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Old 01-12-2015, 09:15 AM
 
Location: California
243 posts, read 1,020,853 times
Reputation: 110

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I own a number of trademarks on a particular phrase. This phrase therefore cannot be used on many types of products without my permission.

A musician with a copy written ( correct terminology? ), fairly well known song, has that phrase in her song. No problems there of course.

Is the musician allowed to then use my trademarked phrase, with or without the associated lyrics, on products that my trademarks are in effect for? Does it matter which came out first, the song or my trademark?

Example.
If I own phrase "XYZ" for use on t-shirts, can the musician also put phrase "XYZ" on a t-shirt?

Thanks for the insight!
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Old 01-12-2015, 09:28 AM
 
Location: North Idaho
25,250 posts, read 33,183,633 times
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It matters a lot which came first. If he used it first, he has the rights to it.

Incidentally, if it is a phrase in a song, the song writer has a copyright on it.

Better check the law because I don't think a trademark gives you right to a phrase. You are copyrighting the actual mark (the drawing) not the phrase.
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Old 01-12-2015, 10:20 AM
 
28,900 posts, read 48,701,641 times
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As someone who has successfully sued a much larger company for trademark infringement, don't ask a bunch of nitwits on a message board. Find yourself a good intellectual property attorney.

That being said, if you trademarked your phrase and actually had it on a t-shirt prior to the musician using it, then you may have grounds. But, beware, because if you haven't sold your t-shirts outside of your corner of the world, the musician could make the case that he/she can sell it everywhere else.

My company name was trademarked when, lo and behold, a much larger company in my industry started up a spin-off about 700 miles away with my identical name. My lawyer and their lawyer fired letters to each other over the course of several months. Finally, they had resorted to the argument that I had only done business within my city. I neatly rebutted that argument by showing cancelled checks from clients around the country -- including their own city. That pretty much did them in.

But that was my situation, and it took place 17 years ago. Yours may be totally different. The best solution is to find an IP attorney and make sure you have secure IP rights before it's an issue, not when.
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Old 01-12-2015, 10:50 AM
 
Location: California
243 posts, read 1,020,853 times
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Quote:
Originally Posted by cpg35223 View Post
As someone who has successfully sued a much larger company for trademark infringement, don't ask a bunch of nitwits on a message board. Find yourself a good intellectual property attorney.
Oh, I have. I am always listening to all opinions as there is usually someone with some other insight or life experience.
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Old 01-12-2015, 01:37 PM
 
Location: East of Seattle since 1992, originally from SF Bay Area
33,134 posts, read 60,179,694 times
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It's up to the judge to decide when you sue them. If you own trademarks it may be worth having a lawyer with experience in
that area of the law. No one enforces but you, so you would have to identify the unlawful use, and entity/person and sue them in court. The lawyer can tell you whether or not you have a case.
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Old 01-12-2015, 07:08 PM
 
28,900 posts, read 48,701,641 times
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Quote:
Originally Posted by ShakyJ View Post
Oh, I have. I am always listening to all opinions as there is usually someone with some other insight or life experience.
Well, it might boil down to a question of distribution. If you sell it in multiple regions, as opposed to one city, then they can't claim superior rights.
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Old 01-12-2015, 07:50 PM
 
Location: California
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I have sold my product with the trademark on it in the USA (All States), Canada, and several European Nations.
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Old 01-13-2015, 11:19 AM
 
Location: All Over
4,004 posts, read 5,007,378 times
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Trademarks and patents are only as powerful as your money and backing and lawyers to go after someone who infringes.

Also I could be wrong on this but I believe in order to enforce a trademark you have to show some loss to yourself. you can't just go around trademarking words just so other people can't say them and then you go chase them down anyone someone utters the word. i believe the system is more intended to protect say a clothing line name or slogan. I have filled out trademark forms and they typically ask how you plan on using the term or trademark such as to make coffee mugs, tshirts, etc. Just because you patent a term on a tshirt doesn't mean a rapper can't say that word in a song. That doesn't in any way cause you a loss.

I'm not at all saying this is you but the way you describe this situaiton seems like your waiting to pounce on people unknowingly using some term you've filed a trademark on so you can go sue them.
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Old 01-13-2015, 04:11 PM
 
28,900 posts, read 48,701,641 times
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Quote:
Originally Posted by doodlemagic View Post
Trademarks and patents are only as powerful as your money and backing and lawyers to go after someone who infringes.

Also I could be wrong on this but I believe in order to enforce a trademark you have to show some loss to yourself. you can't just go around trademarking words just so other people can't say them and then you go chase them down anyone someone utters the word. i believe the system is more intended to protect say a clothing line name or slogan. I have filled out trademark forms and they typically ask how you plan on using the term or trademark such as to make coffee mugs, tshirts, etc. Just because you patent a term on a tshirt doesn't mean a rapper can't say that word in a song. That doesn't in any way cause you a loss.

I'm not at all saying this is you but the way you describe this situaiton seems like your waiting to pounce on people unknowingly using some term you've filed a trademark on so you can go sue them.
This isn't really true. I pinned an $800 million company to the mat over a trademark infringement for my $5 million company. My legal fees were $20,000.

To your point, you do have to have your trademark out in the marketplace actively doing business in some way or another. But if we take the OP at face value that he does indeed have a viable commercial product or business that has a life of its own and decent distribution, then the force of law does indeed prevail.

Mind you, intellectual property infringement carries stiff, stiff penalties. When I did it, the law was that whatever jury award I received was automatically tripled. Don't know if that still prevails today.
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Old 01-14-2015, 03:07 PM
 
Location: California
243 posts, read 1,020,853 times
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Yes, I have a corporation selling goods with the trademark on it. This includes t-shirts with the trademark which has been active for years.
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