Copyrights protect the games themselves. When software piracy is discussed, this means copyright infringement, as video games are works of expression that receive copyright protection just as novels and paintings do.

Trademarks cover video game companies’ logos and names. Trademarks also come into play with video games that are becoming more and more realistic, since companies often try to incorporate real-life trademarks that belong to companies outside of the video game world. For example, video game giant Electronic Arts (“EA”) recently filed a lawsuit against an Indiana company for EA’s use of Bell helicopters in its popular Battlefield 3 video game.

And, finally, on the topic of patent rights, video game companies have created innovative hardware and design technologies that patents protect. Technologies subject to patents at one point or another have included security features, design of internal circuit boards, proprietary information needed to run software on a console, and the motion sensor technology that the Nintendo Wii made popular.

Does your company do work in the video game industry? What growth have you seen in recent years?

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The gathering has since changed to invite-only for industry professionals, but the buzz surrounding E3 has continued to grow nevertheless. Numerous media sites like IGN and Gamespot cover the event live, and one network, G4, even broadcasts live during the week of the event.

An important issue for E3 and the entity behind the expo, the Entertainment Software Association, is piracy and for good reason – some estimate the losses due to piracy amount to almost $10 billion a year worldwide. While methods to put a dollar amount on video game piracy vary widely, almost everyone agrees that piracy is widespread and continuing to grow. The problem that always remains is how to tackle it.

While here in the United States we have a legal system that helps companies put an end to intellectual property infringement, other countries, where piracy is more rampant, do not yet offer such protections. Eastern Europe, Russia and Southeast Asia are three areas of the world where piracy is widespread, but where law enforcement and court systems are often helpless to put an end to infringing activities.

American companies often find themselves unable to stop infringers overseas, as foreign courts may not be as responsive to the problem as those here. Even obtaining a judgment here in the US does not mean that law enforcement or justice systems overseas will honor that judgment. Alternatively, companies may be able to work with international groups like the World Intellectual Property Organization to monitor and combat piracy abroad.

Has your company faced copyright or trademark infringement activities from foreign companies? How did you address the problem?

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An example of a descriptive mark that acquired secondary meaning that we have mentioned in the past is the fast food giant Kentucky Fried Chicken. Originally, Kentucky Fried Chicken simply described a location and the way that the restaurant prepared its food. Kentucky Fried Chicken became associated with the fast food restaurant to such an extent in consumers’ minds, though, that it acquired enough secondary meaning to merit trademark protection.

Here are some of the factors that courts and the US Patent and Trademark Office consider when determining whether your descriptive mark has acquired enough secondary meaning:

• Surveys that indicate that consumers associate the trademark with specific goods or services that come from your company
• The amount of sales that the product or service generates
• Advertising and marketing costs that your company puts into promoting the product or service to consumers
• The length of time that the product or service has been in consumer markets

The essential question that the courts look to answer is this: does the product or service make consumers think of the company behind the product instead of the product itself? An affirmative response likely means that the trademark has acquired secondary meaning. How has your company tried to associate your product with your company in the public’s eye?

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When trademarks become too well-known, they become a part of the language. They become what is known as a genericized trademark because they have become generic. While this is a sign that a company’s trademark has been so successful that it has become ubiquitous, this also generally means that a company will lose its trademark protections because the trademark is so widespread as to no longer clearly identify the business behind the goods.

Many phrases we now use in English were once trademarks but became genericized. Examples include the following:

• Johnson & Johnson’s “Band-Aids”
• B.F. Goodrich’s term “zipper”
• Otis Elevator’s invention of the “escalator”
• Kimberly-Clark Corporation’s “Kleenex” facial tissues
• Bayer’s drug “Aspirin”

Companies will often aggressively defend their trademarks in court when others try to use them and claim that the marks have become generic. A lot is at stake for companies with valuable trademarks, as they risk ending up with no trademark protections at all. If it comes down to a legal battle, the court will be the one determining whether a mark has become genericized. Judges will consider survey data and other information from communities to determine how common a trademark has become.

How have you used genericized trademarks? Did you use a mark already deemed genericized or did you argue that the mark was already generic?

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The evidence from BBM Canada suggests that they do not. BBM Canada representatives said that their employees are being mistaken for RIMM employees and that people have been calling BBM Canada member companies asking for support related to RIMM’s Messenger service. A BBM Canada representative wonders how RIMM would react if BBM Canada started calling its handheld devices “BlackBerrys.”

This is the second time in recent memory that RIMM may have to change the name of a product or service. A few months ago, RIMM changed its planned “BBX” operating system to “BlackBerry 10” after a federal court ordered a temporary injunction when software maker Basis sued RIMM over the acronym.

Both of these cases center on an important part of trademark infringement lawsuits – consumer confusion. Consumer confusion hurts consumers and the company that put the work into establishing a trademark. How have you dealt with others’ – either within your industry or outside it – using similar trademarks to your own?

Klein Trial Lawyers – Los Angeles business litigation attorneys

Earlier in December, a Chinese court ruled against Apple in a trademark case. Since last fall, Apple has been selling its popular iPad tablets in China. The problem was that another Chinese company had trademarked the term “iPad” several years before. That company is Proview, which trademarked “iPad” in Taiwan in 2000 and in mainland China in 2001. Apple entered into a trademark transfer agreement with Proview Taiwan and claimed it should apply to mainland China, but the court did not buy that argument. Now Proview will seek $1.6 billion from Apple for Apple’s sales of the iPad in China over the past year. Apple may find itself having to sell its iPad in mainland China under a different name.

Intellectual property law has increasingly become international. Particularly in California, at least a portion of the sales of most businesses comes from foreign markets, so businesses should not let the complexity and rapid-changing nature of intellectual property law intimidate them. With millions of dollars in sales and valuable trademarks at stake, businesses should seek expert legal guidance when conducting business in foreign markets.

How has your business protected its intellectual property in foreign countries?

Klein Trial Lawyers – Los Angeles business litigation attorneys

The maker of an eyelash-lengthener product is facing threats from the Kardashian legal team over her “KardashianLash” product. Sarah Ehrlich applied for a trademark for the name and said that she was planning to donate her proceeds to an orphanage in Honduras, but the Kardashians are not budging.

Kim Kardashian’s style and appearance are a large part of her “business” as a reality TV star. Tabloids meticulously report on her every outfit and look, and even her eyelashes make headlines. Yahoo! News listed her eyelashes as the #1 worst trend of 2011. Yahoo may consider them a bad trend, but many of Kim’s followers emulate everything she does. Celebrities like her move millions of dollars with everyday decisions like how to do their eyelashes. Kim and the other Kardashians need to protect their names and what products they become associated with just as much as Apple needs to protect who uses terms similar to ones that Apple does.

Aggressively protecting intellectual property rights or celebrity publicity rights is important for companies and celebrities. How have you kept others from trying to get away with cashing in on your success?

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Companies are usually in the position of arguing that their mark is a suggestive one, which is more likely to receive protection than a descriptive mark. The gap between the two is that suggestive marks require some leap of imagination to connect the mark with the product, whereas descriptive marks do not.

Descriptive marks describe basic aspects of a product like its function or use. Examples of trademarks that a court has ruled are descriptive include: “Oatnut” for a bread that contained oats and hazelnuts, “Doc-Control” for software that manages a user’s documents, and “1-888-MATRESS” for a mattress retail phone service. Other descriptive marks may just use the geographic location of a product.

Descriptive marks are not generally eligible to receive trademark protection. They require something more – secondary meaning. This means that consumers must strongly associate the mark with a particular product. Secondary meaning is not easy to achieve for most marks and products.

Suggestive trademarks, on the other hand, do usually qualify for trademark protection, which is why companies will argue that their mark is suggestive rather than descriptive. A suggestive mark means that a consumer has to use imagination to understand the trademark. The mark suggests what the product does but is not a basic, straightforward description. For example, the popular “L’eggs” pantyhose from Hanes is a suggestive mark because of its creative nature associating the product (which is for legs) and its egg-shaped containers.

Have you had trouble convincing a court that your trademark is suggestive rather than descriptive? What sort of creativity did you employ in coming up with your mark?

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Marley’s family is now in a trademark infringement and publicity rights battle with Marley’s half-brother, Richard Booker. Marley’s widow and nine of his children claim that Booker has been using Marley’s name in the phrase “Mama Marley” to sell fish, fish and chips, fish cakes, fish fillets and fish sausages, amongst other fish-related products. Booker has also allegedly been using the Marley name to promote the 9 Mile Music Festival in Miami. The plaintiffs are asking a federal court to prevent Booker from using Marley’s name and to make Booker turn over any profits he has made with the use of the Marley name.

Some might think that Booker should be entitled to use his half-brother’s name, but the controlling factor will be who owns the publicity rights and trademarks surrounding Bob Marley. Marley might have specified this in his will, or a court may have made the determination at the time of his passing 30 years ago. His name remains a valuable commodity, though, which is why both sides are willing to go to court to plead their case.

Are you an artist or someone involved in a creative endeavor? How have you provided for your intellectual property rights for after you pass away?

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Whether the PTO protects trade dress is a determination like that made for regular trademarks. The trade dress has to be distinctive. It can either be inherently distinctive (think of fanciful or arbitrary trademarks), or it might have acquired distinctiveness through secondary meaning. Inherently distinctive trade dress includes the décor of a restaurant or the shape of bottles.

Trade dress acquires secondary meaning when consumers begin to associate a particular product’s appearance with a particular source. In a trademark infringement lawsuit, a court will look to multiple factors to determine whether the plaintiff’s trade dress has acquired secondary meaning. Important factors include: how similar the two marks are, evidence that consumers actually became confused, the defendant’s intent and what markets the two products serve.

As with regular trademarks, you do not have to formally register trade dress to receive trademark protection, but there are benefits to doing so like incontestable status after five years and nationwide notice. Have you used trademark protections for the trade dress of one of your company’s products?

Klein Trial Lawyers – Los Angeles business litigation lawyers