Can I trademark a 10-year-old-dead-trademark? According to US law, if trademark 'ABC' has expired under 'Section 8/9' more than 10 years ago (2010), and has not seen any activity so far, can I trademark it?
After some research, you can IF: The trademark is NOT used in trade, per example, if Apple failed to renew the trademark but is activelly using on products, they can always renew filling a new application. As said on Trademark Now: The risk comes from the Lanham Act. Through this act, a mark is not abandoned until it’s been discontinued without intent to resume use. While the USPTO will not track the mark in their registry as active because the paperwork has not been filed, this doesn’t mean that the mark isn’t still being used by a business who has an acceptable reason for not maintaining it in the registry. If you can prove in court that the original owner had no intent to continue its use, then have at it. Understand, however, that the subjectivity of the process will give you problems if the previous owner pushes back. 2. The expired trademark is NOT in the 6-month grace period after expiration in wich, the original owner can renew. I learned also that you could always ask(And is the best course of action), i spoke with some companies who had expired trademarks and they usually are willing grant the trademark, since the product/brand has been long dead.
The name of a company is not necessarily a trademark, so you are conflating two different concepts: A company name is the legal identity of the company, like your name is for you. A brand is an advertising construct which identifies certain goods or services. For example, Microsoft is both a company name and a trademark while Windows is only a trademark. Company names are regulated by whomever it is in your jurisdiction who is responsible for this: in Australia this is the Australian Securities and Investments Commission (ASIC). In general, within the same jurisdiction, you cannot have two company names that are the same. So, if you are not registering your company in the UK you should be fine. Trademark is about protecting brands and ensuring that there is no scope for confusion by the consumer that your goods and services are theirs (and vice-versa). Generally, if there is no room for confusion there is no trademark infringement. E.g., if your brand is about software and theirs is about agriculture then this is probably OK. If you both make software but you are a game company and they make accounting software this might be OK too, or it might not.
Can the word &quot;Cola&quot; be used for commercial purposes? It depends on what you want to do with it, but most uses would be permissible. &quot;Cola&quot; is, as you note, a generic term, comparable to &quot;trout&quot; or &quot;sugar&quot; or &quot;beer.&quot; Still, generic words may be subject to trademark protection. Even &quot;coca&quot; is a generic word. Such protection is, furthermore, not exclusive; trademark protection is more subtle and complex than most people realize. There might be a company called &quot;Cola&quot; that operates guided outdoor activities, but that wouldn't necessarily prevent an unrelated company of the same name from pursuing the same business in another jurisdiction. Similarly, it might not prevent a company that repairs household appliances in the same jurisdiction from calling itself &quot;Cola.&quot; For example, in the US, you can buy &quot;Dove&quot; personal care products and &quot;Dove&quot; chocolate; they are sold under distinct trademarks. The central criterion is confusion: trademark protection primarily prevents others from confusing consumers about the source of goods or services. Even if a word or phrase is unambiguously a protected trademark, there are still allowable uses, most notably to designate the product, service, or company associated with the trademark. For example, if someone wants to tell a story about a bottle of Coca Cola (or even to claim &quot;our product is better than Coca Cola&quot;), the owner of the Coca Cola trademark cannot use trademark protection to prevent them from using the phrase &quot;Coca Cola&quot; in the story (or to make the claim). For a specific opinion about a specific use of a specific trademark, you should engage a qualified lawyer with experience in trademark law.
Being or not being open source makes fairly little difference in trademark law. If a commercial firm (Yoyodyne, say) had used the name &quot;Portable Network Graphics&quot; and the abbreviation &quot;PNG&quot; in trade, and taken such further steps as would be needed to protect it in the relevant countries, that firm would have a protectable trademark. Note that in some countries, a trademark must be registered to have any protection at all (much of the EU follows this rule). In others, use in commerce can offer some protection even without registration (the US follows this rule). Had this happened (in an alternate reality) Yoyodyne could have sent a cease and desist letter when open source developers started using the mark. If the devs did not cease, Yoyodyne might have obtained an injunction, or damages for trademark infringement, or both. They could also have issued a takedown notie to the site hosting the project. But had Yoyodyne failed to defend the mark effectively and allowed it to become generic, Yoyodyne might have lost all rights to it. Also, had Yoyodyne ceased to use it in trade for a significant period, they might have lost rights. This is a place where the different laws in different countries might lead to different results. Note that &quot;Portable Network Graphics&quot; is rather descriptive, and not particularly distinctive. Descriptive marks, like &quot;Tasty Pizza&quot; generally get weaker protection, while more distinctive marks, such as &quot;LuAnn's Tastee Pizza&quot; are more strongly protected, in general. Again this depends on the country, and the specific facts. In general the first to use, or to register a mark, gets the rights. When one entity is the first to use, but a different one is first to register, things can get confusing, and results will be different in different countries. Note that a Cease and Desist letter is not a legal requirement. It is a threat of possible future legal action, and often an offer to avoid such action if the recipient does as the sender requests. The recipient can comply with the letter, wait for court action, or try to make some sort of compromise deal. Open source projects, as other answers suggest, often choose to comply.
Your client is confused about how copyright law works (at least in the United States and virtually every other country I've ever heard about copyright in). If I were guessing, they read something like this from the United States Copyright Office: The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. and figured that because it's a derivative work, the copyright only covers the additions and changes they make, and there's no copyright protection for the original work. This misunderstands the law: the original work still has its own copyright (assuming it hasn't expired), and permission from the holder of the copyright on the original work is required to create that derivative work in the first place*. The copyright on the derivative work is separate—that is, both copyrights exist in parallel. * Some exceptions, such as fair use, exist, but would be unlikely to apply to the situation you describe.
For works released after 1989, Copyright notices don't have any legal consequences in the United States. They are just a friendly reminder of who created the work and that they take their copyrights seriously. But those notices are not required anymore to enforce your copyrights on the works you created. If you have proof that you own the copyright on something and when it was created, and if it's still within the term limits, then you can take legal actions against people who violate your copyright. Disney has a history of repeated worldwide lobbying for extending the expiration durations in copyright laws in order to avoid any of their classic cartoons from falling out of copyright protection. So it could be that they try to intentionally muddy the waters and make it harder to find out which of their works expire when. That way people are less sure about what Disney works are and are not in the public domain, making it more risky to use them. But that's just my theory.
This is a close call, in the example that you suggest, because it won't have been executed with the proper formalities and it isn't clear that the content at a url would be fixed in its language at the time that the Will is executed. Subject to an exception for personal property memorandums (and a more subtle one for powers of appointment in trusts) you can't change the terms of a Will once it is signed except by a Codicil executed with the same formalities. Certainly, the best practice would be to assume that the answer is no. There are times when a reference to an external document in a will is allowed (e.g. a reference to real property by address rather than a full legal description found in a recorded deed), but a list of beneficiaries would ordinarily not be allowed unless it was effectively a reference to vital statistics records (e.g. "all children born to or adopted by me.") In general, references to external documents are not allowed when used to establish the nature of the testator's donative intent (a "testator" is someone who writes a will), unless it "describes the writing sufficiently to permit its identification" and can't be modified after the Will is signed, but can be used to establish general facts about reality. One exception in Colorado is that a "personal property memorandum" designating who will receive specific items of tangible personal property can be incorporated by reference and does not have to be executed with the same formalities as a will. It isn't clear to me if a url could be a valid personal property memorandum and that issue has never been tested in Colorado. Colorado's probate laws are based on the Uniform Probate Code and would be substantially identical to any other jurisdiction that adopted the Uniform Probate Code's substantive provisions. The primary statutes governing this (which aren't necessarily easy to understand without context) are: Colorado Revised Statutes § 15-11-502. Execution--witnessed or notarized wills--holographic wills (1) Except as otherwise provided in subsection (2) of this section and in sections 15-11-503, 15-11-506, and 15-11-513, a will shall be: (a) In writing; (b) Signed by the testator, or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (c) Either: (I) Signed by at least two individuals, either prior to or after the testator's death, each of whom signed within a reasonable time after he or she witnessed either the testator's signing of the will as described in paragraph (b) of this subsection (1) or the testator's acknowledgment of that signature or acknowledgment of the will; or (II) Acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. (2) A will that does not comply with subsection (1) of this section is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting. (3) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting. (4) For purposes of this section, “conscious presence” requires physical proximity to the testator but not necessarily within testator's line of sight. (5) For purposes of this part 5, “will” does not include a designated beneficiary agreement that is executed pursuant to article 22 of this title. and Colorado Revised Statutes § 15-11-503. Writings intended as wills (1) Although a document, or writing added upon a document, was not executed in compliance with section 15-11-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (a) The decedent's will; (b) A partial or complete revocation of the will; (c) An addition to or an alteration of the will; or (d) A partial or complete revival of the decedent's formerly revoked will or a formerly revoked portion of the will. (2) Subsection (1) of this section shall apply only if the document is signed or acknowledged by the decedent as his or her will or if it is established by clear and convincing evidence that the decedent erroneously signed a document intended to be the will of the decedent's spouse. (3) Whether a document or writing is treated under this section as if it had been executed in compliance with section 15-11-502 is a question of law to be decided by the court, in formal proceedings, and is not a question of fact for a jury to decide. (4) Subsection (1) of this section shall not apply to a designated beneficiary agreement under article 22 of this title. and Colorado Revised Statutes § 15-11-510. Incorporation by reference A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. and Colorado Revised Statutes § 15-11-511. Testamentary additions to trusts (1) A will may validly devise property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person, including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death. (2) Unless the testator's will provides otherwise, property devised to a trust described in subsection (1) of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and is administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death. (3) A revocation or termination of the trust before the death of the testator causes the devise to lapse, but exhaustion of trust corpus between the time of execution of the testator's will and the testator's death shall not constitute a lapse; a revocation or termination of the trust before the death of the testator shall not cause the devise to lapse, if the testator provides that, in such event, the devise shall constitute a devise to the trustee of the trust identified in the testator's will, and on the terms thereof, as they existed at the time of the execution of testator's will, or as they existed at the time of the revocation or termination of the trust, as the testator's will provides. and Colorado Revised Statutes § 15-11-512. Events of independent significance A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event. and Colorado Revised Statutes § 15-11-513. Separate writing or memorandum identifying devise of certain types of tangible personal property Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing shall be either in the handwriting of the testator or be signed by the testator and shall describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will. There is not a statutory definition of a "document" or a "writing" in the Colorado Probate Code.
Publication after the author's death is still publication. As you can see in this excellent chart this work is copyrighted for 95 years after the publication date under US law. If it had never been published, it would be protected by copyright for 70 years after the death of Lovecraft, the author (a term which has now expired). However, statements of genealogy would be facts, and as such are not protected by copyright. limited quotes to support those facts would be appropriate in a work of non-fiction, and would normally be permitted as fair use under US law. Such quotes would probably not be appropriate in fiction in any case. The exact wording of the genealogy would probably be protected, but not the relationships (who is the parent of whom, etc).