominantly subject to chance)”(1.A.B).

The U.S. Code defines “gambling” in Prohibition of illegal gambling businesses as “include[ing] but not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita, or number games, or selling chances therein”(Title 18, Part 1, Ch 95, 1955)”

Although not very closely related, the definition of a wage and lottery are given in the Supreme Court Case Horner v. United States decided January 30, 1893. In “Headnote 4. Where the element of certainty goes hand in hand with the element of lot or chance in an enterprise offering prizes, the former element does not destroy the existence or effect of the latter.” In other words, where there is an element of chance imbedded within an enterprise, which also includes certainty, the element of certainty does not cancel out ANY element of chance if present in a gambling pursuit. With multiple definitions attested to the case of Horner v. United States, the definition of lottery was established as “a scheme for raising money by selling chances to share in a distribution of prizes; more specifically, a scheme for the distraction of prizes by chance among persons purchasing tickets, the correspondingly numbered slips or lots, representing prizes.” Furthermore, “in the law term, lottery [**413] embraces all schemes for the distribution of prizes by chance [. . .] and includes various forms of gambling.” “Lottery is defined as ‘A distribution of prizes by lot or chance’.” It is “a distribution of prizes and blanks by chance; a game of hazard, in which small sums are ventured for the chance of obtaining a larger value, either in money or in other articles”

In the court of appeals case United States v. Bergland, the term of “gambling” is once again defined. The defendants are charged with interstate travel “with the intent to promote a business enterprise involving gambling offenses [, which] is broader than a charge that the defendants themselves engaged in gambling.” The district judge deemed “that the terms ‘gambling’, ‘bets’, ‘wagers’ in the statutes now before us are [**5] terms which are unambiguous; that they are activities involving the element of chance; that the scheme charged against the defendants herein was ‘a sure thing’ and hence no element of chance was involved.” Moreover, “the District Judge was also of the opinion that there was no need to refer to legislative history, and cited among others, the case of Caminetti v. United States where pages 194, 196 the Supreme Court said ‘Where the language is plain and admits of no more than one meaning the duty of interpretation does not arise.’ Statutory words are uniformly presumed, unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly attributed to them.” “The statutes with which [the court] is concerned [**6] are so plain and unambiguous that there is no need to resort to legislative history.” Simply put, gambling can simply be placed in “activities involving the element of chance,” and in a case digressing from chance to relative certainty, there is no need to resort to legislative history to prove its viability and applicability as a deciding factor, as in United States v. Bergland.

Analysis:

According to the For10cents.com website function, utility, and structure, which includes but is not limited to the means and end of the business, it does not carry out gambling practices. Three elements that need to be present and addressed in gambling are consideration, prize, and chance. In the above mention definition of gambling the consideration will be taken to mean the payment for a chance to win something of value (which could be money or something else worth money). That is, the “players” must pay something of value to be eligible to participate. The prize is obviously what is acquired by the winner, as in the money, or something of value. Finally, the chance is the outcome that is not determined by skill. In the For10cents.com website the consideration does not directly parallel with its definition found within gambling. The website is opened to anyone that is 18 years of age or older. So registering is free, and in fact free bids are given upon initiating one’s account. Once the registered user wants to engage in the service, or participate in the auction, then they pay for that specific service. They pay in order to partake in the bidding on certain products, and to have those products available (for a certain price) to them via the Internet. The registered users are well aware of what a bid costs, and are not obliged to buy any bids if they simply do not want to engage in the service. The website is free of charge, no purchase necessary to become or remain a registered user. When the user wants to buy (engage in the service provided), they bid up to a pre-decided specific amount. So, what they pay in purchasing bids is the fee they pay to use a service and have that service available to them via the For10cents.com website.

Moreover, in For10cents.com there does not exist a prize that directly parallels the “prize” in gambling. Registered users only bid on the items that they choose. The random assessment of a prize is not present on the website. The registered user can choose to bid on a wholesale product, or abstain from bidding. The auctions (like a regular sale) are voluntary and even subject to returns if the auctioneer that wins decides he/she no longer wants the auction item. Thus the definition of a prize in gambling does not match with the definition of a purchased item in an auction. In an auction, the registered user with bids disposable to him can bid on the item they choose, up to a certain amount that they choose. The bidder chooses to try and purchase a product from the website. They choose whatever item appeals to them, and the ability to obtain under-market prices for these items. To have access to the auction they pay a service fee in the form of individual bids. So, there is no prize in a direct sense, but a pool of products that they individually choose to either bid or not bid on. Additionally, the per bid price For10cents.com charges is the fee that is required to provided the users with the service of extending the inventory of below market priced items to them.

Finally, the factor of chance in gambling does not match with the bidding, outbidding, or underbidding prevalent on the For10cents.com website. When a consumer decides to partake in a specific auction the outcome is determined by a certain level of skill. There are electronic options on the website that allow the buyer to pre-decide the amount that he is willing to auction, or the amount of times he will bid on an item. So, even before the auction begins the customer assesses the extent of risk and reward and utilizes a strategic intuitive business skill. The bidding does not go unthought-of or unplanned. In other words, the outcome of the auction does not prove to be equally or even similarly structured to that of gambling. In the auction a certain level of skill and predetermination go into the business plan of a consumer. The customer pre-decides what he is willing to spend, how often or up to how much he/she will bid each time. Thus the element of “chance”, as it is found and necessary for gambling, simply does not exist in the element of an auction. Chance does not determine who will outbid another bidder, but strategic business planning and preparation.

Additionally, the element of chance in a gambling or lottery scheme does not exist in its nature aforementioned in Horner v. United States of America. The element of chance is taken to represent the way in which the people took part in the lottery, where the “purchaser did not know until after the sale what prizes they were entitled to, and the prizes varied in character and value.” In For10cents.com the business venture does not present this element of chance. The bidders only take part in an auction if the merchandise is something they perceive of being worth the amount they expend on it. At every given step, the person who pursues a bid has control over what item they choose to bid on. Thus, the item they choose to bid on is an informed choice by the bidder not an element of chance. Further, the customer controls and chooses the minimum and maximum amount to bid on the item (depending on the perceived worth of the item). The customer also has control over how many bids they choose to engage with in the auction. Also, in Horner v. United States of America, the element of chance represents the ignorance by the gambler that, for example, unknowingly purchases a box that costs a fixed amount, “each box being represented to contain a prize of money or jewelry [something of value], the purchaser selecting his box in ignorance of its contents, was a [*464] device in the nature of lottery.” In short, the ignorance of acquiring a product that is higher in value then one’s anticipated expenditure, is not found in the auction of a product at fixed value. The bidder has control over WHAT items they choose to bid or withhold bidding on. The bidder knows exactly what the product is, what that specific product is worth, and how predicts an approximate how much they are willing to spend on obtaining it. In every given step the element of chance as presented in Horner v. United States is simply not found in the For10cents business procedure and structure.

Furthermore, in the court of appeals case United States v. Bergland where the term of “gambling” is once again defined, the element of chance is the defining factor of a bet or wager. The element of chance that, according to its previous definition, does not exist in the For10cents.com website. In the Terms & Conditions the auction section explains, delineates, and clarifies every step of the process on the website. The bid rules are clearly stated and explained so as to eliminate any ambiguity in words or functions. The AUTOBID RULES clearly eliminates all and any hindrances to understanding exactly how the bid works. The item description and values are all listed in plain site on the website so as to enable the bidder to see what auctions they wish to engage in, and which ones to decline. The strategic and foreseeing nature of an auction assessing costs and benefits trumps any element of chance intrinsic to gambling within a bet or wager. The dynamics of an auction, a public sale in which property or items of merchandise are sold to the highest bidder, may appear to have traits similar to gambling, but lacking the absolute element of chance does not hold through to be considered a bet or wager. Also, as cases in gambling have not been similar in nature to this one in the past, where the language is unambiguous and does not require interpretation, past legislative history has been found to not be needed. In other words, where the contours of a word are strictly and straightforwardly represented, those words hold strength enough to present to a judge without the extension of cases to strengthen its definition.

Conclusion:

Evidently, For10cents Internet business structure does not fully encompass the elements of “gambling” as legally defined in the US Code. Although, the appliance of purchasing bids and then assessing them to auction on a website does seem to parallel in a sense the essence of a “bet or wager,” upon closer consideration it proves to not be a gambling pursuit. The three factors based in the definition of gambling (as dictated by the U.S. Code) of consideration: staking or risking something of value, prize: receiving something of value, and chance: not basing the outcome on a certain skill, are not found in the structure and pursuant action of For10cents.com website. Furthermore, in Horner v. United States and United States v. Bergland the element of chance proves that “the element of chance” is the deciding factor in considering an activity a gambling pursuit or scheme. Through the website’s function it becomes apparent that the element of chance prevalent in gambling, such as lotteries, bets, and wagers, as defined by previous cases is not one found in the procedure and structure of an auction as conducted by For10cetns.com and similar websites. Thus, looking at the legal definition of gambling and past cases definition and application of it, and the ways in which For10cents.com digresses in its practices and objective from gambling, it becomes clear that For10cents.com is not a gambling site. It neither promotes nor pursues illegal gambling, and does not fit in the definition of an illegal gambling business, as defined by the U.S. Code.

About the Author:

Article Source: ArticlesBase.com - To Bid or not to Bid

custom government websites

Have you considered the legal exposure your organization has simply by having a website? The most common area of website management - your content – can incur great risk if not properly managed. However, by implementing the proper procedures and properly archiving updates, you can avoid any legal ramifications.

Archiving, Your Website and the Law

Author: Cole Cheever

Although I will be discussing this issue, this discussion is not intended to serve as legal advice and should not be taken as such. You should consult with your own legal counsel for assistance in determining legal requirements, liability exposure, appropriate practices, policies and procedures.

Is Archiving for You?

Should you archive everything that has been published on your website? Are you required to do so? When considering these questions remember that legal requirements take two forms; explicit and implicit.

Explicit requirements spring from legislation which specifically mandates archiving websites. These laws are usually at the state level, vary widely from among states and may not apply to your organization. Your State Archivist will be able to tell you quickly if there is specific legal guidance regarding archiving your site.

Implicit requirements arise due to out-dated general record retention requirements which do not address websites. These requirements generally outline the retention and disposal guidance for all sorts of records, but don’t specifically address websites. Thus websites fall into the “all other records” category, which commonly doesn’t allow for disposal -- ever. Fortunately, state archivists are actively pushing for updated legislation which addresses new electronic media.

If you are not required by law to archive, you may still be required to archive by supervisory directives or legal advice. City councils, county commissions, school boards and other supervisors may direct the website to be archived, and your own legal council may recommend archiving your website.

Archiving Parameters

If you are archiving your website, you need to ask yourself questions and make some decisions.

What is my retention period? If there isn’t controlling legislation mandating how long to keep your archives, you’ll need to decide how long to keep information. Storage space may be a concern if you have large files. It may be tempting at this time to think you can simply accumulate cabinets of back-up tapes, but wait! There are more factors to come…

What will be my archiving format? How often will I save what’s on the site? The choices are usually one of two: Periodic Snapshot Archiving or Dynamic Archiving.

Snapshot Archiving is making a record of what was on your site at a regular point in time. It’s very similar to backing up computer files. You choose a time (e.g. every Tuesday at midnight) and make a record of what’s there. The drawback, of course, is you don’t have record of what happened between Tuesdays.

Dynamic Archiving tracks every change to your website, so you can do point-in-time retrieval. Pick a date and time, and you can deliver exactly what was on your site at that time. When compared to Snapshot Archiving, Dynamic Archiving is a more comprehensive solution.

For Dynamic Archiving to be ideal, it needs to be a feature of your content management system. Attempts to manually create Dynamic Archiving become cumbersome, bordering on the ridiculous. Consider the incredible work load in this scenario: “Every content manager must send updated versions of every page to the Archiving Clerk every time a page is modified. The Archiving Clerk will track all changes and respond to records requests.”

Perhaps the key retention parameter to consider when putting together an archiving system is Recovery Timeframe. Here’s a fly for your archiving ointment: State Sunshine Laws usually require any request for a public record to be made available within a specified period – often as quickly as three business days!

The challenges of complying with the records request parameters through a manual archiving system or a third-party vendor are significant! The simplest solution is an automatic archiving feature within your CMS from which you can call a record for any point in time, whenever you want.

Just a point about Sunshine Laws (Freedom of Information Act (FOIA): Sunshine laws mandate retrieval, but not retention of records. In other words, they don’t make you archive records, but they do make you produce copies of anything you archive. They also usually provide a mechanism for the records request process, which often allow you to charge your true costs in producing a record. Be sure to become familiar with your state’s requirements, as you may be able to recapture staff time as well as any other associated costs to you.

About the Author:

Cole is currently the Public Relations Coordinator for CivicPlus, the leading authority on local and custom government websites, development and design. Working with more than 500 cities, counties, associations and school districts throughout North America, CivicPlus offers egovernment solutions that include consulting, design, hosting and more than 60 e-government tools all maintained by the CivicPlus Content Management System.

Article Source: ArticlesBase.com - Archiving, Your Website and the Law

trademarks patents

Trademark registration and its protection is an important part of running any business. However, it is not as simple as it seems. The first and the most common mistake made by most up and coming businesses is to take on a a common law trade name. Very often the names that are chosen are names that are generic or inappropriate and should remain available to all of those who compete in that industry. This is not always kept in mind leading to litigations and claims which can prove to be detrimenta

Common Law Capers

Author: Katheleen Bloom

The firm Lawfully and its principal Gibson Owen are well able to advise you on any new trademarks to ensure that a search is carried out to minimise disappointment, subsequent rejection and disputes. Where a client has built up a reputation and goodwill in a trademark or trade name without registration then he must at some time address the question of registration.

Up until registration, his trademark would be called a common law mark and he runs the risk of finding after many years of business that there is a prior registration of a similar name in a similar class of goods. He may find that there is a similar name which has been in the market place unregistered but with a commencement date prior to that of the client's first usage.

Upon addressing the matter of registration the client is confronted by having to carry out searches to establish what identical, similar or deceptively similar marks are on the Trademark Register or in the market place with a priority date well before the client's first stated usage.

Common law rights are those rights you can enforce by an action without primary reliance on statute law.

The Designs Act, Patents Act and Trademarks Act all give you statutory rights as an incidence of registration of your trademark or invention. Valuable enforcement rights will arise as an incidence of such registration.

Having developed a reputation, goodwill and a significant capital value attaching to the unregistered trademark, the owner must then contemplate the fact that there may be prior registrations that are similar or deceptively similar or where another business, perhaps an opposition business, has been using their mark to develop goodwill and reputation predating that of the client's first usage.

Where a contest develops over who has the prior right to the name, there is a real prospect that the client would not only lose the contest but lose significant capital such as the removal of its name, the loss of its profits for the period of conflict and the obligation to start again with a new name, which in turn can amount to losses of immense amounts of capital.

The ownership of a common law trade name is an excellent example of playing Russian Roulette with the company's capital.

Where a company proceeds to adopt and assume a trademark that is unregistered there is a very real likelihood that it will be tempted to describe attributes of its product or service in that name. An excellent example would be the name Bankstown Smash Repairs. It is not appropriate to identify a geographic region in a name and it is not appropriate to identify the product or service in the name.

Very often the names that are chosen are names that are generic or inappropriate and should remain available to all of those who compete in that industry. An example of such words is 'smash repairs'.

It is always best to invent a name which has nothing to do with the product or its attributes. It is usually too late to warn a client on these factors when they have developed goodwill and reputation at common law.

Where you have given the right of exclusive use of your trademark to a licensee then usually you will have given that licensee the right to protect the intellectual property against invaders and trespassers.

It is possible that the exclusive licensee is not interested in protecting the reputation attaching to the trademark property, but as the registered proprietor you may feel you must protect the integrity of your trademark and you can do so provided you have reserved those enforcement rights during the preparation of that licence. The need to take action can arise during the course of the license or after its termination.

There could be many commercial reasons why a licensee does not want to spend funds on fighting invaders and trespassers and it may fall to you to defend the integrity and reputation of the trademark.

If you have failed to draft the license correctly in not reserving to yourself the right to supervise the quality of the licensee's products with regularity then you will have difficulty in protecting that integrity and reputation.

Not only must you reserve to yourself the right to supervise quality but also you must exercise that right and not appear to abandon it by failure to supervise for lengthy periods or failure to supervise regularly.

In addition a licensee may feel that when the exclusive license lapses he has adequate momentum in his product and reputation not to bother with a renewal of the exclusive license.

Where there has been a failure by the Licensee to renew the license, the registered proprietor must ensure that the reputation and goodwill attaching to a trademark have expressly re-vested in him as the registered proprietor.

Whilst these requirements seem to be only incidental to the main business of granting rights to a licensee and receiving royalties from him it is obvious that the mark could be seriously imperiled unless the above two factors are treated with detailed attention in the license document.

Continuing use and development of reputation and goodwill in an unregistrable mark can eventually allow its registration. The unregistrable mark can become known in the eyes of the market or the public as one that distinguishes the owner's goods and/or services from those of his competitors. Upon such proof being established, which carries a very heavy burden to discharge, such an offending mark can be applied for and may be approved for registration.

It is far better to take advice before commencement of use of a mark so as to ensure it does not offend against other marks and therefore attract lawsuits and opposition to registration. It is possible to offend against another mark registered or unregistered by direct conflict or by using a mark that is deceptively similar to another mark.

Any interloper or trespasser will be easily put to heel if he is offending against a registered mark in the same or similar classification for goods.

Injunctions, serious pecuniary penalties, claims for damages and an account for profits can be directed to the offending user/owner. http://www.lawfully.com.au

About the Author:

Katheleen worked in a law firm for a few years where she got interested in patents and copyright laws. Since then she has been an avid student of the same and likes to inform people about the laws through her articles.

Article Source: ArticlesBase.com - Common Law Capers