| There is an unnerving trend facing American | | | | "registered the domain names VIRGINTHREADS.COM, |
| businesses today: small companies are finding | | | | VIRGINFASHION.COM, VIRGINCIGAR.COM, |
| themselves embroiled in legal battles with an alarming | | | | VIRGINPUBLISHING.COM, and with bad faith intent to |
| frequency. These independent businesses, many of | | | | profit from VEL's VIRGIN mark and with specific intent |
| which are small-scale operations that survive on a | | | | to mislead consumers."(13)The owner of Virgin |
| meager budget, are faced with defending their | | | | Threads, LLC, Jason Yang, says this of his current |
| intellectual property rights- everything from their | | | | situation, "I had planned to trademark Virgin Threads |
| company name to the items they produce and sell. | | | | soon but in November 2004, I was served with the |
| Legal battles over intellectual property have a varied | | | | lawsuit and my lawyer suggested that I do not try to |
| effect on the general public, who will eventually pay | | | | trademark the name until after the lawsuit."When |
| the price of court cases aimed at those who lack the | | | | asked if he intended to bank off the household |
| available means to fight back.In order to understand | | | | recognition of the name Virgin, Mr. Yang responded, |
| the current battle, one must first understand what | | | | "No, I never considered Virgin Threads to be similar to |
| Intellectual Property is. Intellectual Property is defined as | | | | Virgin Enterprises in any way. The thought had never |
| "Property that derives from the work of the mind or | | | | crossed my mind."While Mr. Yang continues to fight the |
| intellect; specif An idea, invention, trade secret, process, | | | | attempt to shut down his website, the cost of the |
| program, data, formula, patent, copyright, or trademark | | | | battle continues to rise. Because of this, the Virgin |
| or application, right, or registration relating thereto". (1) | | | | Threads website features a new department entitled, |
| What does this mean in layman's terms? Intellectual | | | | "Legal Fund". The unique designs sold in this section |
| property is an item with commercial value, such as a | | | | help raise money for the defense against Virgin |
| new purse design, that can be protected by patent, | | | | Enterprises, with a portion of each sale going toward |
| trademark or copyright law.Many business owners in | | | | the Virgin Threads Legal Defense Fund.Despite the |
| the United States are surprised to find that Intellectual | | | | recent headlines and media attention, the majority of |
| Property rights originated with the Constitution (Article 1, | | | | the consumer market remains unaware of these |
| Section 8, Clause 8)(2), which states that Congress | | | | lawsuits and the dangerous trend they represent. Of |
| shall have the power "to promote the Progress of | | | | those who are aware, many do not realize the true |
| Science and useful Arts, by securing for limited Times | | | | effects that will result from these court battles.If the |
| to Authors and Inventors the exclusive Right to their | | | | current bias is allowed to continue unchecked, it will |
| respective Writings and Discoveries."It seems that | | | | leave the consumer in a precarious situation- staring in |
| even the founding fathers felt that we should have the | | | | the alarming visage of a monopoly. The rising costs of |
| right to exclusive ownership and use of our inventions, | | | | protecting and defending intellectual property, along |
| as well as the right to reap the rewards gained by | | | | with the cost to defend against percieved violations, |
| granting permission of use to others.Protection Under | | | | make an extremely hostile environment for small |
| the LawToday, there are three methods through | | | | businesses to survive in, while rendering their growth |
| which intellectual property can be protected. These | | | | nearly impossible.With the disproportionate resources |
| methods include patents, copyrights, and trademarks.* | | | | available to each catagory of businesses, it takes only |
| A patent protects "exclusive rights to a process, | | | | an allegation of infringement to bankrupt many of the |
| design, or new invention". (3)* A trademark protects "a | | | | so-called "little guys". This ability by large corporations |
| name, symbol, or other device identifying a product". | | | | to remove their competition from the outset leads |
| (4)* A copyright protects "literary, musical, dramatic, or | | | | directly to a dominance in the marketplace.Marketpace |
| artistic work". (5)The cost of enacting these methods | | | | dominance (or more plainly described as a monopoly) |
| of protection can be exorbitant. An excellent example | | | | has a direct effect on consumers in the form of limited |
| of the fee for protecting your work is the price tag | | | | choices and higher prices, something even the famous |
| attached to a patent, which can range from | | | | 18th century English economist Adam Smith |
| approximately $400 to $1,000 or more. According to | | | | recognized when he declared: "The price of monopoly |
| one law firm, the actual cost to file a patent for | | | | is upon every occasion the highest which can be |
| something easily described is roughly $2000, while | | | | got."The Loss of Small BusinessesWith the monopoly |
| something more complicated can incur a fee up to | | | | in place, consumers are not only limited on their choice |
| $10,000. (6)While filing for a trademark is typically less | | | | of product, but they could easily be forced to pay |
| expensive, the process can still rack up fees in excess | | | | inflated prices for imported goods.Many large |
| of $1,000 to $1,500 per application. (7)The average | | | | companies are now outsourcing their labor to other |
| start up investment for an arts and crafts business is | | | | countries. As once media source reports, "Forrester |
| $9,000.(8) When you take into consideration the | | | | Research estimates that by 2015, as many as 3.3 |
| requirements on city, county, state and federal levels | | | | million US jobs and $136 billion in wages will move not |
| for business licences, the amount paid out for basic | | | | only to India, but also to China, Russia, Pakistan, and |
| office supplies, the cost to generate a website or | | | | Vietnam."(14)Can we afford to lose our small |
| other marketing materials, and the cost of ordering the | | | | companies? Here's a closer look at what small firms |
| necessities to produce a final product, there is little | | | | (with 500 or less employees) bring to the United |
| room left in the budget for filing for these most basic | | | | States:Small firms* Represent more than 99.7 percent |
| protections under the law.There is more to the story | | | | of all employers.* Employ more than half of all private |
| than just the fees incurred when registering for a | | | | sector employees* Pay 44.5 percent of total U.S. |
| patent. Every patent can be challenged, with many | | | | private payroll.* Generate 60 to 80 percent of net new |
| leading to trial cases with outrageous amounts of | | | | jobs annually.* Create more than 50 percent of |
| money exchanging hands. As one law firm reports, the | | | | nonfarm private gross domestic product (GDP).* Are |
| average cost of patent litigation through trial can range | | | | 53 percent home-based and 3 percent |
| from $500,000 to near $2,000,000- and that amount is | | | | franchises.(15)As these smaller firms close their doors, |
| only for one of the constituents! These costs can climb | | | | local economies suffer. Ramifications from these |
| rapidly for high profile cases requiring intensive work by | | | | closures can take on a ripple effect, bringing higher |
| the litigator, as patent attorneys charge roughly | | | | unemployment rates and affecting areas of life one |
| $200-$500 per hour.(9)Importance of Intellectual | | | | might never suspect.One study purports that, "The |
| PropertyPeople often underestimate how essential | | | | social costs of unemployment" can influence |
| intellectual property rights can be to a business. The | | | | everything from mental health to the cost of social |
| media is rife with examples of battles over intellectual | | | | programs such as Social Security.(16)It is clear that we, |
| property, which range in severity from questionable | | | | as a society, need to take steps to prevent the |
| copying to blatent theft.We can look to the recent | | | | bastardization of our economy in every arena |
| media headlines for a more in depth view of the | | | | available. We must act to protect our small businesses |
| problem at hand.Earlier this year, Nike, Inc. issued a | | | | from extinction.The current system must be examined |
| formal apology to "the members of iconic Washington, | | | | and changed to allow small businesses to protect |
| D.C., hardcore act Minor Threat and frontman Ian | | | | themselves and thier intellectual property. Corporations |
| MacKaye's Dischord Records for "the creation of a | | | | need to be held accountable for their attempts to |
| tour poster inspired by Minor Threat's album | | | | create a monopoly, and the resource gap must be |
| cover"".(10) Why was Nike, Inc. issuing an apology? | | | | closed in regards to the legal system.While there is no |
| MTV reports that, "The poster, for Nike's Major Threat | | | | simple solution, there are routes that can be taken to |
| skateboarding demo tour (used to promote its newest | | | | meet these requirements. However, those routes will |
| line of SB shoes), misappropriated not only the Minor | | | | never be opened until this problem has been |
| Threat logo, but the imagery from the band's 1981 | | | | acknowledged by both the public and the |
| self-titled EP and its 1988 Complete Discography." (10) | | | | lawmakers.The time has come for this |
| Sources have not published any further information on | | | | acknoweldgement. It is time to put an end to this |
| the topic.Another example of this infringement of | | | | steamroller effect.Bibliography:(1) "intellectual property." |
| intellectual property can be found in the case of | | | | Dictionary of Law. |
| Margaret Nicole of Manhattan and Abercrombie & | | | | Merriam-Webster, 1996. GuruNet Corp. 15 Jul. 2005. |
| Fitch Co..According to the New York Times, | | | | Articles of the Constitution, "patent." Investopedia. |
| Abercrombie & Fitch Co. was selling a bag identical to | | | | Investopedia Inc., 2000. GuruNet Corp. 15 Jul. 2005. |
| those made by Margaret Nicole of Manhattan, and | | | | "trademark." The American Heritage(R) Dictionary of |
| Margaret Nicole of Manhattan owner Nicole Dreyfuss | | | | the English Language, Fourth Edition. Houghton Mifflin |
| "said that within two weeks, Abercrombie's lawyer, | | | | Company, 2004. GuruNet Corp. 15 Jul. 2005. The |
| Frank J. Colucci of the New York law firm Colucci & | | | | American Heritage(R) Dictionary of the English |
| Umans, agreed to pull the purse and make a | | | | Language, Fourth Edition. Houghton Mifflin Company, |
| settlement.".(11)Defending the StoreThese stories are, | | | | 2004. GuruNet Corp. 15 Jul. 2005. Fees referenced |
| however, unusual. The majority of small businesses do | | | | from "What does it cost to get a patent?", © |
| not have the means to fight large companies when | | | | Copyright 1993-1998 Oppedahl & Larson LLP. Fees |
| their designs are stolen or their livelihood threatened by | | | | referenced from "How much does it cost to file a |
| lawsuit. Instead, they are forced to hand over the | | | | trademark application?", ©2005 Meyertons, Hood, |
| results of their hard work to colossal corporations | | | | Kivlin, Kowert & Goetzel. "Business Guide - Arts & |
| simply because they can't afford to defend | | | | Crafts", Copyright © 2005 Yahoo!(9)"PATENT |
| themselves.The epitome of this instance would be the | | | | INSURANCE, IS IT WORTH IT?", © 2000, 2001, |
| current litigation brought against the small online retailer | | | | 2002 Bruce E. Burdick(10) "A Brief History of |
| Virgin Threads, LLC.Virgin Threads, LLC was formed in | | | | Outsourcing", (c) Terri Kelly, accessed from Dourney is |
| August 2004, and is currently being sued by Virgin | | | | a mother, owner of Natural Magic Soaps ( and Editor |
| Enterprises. As one media outlet reported, "Virgin | | | | of Craft Revoution ( an online magazine dedicated to |
| Enterprises, Richard Branson's group of companies, | | | | restoring the awareness and appreciation of crafts in |
| has tried to stop others from using the word "Virgin" in | | | | today's world by promoting them, and the talented |
| names and domain names."(12)The complaint | | | | people who create them, as high-value, desirable |
| documents filed in this federal lawsuit indicate that | | | | alternatives to the offerings of big-box stores. |
| Virgin Enterprises believes the defendents named, | | | | |