Does the buying of keyword advertising trigger trademark infringement lawsuits?

The short answer is “yes, it can.” But while there have been many instances of such matters being aired in court, judges across the country have struggled to keep current with the matter and have issued less than uniform guidance. To understand the keyword advertising dilemma, it is important to first understand what keyword advertising is.

Keyword advertising, a multibillion-dollar business, refers to paid advertising on the Internet that links specific keywords or groups of keywords. If you have ever used the Internet search engine Google, you know that typing a phrase such as “sporting goods” into the search area would produce advertising links for sporting goods providers on the side of the screen.

Companies pay for the right to certain words so that customers click on the advertisements that lead to their Web sites. Often, companies pay for each “click-through” that is generated. But the controversy with this type of advertising occurs when companies buy a keyword that is part of a competitor’s trademark, bringing into play the Lanham Act.

In part, the Lanham Act is meant to protect the holder against those who “without the consent of the registrant, use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.”

To establish that keyword advertising violates the Lanham Act, it has to be proven that the trademark was actually used and that the general public would be confused about who is offering the goods or services in question.

Second Circuit courts have often found that the use of a keyword on its own is not a violation of the Lanham Act. Yet outside the Second Circuit, courts have often found the opposite to be true.

For example, in April 2008, the Eleventh Circuit ruled against a company who used a competitor’s trademarks within its invisible meta tags of its website. The court ruled that such practices were in fact trademark infringement.

Microsoft, Google and Yahoo! all sell keyword advertising and have been dragged into some Lanham Act court cases.

When it comes to companies protecting themselves against competitors misusing keyword advertising, it is important to track how your trademarks are being used on the Web. When a violation is suspected to have taken place, one should complain to a search engine, many of who often have their own complaint procedures in place. Experts also recommend that companies make sure they are the highest bidder for their advertising keywords that represent their trademarks to prevent others from using them.

To learn more, visit https://spotoralaw.com/.

Music publishing is a complex process that requires extensive knowledge of proper business practices and copyright law. A music publisher can help songwriters reap the benefits of their creativity.

While publishing their own music is a viable option for artists, the legal issues involved can be messy and complex. In order to avoid dealing with these issues, many artists turn to music publishers for help. Music publishers perform a variety of different functions for songwriters, as they have the expertise required to manage licenses and collect royalties.

One of the most important functions of a music publisher is to help an artist collect royalties. Royalties fall into two main categories: mechanical royalties and public performance royalties. Mechanical royalties are those fees paid to the copyright owner, usually the songwriter and the publisher, for the right to reproduce the song on some type of recording. Under the U.S. Copyright Act, once a song has been commercially released, any other artist can record and release their own version of the song, provided that they pay the copyright owner the minimum statutory royalty rate for every single copy of their version that is pressed or distributed.  This rate increases periodically and is calculated differently for songs that are over five minutes in length.

Public performance royalties are collected when a song gets played in public at a concert, in a nightclub, on television or the radio, etc. The copyright owner of the work is entitled to payment for each performance of the song. However, in order to collect this money, the songwriter will need to register as a member of a performance rights society which will collect royalties from those playing the songwriter’s music.

Not only do music publishers handle the collection of royalties, they also help songwriters manage the licensing of their songs to record companies and other interested parties. There are two main types of licenses that generate income for songwriters: synchronization licenses and print licenses. Any time the performance of a song is accompanied by a visual, a synchronization license is required. These licenses are issued when a song is used in a movie, television show, video game, or other type of visual medium, and the fee varies based on the usage and importance of the song.

A final way of earning income is through print licenses. While sheet music is not as popular as it once was, many songs are still available in print form. A music publisher will issue print licenses and collect income from the sheet music company, and the songwriter will receive a small royalty derived from the sale of his or her song.

Navigating these four possible sources of income can be difficult for an artist to do alone, and the knowledge a music publisher possesses in these areas can be a great benefit to artists. Entertainment and intellectual property lawyer Anthony Spotora commented, “Whereas music publishing seems to exist somewhere in the shadows of the music industry, good music publishers can be worth their weight in gold to songwriters.  In fact, hidden behind many of the ‘majors’ commonly lies a publishing division which often generates more annual revenue than does its label cohort.  And yet, even those who have been cast deep into the music industry itself often do not fully realize the role that a music publisher can play in the life of a songwriter and, more importantly, in the life of his or her music.  A good music publisher satisfies 5 primary duties: exploitation, administration, collection, protection and acquisition.  When they do their job well, many songwriters can finally begin to appreciate what it means to receive ‘pennies from heaven.’ ”

Music publishers can be a great asset to artists, but it is important that songwriters know their rights before entering into an agreement.  As a full-services business law firm Spotora and Associates provides exceptional guidance to songwriters considering entering into a publishing agreement, and has specialized in advising entertainment artists of their legal rights in the areas of intellectual property and entertainment law for over 15 years.

For more information, contact us.