Considering getting a trademark? "Think" again…it may not matter if you thought about it first

Can you imagine being told that you cannot file a trademark just because another group has become more popularly associated with the name you want to trademark?

Imagine you are the owner of a record label and one of your artists is a local popular group named Sacred. After nine years of association under the group name, the group separates. All of a sudden, a different group breaks on the screen and becomes a popular sensation, but they are also named Sacred.  

At this point, you try to trademark the name of your former group, but the other group tries to get the name trademarked as well.

How will it be determined as to whom the owner of the group name legally belongs to? Well, courts seem like they are directing their reasoning objectively regarding this issue. Interestingly, unlike tangible intellectual properties like copyrights and patents, you cannot actually touch a trademark. Therefore, who is to say that a word, name, or phrase, is actually yours? How can a person prove that he or she is the owner of an intangible trademark that is in a sense, just a thought or idea?

A recent court decision has ruled that the in the event where more than one person tries to trademark the same name, the owner will be determined objectively. Meaning, whomever the public believes to be the owner will be deemed the owner.

For example, if you, as the owner of the record label owner from above, wanted to claim legal ownership of the group name Sacred, the public must know you to be more associated with the name Sacred, for both its use and name, more so than the new sensational group. 

This may seem unfair to someone like the record label owner who had formerly used the name Sacred first, but, this is the way that courts are deciding these issues.

However, I think it is unfair to the extent that whoever used the name first should have the legal ownership of the name. But, that too, causes a problem if that is allowed. I see two perspectives for the reasons why problems might arise: Either the law should consider (1) If more than one person files for a trademark, allow the person who was first associated with the trademark to become the legal owner or (2) Protect the person who is more popularly associated with the name in order to prevent others from using the same name just to profit from it based off of another’s use of its popularity.

Perspective #2 is the reasoning for why the law seems to favor the objective approach for determining who a trademark owner will be. So long as it seems fair to the public is what seems fair to legislature when making these laws.

I think that both views stir up problems within trademark law. Is it more important to honor a person’s idea by allowing perspective #1 to outweigh perspective # 2 or is it more important to prevent people from using the name of a popular associated term, word, or phrase, just because they want to make a profit from the popular term, word, or phrase? 

I think this is just a difficult call to make...

"No copyright infringement intended" . . . Why do people think it makes sense to use it on Youtube?

"Anything you say or WRITE can & will be used against you…."

Using the phrase "No copyright infringement intended" is basically providing evidence to the whole world that you are using someone else's property without permission. 

Many people on YouTube upload videos and then disclaim in the description box that no copyright infringement was intended by their video upload. But in essence, that is an infringement in and of itself. I don't understand why it makes sense to MOST people to even use that disclaimer. Why oh why do people think that by acknowledging the fact that they don't have permission gets them off the hook from illegal use or in legal terms, copyright infringement?  

The purpose of someone having a copyright is basically to protect him or her from having someone use their creative property aka intellectual property without permission; therefore, anyone who wishes to use a copyrighted intellectual property must have permission form the owner in order to do so. 

Furthermore, by uploading a video on YouTube without having the permission of the owner of the intellectual property is infringement. Point blank period. I don’t see the logical reason as to why it would make sense to even include a “no copyright infringement intended” disclaimer. By adding to the description that they did not mean to infringe is a complete oxymoron! It implies that a person is FULLY aware of the fact that he or she is using someone's intellectual property without permission yet, he/she publicly states no intention of infringing without permission . . .  -_- . . . where is the sense in that? Unfortunately, it is a commonly used disclaimer on Youtube but it is an obviously conflicting and WRONG statement.

Although such copyright disclaimers are indeed evidence of a copyright infringement against the person who states it, at the same time, I can KIND OF see why it may be understandable as to why people would want to include these types of copyright disclaimers. Looking at this issue in regards to the reform improvements needed in copyright law, I think that these disclaimers actually point out another issue; that there needs to be copyright law reform done like right NOW.

This area of law is difficult and has yet to be fully developed. There are many gaps and undefined regulations within copyright law. In addition, before any reform is established, there will be so many aspects to consider before an effective reform can become effective. One of the most important aspects to me would be the current lack of established copyright laws. In regards to internet use and uploads on sites like Youtube, many owners of copyrights are being deprived of the very thing they were guaranteed by obtaining a copyright.

With that being said, I think if a survey were conducted as to indicate how many people would be sued for copyright infringement, it is very likely that many copyright owners would be able to sue for copyright infringements. More interestingly, I think most of these cases would be easy to prove if the defendants disclaimed the infringement with the oh so common statement "No copyright infringement intended."

However, an instance where I think it would probably make sense to use  "no copyright infringement intended" would be where someone had certain rights to an intellectual property & wanted to disclaim that the extent of his/her rights in its use did not extend to where he/she was trying to take credit that did not belong to him/her. 

But with the constant-evolution of the internet today and how much accessibility to information it so allows, I think this area of law will be difficult for legislatures to come up with a copyright reform. I think the range of accessibility on the internet causes the difficulty in copyright law reform.