Legal Question in Intellectual Property in California
Can I create a TV commercial for a Kia Dealership and use "k-k-k-Kia!" in the same rhythm and tone as the old Chia Pet jingle without copyright issues? Original Chia Pet TV spot for reference www.youtube.com/watch?v=tzY7qQFij_M
1 Answer from Attorneys
No, I would not do this. The chime itself can be a federally registered trademark (like the NBC chime) and even if not they can still claim rights under common law. So doing this can certainly invite trouble and that would simply not be worth it.
Further, whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence upfront and before you submit an application to the USPTO. In the US, this means searching under both federal (USPTO) as well as common law because trademark rights stem from use in this country NOT registration. This means that acquiring a federal registration does not necessarily mean that you are not infringing on another's intellectual property. See the link below for a detailed explanation of the due diligence process and a guide on how to choose a strong trademark:
http://www.lanternlegal.com/trademark_due_diligence.php
http://www.lanternlegal.com/test_trademark.php
If you would like to discuss further over a free phone consult, feel free to contact me anytime that is convenient.
Our firm is now referred by the American Bar Association (see under the New York section):
http://www.americanbar.org/groups/delivery_legal_services/resources/programs_to_help_those_with_moderate_income.html
Kind regards,
Frank
www.LanternLegal.com
866-871-8655
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.