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Happy Birthday to All: Song Now Public Domain

The "Happy Birthday" song, one of the most popular songs in history, has been in copyright for the past 80 years.  Yesterday, that all ended.  

In a dramatic turn of events, Judge George H. King ruled that the copyright filed by the Clayton F. Summy Co. provided a copyright over the specific piano arrangements of the music, not the actual song.  Warner Chappell acquired the rights (or at least they thought they did) to the "Happy Birthday" song when they purchased the Birch Tree Group, the successor to the F. Summy Co.  Since the time Warner Chappell purchased the Birch Tree Group, they have been generating a revenue of approximately 2 million dollars a year in enforcing the "Happy Birthday" song copyright.  Now that Judge King's ruling invalidates the copyright they thought they had, Warner Chappell is left struggling to find a solution.  

What Happens to "Happy Birthday" Now? 

Warner Chappell's legal team is hard at work figuring out their next move.  While they will likely appeal this decision, it is unclear as to what will be the result.  If Warner Chappell is unsuccessful  in their appeal, it is likely that the song will enter into the public domain. 

The public domain is a collection of works that have had their respective intellectual property rights expired, forfeited, or made inapplicable.  A work that is within the public domain may be used by any and all people or companies as they see fit, without having to pay a licensing or royalty fee.  Intellectual Property Laws were created to give creators incentives to keep creating by giving the creator a monopoly of rights.  It was never the intention for such monopoly to be permanently given, and once the duration of the protection expired, it would enter the public domain to be free for everyone to enjoy.   

Stay tuned.  

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Julian Cordero is an Attorney, Music Producer, and Entrepreneur.  Oh and he blogs too!  Julian is licensed to practice law in New York and is the Managing Member of Cordero Law LLC, a New York City based law firm focusing on Business Law, Entertainment Law, and Intellectual Property.

Apple's New Headphone Plug and the Problems It Just Created

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Apple has shrunken down the headphone connector, deviating from the standard 3.5mm headphone plug most smartphone users know and love.  

Before I go any further, let me start out by giving a small disclaimer (as a lawyer, I am trained to give disclaimers a lot).  I am writing this on my Apple MacBook Air, after finding out about this on my beautiful Apple iPhone.  In short, I am trying to say that I love Apple.  From the time I bought my very first Apple product, I never looked back.  I loved everything.  However, today I am a bit confused.  I am confused because Apple is about to change everything... again.  

In the smartphone world, there is a race to build the thinnest possible smartphone.  Apple, along with all of the other smartphone companies, are limited to the size of the inner components that make up the phone.  One of these components, is the headphone connector.  Having a headphone plug has become a standard in modern smartphones. And while the 3.5mm headphone plug has been the standard, it is clear that Apple now views this as an inconvenience - hindering their ability to create a thinner smartphone.  Should Apple decide to use this new headphone plug on their future releases, Apple could drastically affect millions of companies and consumers.  

Why is this change so big? 

To understand why, it helps to understand a little bit of patent law (i'm sorry... I don't like patent law either).  Under US intellectual property law, a patent is a right granted to the inventor of a process, machine, article of manufacture, or composition of matter.  When an inventor holds a patent, the patent owner can exclude anyone else from, among many other things, making or selling the invention.  Patents are designed to encourage inventors to continue inventing technology that would benefit the world by giving the owner an incentive to keep creating and sharing.  This incentive is a monopoly.  The earliest a patent monopoly can last in the US is 20 years from the date of application, however, this date can be extended.  

So, in short, no one else can make this new headphone plug for a very long time.    

NO Seriously, this Is a big deal

In Apple's last quarter, it shipped 47.5 million smartphone units, occupying 14.1% of the smart phone market share.  In recent trends, this number has been steadily increasing.  If Apple implements this new headphone plug, at least 47.5 million smartphones will eventually ship, unable to use the standard headphone plug.  

Audio companies selling headphones are thus left with a few options when the new headphone plug comes out: ignore, license, or buy.  

Ignoring the Change

Audio companies cannot ignore the change.  Well, at least the major ones can't.  Apple will likely create an adapter that will assist in the transition of this new headphone plug.  The problem with this is that the plug will likely cost money (not to mention that it will be big and bulky compared to the phone).  Smaller headphone companies, unable to handle any of the other options (as discussed below) without having their profit share crippled, will be forced to depend on users to get the headphone connector.  However, from a practical standpoint, this doesn't work.  The people likely to shell out money for these headphone connectors are people who are particular about the headphones they use.  These same people are thus, likely to purchase headphones from some of the bigger audio companies.  So what happens to the people who are using these smaller headphone companies?  Well, I can't say for sure, but my best guess is that these people will likely just use the standard Apple headphones that will be released to go with the phone.    

Licensing and Buying

 An audio company that is well known and recognized for the quality of their products will likely not ignore this change in headphone plugs.  Several of these companies have benefited over the large number of smartphones sold because of the double function these smartphones serve as a music player.  This makes the iPhone market share too large to ignore.  Thus, these companies will be left with two options.  License or buy.  

Apple will likely license the ability for companies to make their new headphone plug, should they decide to make it the iPhone standard.  Companies would then be able to make their own version of the redesigned headphone plug to incorporate them in their products.  This will likely be at a heavy cost to these companies.  

Another option these companies could explore would be buying pre-made headphone plugs from Apple (or similar companies that licensed the ability to make them).  The audio companies would then incorporate these purchased headphone plugs into their products.  We know Apple will likely do this because they did just that when Apple rolled out the lightening plug over their old iPhone charging/sync connector.  Remember that big annoying plug?  Me either. (Just kidding I still have like 50 of them around my house somewhere).  

Conclusion

Whether a company licenses or buys these new headphone plugs to use with their products, due to small margins, the cost is likely to be passed onto the consumer.  

However, there is no need to panic yet.  Apple has a lot of patents.  Many of which, are never going to be used and were merely designed in anticipation of possible directions Apple could take.  It is possible Apple will not implement this change on their iPhones.  Only time is going to tell what route Apple will take.  

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Julian Cordero is an Attorney, Music Producer, and Entrepreneur.  Oh and he blogs too!  Julian is licensed to practice law in New York and is the Managing Member of Cordero Law LLC, a New York City based law firm focusing on Business Law, Entertainment Law, and Intellectual Property.

Trademarks 101: The Basics of Trademarks

What’s a Trademark? 

Trademarks are a form of intellectual property. A trademark is used to identify and distinguish the source of the goods or services that are being represented by the trademark.  We get it, this is confusing.  In the simplest of terms, a trademark is your brand.  

Trademarks can be letters and words, logos, pictures, a combination of words and a logo, slogans, colors, product shapes, and even sounds.  

Do I have to Register? 

Trademark registration is not mandatory.  (Cue Dramatic Music).  In fact, depending on what state you live in, you may have some rights in your trademarks even if you do not register.  Trademarks that are not registered receive what is known as “common law” protection.  This form of protection varies depending on what state you live in, but in general, the protection will be limited to the areas where you are currently using the trademark.  So for example, if you are selling paper under the name Dunder Mifflin in Scranton, Pennsylvania and do not have a federal trademark registration for the name Dunder Mifflin, another company in Florida can start selling paper under the same name.  

While federal registration is not mandatory, it has several advantages and is almost always recommended.  

Benefits of Registration

Registering your trademark with the United States Patent and Trademark Office (or USPTO as the cool kids call it) has many benefits.  Among these benefits are national protection and and increase in the overal strength of your brand.

Nationwide Protection

Registering your trademark with the USPTO gives you the exclusive right to use your trademark nationwide.  So for example, if our friends at Dunder Mifflin had great lawyers advising them to register their trademark with the USPTO, they could prevent that other paper company in Florida from stealing their name and benefiting from it.

Stronger Brand, Less Problems

While not necessarily a legal consideration, from a business standpoint, unless you plan on being a small mom and pop business that caters to a small selection of people, it doesn’t make sense to not protect and strengthen your brand from the start.  Think about it, you are going to be spending valuable time and resources to promote your brand.  Do you really want to spend all that time and money only to be told years down the line that you need to change your brand?  This is a huge waste and in some cases, can cripple a business.  Trust me, it happens way more than you think.  

Strength of Trademarks

All trademarks are not created equally.  In the trademark world, there are a few categories to describe different trademarks.  The categories are (in order of strength: fanciful, arbitrary, suggestive, descriptive, and generic.  

Fanciful

Fanciful trademarks are the (insert the name of your favorite signer or band here, because you clearly think they are the best) of the trademark world.  A trademark is fanciful if it was invented for the sole purpose of being a trademark, such that it has no other meaning whatsoever.  

Examples of fanciful trademarks are: Exxon, Kodak, and Xerox.  

Arbitrary

An arbitrary trademark generally has some type of dictionary definition before being adopted as a trademark.  However, the trademarks is used in connection with products or services unrelated to that meaning.  Because of this secondary meaning, arbitrary trademarks are very strong marks.  

Examples of arbitrary trademarks are: Apple (for computers) and Shell (for gas stations).  

Suggestive Marks

Suggestive trademarks are marks that suggest a quality or characteristic of the goods and services. While these marks are not as strong as fanciful or arbitrary marks, suggestive marks are one of the most common form of trademarks registered.  The reason for this is due to the marketing advantage of being able to associate a trademark with a particular good or service.  

Examples of suggestive marks are: Microsoft (for computers), Blu-ray (for disks), and PlayStation (for video game counsels).   

Descriptive Marks

Descriptive trademarks are used to merely describe the services or goods where the mark is being used.  A descriptive trademark cannot, by itself, be registered as a trademark because it is inherently weak.  It is possible to register descriptive trademarks if you can achieve a secondary meaning for the trademark.  Secondary meaning means that although the mark is descriptive on its face, consumers are able to recognize the mark as being able to indicate a source of goods or services.  

Examples of descriptive trademarks are: Sharp (for televisions), Digital (for computers), and International Business Machines (for computers).

Generic Marks 

Generic trademarks are not trademarks at all.  The reason for this is because a generic mark is a common name for products or services.  Giving this generic mark any type of protection would essentially create a monopoly, such that the public would suffer greatly if only one person or company would be able to use that mark.  

Examples of generic marks are: salt, smartphone, and social network.  

How Much Does it Cost? 

Trademark registration fees depend on a variety of different factors.  For an updated fee schedule, visit the USPTO Website.

Advice Going Forward

At first glance, the trademark application looks simple.  However, trademark applications are ridiculously complicated.  (Yes, ridiculously complicated is fancy legal term).  Once you start to get into the specifics of the application, it is easy to get lost, confused, or discouraged.  Because of this, the MAJORITY of trademark applications become abandoned or get denied.  

Having an attorney can greatly minimize the risk of your application getting denied.  While results cannot be guaranteed (and if an attorney is guaranteeing results, you should probably run away), having an attorney is your best bet.  

If this is not possible (we get legal costs can be expensive sometimes) it is important to educate yourself as much as possible before going through with the application.  

Trademark fees are nonrefundable.  Don’t make the mistake of randomly submitting a trademark application without either hiring an attorney or educating yourself on the process first.  The USPTO provides numerous sources of information on the trademark application process and should be the first website you visit when deciding to apply for a trademark without an attorney.

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Julian Cordero is an Attorney, Music Producer, and Entrepreneur.  Oh and he blogs too!  Julian is licensed to practice law in New York and is the Managing Member of Cordero Law LLC, a New York City based law firm focusing on Business Law, Entertainment Law, and Intellectual Property.