When does a trademark become generic?

By Debby Winters

When the public generally uses the name of a specific product as a generic term, it becomes a case of “genericide” – a killing of the trademark by becoming generic. That’s not good for the product because generic terms do not get any trademark protection.

The situation is not common, but it happens.  Common words have begun as trademarks but passed over into the world of unprotectable generic terms.  Examples include aspirinescalator, cellophanedry ice, flip phone, kerosene, thermos, trampoline, and videotape to name just a few.  For some of those, there are other words we could use for the product, but it’s easy to see why we prefer to call aspirin just “aspirin,” rather than “acetylsalicylic acid.”  For others, the term is so ingrained that it’s hard to think of what else we would call the product: what’s the alternative to “trampoline” as a springboard for jumping?

For obvious reasons, owners of dominant trademarks are not keen to have marks cross over the line to become generic terms.  When that happens, the formerly valuable mark, which only they could use on their product, becomes fair game for everybody to use.  That is why the owners of dominant marks often make efforts to “police” use of their marks, or at least to remind the public that it’s a trademark, not a generic term.

We used to see ads every so often reminding us that “Xerox” was a trademark, so you could ask someone to “make a photocopy” of a document, but you shouldn’t ask them to “xerox” it.   Other product names that have fought this battle include “Kleenex,” “Clorox,” “Gore-Tex” and “BoTox.” In addition to Google and its battle, Coke is undergoing the same dilemma. If I asked you whether you wanted a Coke and handed you a Pepsi, would you be surprised or be expecting it? Would you reply with “yes, I’ll take a Pepsi” thinking that Coke was the generic term? The world of generics can be tricky and the companies that own them don’t want people to confuse the trademark with all products or they lose that special protection.

What’s a generic term? Can we google it to find out?

By Debby Winters

This story of generics began because David Elliott and Chris Gillespie registered over 700 domain names that contained the word “google” plus the names of companies, products, people, places, etc. For example, they registered “googledisney.com,” “googlefit.com,” and “googlemexicocity.com.”  Their argument in Arizona federal court was that, because people use “google” as a verb meaning “to perform an internet search,” thus making the mark generic.  Google objected to this and won. That’s when Elliott And Gillespie countered by trying to get Google’s registrations for the GOOGLE trademark cancelled saying that it has become a generic term by filing papers asking the Supreme Court to consider whether the term “Google” has become generic.Google’s response was that even if people use the term generically as a verb, that doesn’t mean that it is generic for search engines.  The federal trademark law allows a registration to be cancelled when the mark “becomes the generic name for the goods or services . . . for which it is registered,” but as Google pointed out, its registrations cover “computer hardware; computer software for creating indexes of information, indexes of web sites and indexes of other information resources” and other, longer descriptions.  The point is that the registrations cover providing a search engine, not the act of searching the internet.  Because all of Elliott And Gillespie’s evidence went to the use of “google” as a verb rather than the use as the name of the goods and services Google’s mark is registered for, Google argued that the evidence didn’t prove anything about the real question in the case.  The district court in Arizona agreed and dismissed the case, and the Court of Appeals for the Ninth Circuit affirmed the dismissal.On Aug 14, 2017 Elliott And Gillespie prepared their last shot by filing a petition for writ of certiorari at the U.S. Supreme Court.  It will be a while before we know anything about whether the Court will even take the case.  The Court denies most petitions without even requesting a response from the other party.  But if the Court is at least somewhat interested, it will ask Google to file a response, and then determine whether to take the case.  Even if the Court decides to hear the case, that’s no guarantee that Elliott and Gillespie will win.  There’s a long way to go before we ditch the term “search engine” and officially start referring to the act of searching as “google.” If you want to keep up with what happens next in this case, continue to read this blog or just “google it!”

IRS Issues Urgent Warning to Beware IRS/FBI-Themed Ransomware Scam

IRS YouTube Videos:

WASHINGTON – The Internal Revenue Service today warned people to avoid a new phishing scheme that impersonates the IRS and the FBI as part of a ransomware scam to take computer data hostage.

The scam email uses the emblems of both the IRS and the Federal Bureau of Investigation. It tries to entice users to select a “here” link to download a fake FBI questionnaire. Instead, the link downloads a certain type of malware called ransomware that prevents users from accessing data stored on their device unless they pay money to the scammers.

“This is a new twist on an old scheme,” said IRS Commissioner John Koskinen. “People should stay vigilant against email scams that try to impersonate the IRS and other agencies that try to lure you into clicking a link or opening an attachment. People with a tax issue won’t get their first contact from the IRS with a threatening email or phone call.”

The IRS, state tax agencies and tax industries – working in partnership as the Security Summit – currently are conducting an awareness campaign called Don’t Take the Bait, that includes warning tax professionals about the various types of phishing scams, including ransomware. The IRS highlighted this issue in an Aug. 1 news release IR-2017-125 Don’t Take the Bait, Step 4: Defend against Ransomware.

Victims should not pay a ransom. Paying it further encourages the criminals, and frequently the scammers won’t provide the decryption key even after a ransom is paid.

Victims should immediately report any ransomware attempt or attack to the FBI at the Internet Crime Complaint Center, www.IC3.gov. Forward any IRS-themed scams to phishing@irs.gov.

The IRS does not use email, text messages or social media to discuss personal tax issues, such as those involving bills or refunds. For more information, visit the “Tax Scams and Consumer Alerts” page on IRS.gov. Additional information about tax scams is available on IRS social media sites, including YouTube videos.

Divorce or Separation May Affect Taxes

Taxpayers who are divorcing or recently divorced need to consider the impact divorce or separation may have on their taxes. Alimony payments paid under a divorce or separation instrument are deductible by the payer, and the recipient must include it in income. Name or address changes and individual retirement account deductions are other items to consider.

IRS.gov has resources that can help along with these key tax tips:

  • Child Support Payments are not Alimony.  Child support payments are neither deductible nor taxable income for either parent.
  • Deduct Alimony Paid. Taxpayers can deduct alimony paid under a divorce or separation decree, whether or not they itemize deductions on their return. Taxpayers must file Form 1040; enter the amount of alimony paid and their former spouse’s Social Security number or Individual Taxpayer Identification Number.
  • Report Alimony Received. Taxpayers should report alimony received as income on Form 1040 in the year received. Alimony is not subject to tax withholding so it may be necessary to increase the tax paid during the year to avoid a penalty. To do this, it is possible to make estimated tax payments or increase the amount of tax withheld from wages.
  • IRA Considerations. A final decree of divorce or separate maintenance agreement by the end of the tax year means taxpayers can’t deduct contributions made to a former spouse’s traditional IRA. They can only deduct contributions made to their own traditional IRA. For more information about IRAs, see Publications 590-A and 590-B.
  • Report Name Changes.  Notify the Social Security Administration (SSA) of any name changes after a divorce. Go to SSA.gov for more information. The name on a tax return must match SSA records. A name mismatch can cause problems in the processing of a return and may delay a refund.

Podcasting- open for all!

By Debby Winters

Recently the podcasting patent for “disseminating media content representing episodes in a serialized sequence” was ruled invalid. That’s good news for all you podcasters out there!

Personal Audio received a broad patent on podcasting and went after other podcasters with infringement suits. They sued, with a vengeance, anyone else who made a podcast that experienced even minor success. They sued NPR, NBC, HowStuffWorks, and dozen others until Electronic Frontier Foundation (EFF) challenged them in court, asserting that the patent was too broad to be upheld.  The EFF won the initial ruling in April of 2015 due to the existence of two particular instances of prior art—Quirks & Quarks, a science show by CBC, and CNN’s Internet Newsroom. The ruling was appealed and the patent was recently struck down on Aug 7, 2017.  Unless Personal Audio wants to take it to the Supreme Court, that’s it.

Podcasters, you can go crazy without fear of reprisal!

here is that opinion


Job Search Expenses Can be Tax Deductible

Taxpayers who are looking for a new job that is in the same line of work may be able to deduct some job-hunting expenses on their federal income tax return, even if they don’t get a new job.

Here are some important facts to know about deducting costs related to job searches:

  1. Same Occupation. Expenses are tax deductible when the job search is in a taxpayer’s current line of work.
  2. Résumé Costs. Costs associated in preparing and mailing a résumé are tax deductible.
  3. Travel Expenses. Travel costs to look for a new job are deductible. Expenses including transportation, meals and lodging are deductible if the trip is mainly to look for a new job. Some costs are still deductible even if looking for a job is not the main purpose of the trip.
  4. Placement Agency. Job placement or employment agency fees are deductible.
  5. Reimbursed Costs. If an employer or other party reimburses search related expenses, like agency fees, they are not deductible.
  6. Schedule A. Report job search expenses on Schedule A of a 1040 tax return and claim them as miscellaneous deductions. The total miscellaneous deductions cannot be more than two percent of adjusted gross income.

Taxpayers can’t deduct these expenses if they:

  • Are looking for a job in a new occupation,
  • Had a substantial break between the ending of their last job and looking for a new one, or
  • Are looking for a job for the first time.

Easy ways for millennials to prepare for retirement

Millennials are in the best position for planning, investing, and saving for your retirement; growing that nest egg as large as it can be. The sooner you start, the more money you will have.

There are two easy ways to prepare for retirement at a young age and both involve Social Security- you know, that thing that Baby Boomers say won’t be there when you retire!

Start a my Social Security account. Having a personal and secure account is easy, but better yet, it empowers you. You can access the services you need in the convenience of your own home without traveling to a local office and waiting in a long line. To view your social security statement, go to www.socialsecurity.gov/myaccount.

As you can see, many of our resources are available online and my Social Security is one of the best places to access vital information about your retirement. We are constantly adding new features to make your experience with us faster and more convenient. You can even replace a lost or stolen Social Security card in certain states.

Did you know that a 20-year-old worker has a 1-in-4 chance of becoming disabled before reaching full retirement age? Social Security will be there for you if you become disabled and cannot work. Accessing your online account can also help you determine your estimated future disability benefits, so why wait. Get started!