Power Sellers Unite

thegolfingdolphin · Joined: 13 Jan 2009 Posts: 695

I have been contacted by a patent lawyer for using a simple phrase that everybody has used or heard being used. It's 5 O'Clock somewhere.

The patent lawyer represents Margaritaville inc. and claims they have a pending patent on the use of this phrase, as it has been a large part of there advertising since 2003.

I replied by saying that although Jimmy Buffett had a duet hit this song title, it was written by two independent song writers, and it has been used for generations, and certainly before 2003. I told him that I was not aware that a person or corp. could patent a simple culture phrase, that has many uses, and even more meanings.

I did agree to stop using it until I get better understanding of our problem.

I hope there are a few good suggestions out there. Any Advise?

elliemay · Joined: 26 Jul 2007 Posts: 1259

Well, I'm certainly not a lawyer. But I did go do a google search. Came up with over 6 million matches and if you click on "shopping" there are over 500 matches.

Soooo....hopefully after you do some more research you can tell them to pound sand.

Maybe Mongoose will pop in and give you some advice.

google search link:

http://www.google.com/search?hl=en&client=firefox-a&hs=L9U&rls=org.mozilla%3Aen-US%3Aofficial&q=%22it%27s+5+o%27clock+somewhere%22&btnG=Search&aq=f&aqi=g10&aql=&oq=&gs_rfai=

thegolfingdolphin · Joined: 13 Jan 2009 Posts: 695

Thanks Elliemay. It started out that I copied one of there items. After telling him that it is indeed an original artwork and I can prove it. It went to the use of the phrase, and conceded that the artwork was more than likely original.

I have heard of people trying to copyright phrases without success and it was always because of a simple cultural phrase that could not be defined original. I think that is the case here.

things4u · Joined: 21 Jan 2007 Posts: 1331

tell them to go after these guys they are using it to
http://images.findgift.com/Graphics/Gifts/250/PR_72992.jpg

along with thousands of other businesses
and look on e bay at all the items for sale tell them to pound sand or just file suit for restraint of trade against them you will win hands down

things4u · Joined: 21 Jan 2007 Posts: 1331

they evidently got it stuck to them before and are just being little spoiled brats lol this says it all they don't have squat to go on
http://www.shernoff.com/legal-news/Jeffrey-Smith-Margaritaville.html

mojavelyn · Posted: Mon Jul 12, 2010 11:39 pm Post subject:

Dolfin, how did you use it?

I got hit by a hershey lawyer over the sale of a Hershey Licenced Sometimes you feel like a Nut... Almond Joy... T-shirt, new with tags bought at K-Mart!

I had the Seller take extra pictures of the hershey made in some South American sweatshop with the Kmart tags still on... replied with First Sale Doctrine... and if they had an issue they needed to take it up with Kmart...

Google First Sale Doctrine...

next... find the first time it was used...

http://en.wikipedia.org/wiki/It's_Five_O'Clock_Somewhere

http://online.wsj.com/public/resources/documents/buffett_complaint.pdf

http://www.trademarkia.com/its-5-oclock-somewhere-77856882.html

http://ask.metafilter.com/97908/Who-said-it-first

Did they give you the trademark number? And how is the tradmark designated for use?

This is the best... I, personally, if it were me... tell them to shove it.

http://www.barrypopik.com/index.php/new_york_city/entry/its_five_oclock_somewhere_drinking_saying/ “It’s five o’clock somewhere” is cited in print since at least 1967. Now to find the facts to back it up.... and you can probably tell the lawyers to kiss off and if any one owns it...

Billy Graham, and seven who were saved
By Lewis W. Gillenson
New York, NY: Trident Press
1967
Pg. 129:
He told himself it was always five o’clock somewhere in the world (London, Rome, Istanbul) so if he wanted a drink at noon his time he always managed to find a part of the world where it was five o’clock.

Listening to America:
A traveler rediscovers his country
By Bill D. Moyers
New York, NY: Harper’s Magazine Press
1971
Pg. 142:
“The doctor said he could have bourbon at five o’clock every day. I let him have a little three times a day. I look at my watch at three different times and figure it’s five o’clock somewhere in the world.”

There are more on that page.

thegolfingdolphin · Joined: 13 Jan 2009 Posts: 695

Nice work Mo. I created a beach scene with tropical drinks and the phrase It's five O'Clock somewhere. I have sold this artwork as various things Clocks, Magnets, T-Shirts, Hats, Prints. Mostly locally through my Gift Shop, but I have wholesaled some items. The artwork about a hundred prints, and the rest all together about 1000 pieces.

So far I have taken it easy and they have already backed off another item they claim patent to. I am sure they will back down on this also. The patent is still pending since 2003. I will however take a stronger stance soon. I am waiting for a reply to some questions I asked to have answered.

How can anyone patent a general phrase such as this? There are far to many uses and meanings.

usiff · Joined: 01 Jul 2005 Posts: 198 Location: Corona, California

Hello thegolfingdolphin,

Watch out for those attorneys... They keep in business by going after small companies...

We had an issue years ago with Ubid.com...

Ubid.com told us we couldn't use the letter U, or U Buy It Now. It was crazy... it did cost us a ton of cash to "settle"... We gave up two domain names to them in the settlement...

I would like to wish you the best! Get a good attorney and stop using that phrase...

If you want the guy that we used... send a PM...

Take Care,

Rene

mojavelyn · Posted: Tue Jul 13, 2010 1:47 am Post subject: Re: Patent Laws

thegolfingdolphin wrote (View Post): › docWrite("quote")Nice work Mo. I created a beach scene with tropical drinks and the phrase It's five O'Clock somewhere. I have sold this artwork as various things Clocks, Magnets, T-Shirts, Hats, Prints. Mostly locally through my Gift Shop, but I have wholesaled some items. The artwork about a hundred prints, and the rest all together about 1000 pieces.

So far I have taken it easy and they have already backed off another item they claim patent to. I am sure they will back down on this also. The patent is still pending since 2003. I will however take a stronger stance soon. I am waiting for a reply to some questions I asked to have answered.

How can anyone patent a general phrase such as this? There are far to many uses and meanings.

You can do a 4 season... multi cities from around the world with the beach in the middle... They can't patent ... all they can do is trademark it to specific items. Like Peeps candies... they tried to keep a sell from selling a t-shirt (use the search here, its been posted here) that was originally sold by Old Navy... Something like Hang with my peeps... Well Peeps trademark is limited to Non-chocolate marshmellow candies.

You can even put a gecko on .... as long as you don't reproduce an exact image of the Geico Gecko or even a standing gecko.

A title cannot be copyrighted... this is why you will see books, songs and movies with the same titles.

The song can be copyrighted... but if the phrase was in use before the writing of the song, the phrase is open...

Remember Ray Charles' version of America the Beautiful? The song was in public domain and is not copyrightable because the rights expired. However!!! His arrangement of the song is copyrighted. You can record America the Beautiful all you want... you just can't use Ray's arrangement.

And since it was used as early as 1964 in a book... and is a joke attributed to Truman... Sowwy Jimmy!!

All of these come under the Office of Patents, copyrights and trademarks... or something similar. Google for the patent office and then look up their patent number and see what is attached. But yeah, it can take years for patents... not so for copyrights or trademarks.

And yes, these lawyers who search the internet will go after anything tht looks even closely resembling infringement. And if you present them with facts... they might back down, especially with earily use.

Check out Taberone.com also.

thegolfingdolphin · Joined: 13 Jan 2009 Posts: 695

The more I work this problem, the more I have to get this settled. I have about $1000.00 in product already made. I have pulled the items from my shop. I would hate to not be able to sell it. This would be a tough loss.

I have asked the lawyer for patent number and specific wording as it relates to this item. I also asked my brother who practices law. He does not think this phrase is copyright-able for the same reasons we all have outlined, but said he would look into it.

mojavelyn · Posted: Tue Jul 13, 2010 12:37 pm Post subject:

They have to give you the numbers when they send the cease and desist letters. They have to tell you which one they claim you are infringing upon. Otherwise, tell em to stuff it. AND... did they email you or did they send you a certified letter?

Only once did I immediately alter a sellers item upon request of a claim by a legal entity... a selelr had a military patch with the squardron's handle of Hell's Angels... and the seller put in Biker patch... The person claiming to be the rep for Hell's Angels Inc Motorcycle gang sent me a very poite email.

I googled him. I found his website. You know Sonny Barger (hell's angels president for years) even has a facebook page?

I changed the sellers title and description took out biker as it was truly a squadron patch and not a biker patch.

There was just something about seeing a 60s+ guy with a bright flurescent orange mohawk and a pot belly ...

thegolfingdolphin · Joined: 13 Jan 2009 Posts: 695

Very comical Mo. He E-mailed me and had embedded in the E-mail the company letterhead and legal terms.

Here is a part of a reply I got a bit ago:

Joel Feldman (feldmanjoel@gtlaw.com) attorney for Margaritaville Enterprises, LLC. (Margaritaville). According to the notice Margaritaville owns and manages Jimmy Buffet-related trademarks including MARGARITAVILLE, JIMMY BUFFETT, CHEESEBURGER IN PARADISE and PARROTHEAD (for example: Trademark Reg. No. 2729442, 2995765, 3002002, and 3555245).

mojavelyn · Posted: Tue Jul 13, 2010 1:47 pm Post subject:

google for the office of patents, trademarks and copyrights... put in those trademarks numbers, and see what they are doing...

But they haven't specifically stated in reference to its 5 o'clock somewhere....
you might have to put the phrase in....
I did find Buffett under several of these...

http://tess2.uspto.gov/

New User Form Search (Basic)

and I found 16 references Its five o'clock somewhere.... and most are Buffetts...

These are the two I"m concerned with....

Word Mark IT'S FIVE O'CLOCK SOMEWHERE
Goods and Services IC 016. US 002 005 022 023 029 037 038 050. G & S: Paper goods and printed matter, namely paper signs, stickers, decals, and postcards
Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Serial Number 78602821
Filing Date April 6, 2005

Word Mark IT'S FIVE O'CLOCK SOMEWHERE!
Goods and Services IC 016. US 002 005 022 023 029 037 038 050. G & S: Stationery, namely, notebooks, note pads, writing paper, sticky notes, memo pads, posters, decals, stickers, transfers, namely, temporary tattoos, picture postcards, greeting cards, gift cards, photograph albums, address books, appointment books, paper party bags, calendars, paper table cloths, paper party decorations, diaries, gift wrapping paper, paper shopping bags, ball point pens, pencils, pen and pencil cases and printed certificates
IC 024. US 042 050. G & S: Towels, washcloths, hand towels, beach towels, kitchen towels, golf towels, oven mitts, fabric banners, blankets, table linen, namely, table cloths, napkins, place mats, and cloth coasters

IC 025. US 022 039. G & S: Clothing, namely, shirts, t-shirts, sweatshirts, tank tops, pants, sweatpants, leggings, jackets, sweaters, bathing suits, underwear, loungewear, sleepwear, scarves, headwear, namely, caps and visors; footwear, namely, socks

Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Serial Number 78979408
Filing Date July 19, 2004

And I did 5 o'clock and only the guys in Washington making booze have the copyright in it.

things4u · Joined: 21 Jan 2007 Posts: 1331

anyone that gives up a domain to an attorney resepenting another company in a settlement needs a better lawyer for them self's sounds like you got railroaded UsIff your attorney just didn't want to do the foot work to prove your case sad but true