New York City Business Law Blog

As anyone who engaged in a business is aware, there are many moving pieces that all work together to make it successful. This does not change once a business has been in existence for a while. Necessary pieces to virtually every company, regardless of its size or type, are contracts. While the drafting of certain agreements can be complicated, resolving disputes that arise due to breaches are often even more complicated. A contract dispute that has been receiving attention lately is one involving Martha Stewart and the two department stores she currently sells some of her products through.

There are many things that go into making a business successful. One of those things is consumers' recognition of products in the marketplace. Proper branding, accompanied by copyright and trademark registrations, can make a product more marketable and protect the business. Because of these benefits, it is fairly clear why a business would want to do whatever it could to maintain a copyright or trademark.

Well known company Apple Inc., recently received bad news on this front. The company, which sells its products internationally, learned that it had lost tights to the iPhone trademark in Brazil. The news came from the copyright regulator in that country, Inpi. Apparently another maker of phones in that country had completed and filed a request for the term "iphone" in 2000, a total of seven years before the phone by that name was released by Apple to the masses.

Most business owners understand that they must patent, copyright and/or trademark important intellectual property related to the functioning of their businesses. However, the interest of intellectual property holders is not always protected simply by the act of patenting, trademarking or copyrighting work domestically. In particular, small businesses are increasingly targeted for intellectual property theft, precisely because many small businesses believe that they do not have the resources to properly protect their intellectual property or enforce their rights.

An example out of the Midwest involves a rubber supply and service outlet that manufactures parts for floor scrubbers using a unique red rubber. The rubber is trademarked for use by the company's Malaysian manufacturer, but was not initially protected in the global market in any other way. Counterfeiters have now taken not only the rubber but also its trademarked name. The counterfeit rubber is now being sold throughout the world at dramatically reduced prices. The Midwestern company is being forced to match counterfeit prices in the global market just to retain a share of its own property.

Reputation is a key factor to its success. A company's trademark provides that business with a distinctive identity. A trademark may be a name, word, logo, symbol, image or a combination of all of these examples. People often identify a company by its brand.

Infringement of trademark, copyright or other intellectual property must be taken seriously. A company must be vigilant and proactive in protecting its intellectual property. Using a company's trademark for an inferior product or an immoral purpose might damage the reputation of that company greatly.

The New York business community must have heard about the recent trademark litigation by "Ben & Jerry's," a well-known ice cream brand in the United States and international markets. Ben & Jerry's Homemade Inc. has sued a pornography company over trademark infringement. The latter has allegedly been using certain titles and themes, "deceptively similar" to Ben & Jerry's various ice cream flavors.