Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Dear Rich: I have a question. My school is making me submit my term paper through a company called Turnitin.com. That company checks the paper against other papers for plagiarism. That seems illegal. Don't I have a right to not submit it through Turnitin? Isn't it just like when people have a right to not take breathalyzer tests? I'm so glad you asked. As you're aware, Turnitin.com is a repository for student papers and bills itself as "the standard in plagiarism prevention." According to the company's website, your paper will be compared to 15 million (or 40 million, depending on who you believe) papers that Turnitin already has on file.

One question that arises from the company's use of student papers is whether it's committing copyright infringement. The company says no, that it's a fair use because they're using the papers for a transformative purpose -- catching cheaters. When students object to the practice, the lawyers for Turnitin.com respond that their website prevents copying by students -- a goal of copyright law. Hmm. As to whether the practice actually is a fair use, we'll have to wait and see what the courts decide, and at least one such case has been filed. (BTW kids, if you're copying Dear Rich blog entries into your term papers, you have nothing to worry about; nothing's been filed at Turnitin... yet.)

As for your right to not take a breathalyzer test, that's a little bit out of the Dear Rich universe. However, since Rich once was required to edit books on motor vehicle codes, he can assure you that there is a downside to not taking a breathalyzer when requested. Many states have implied consent laws, which means that by getting a license, your consent to take a breathalyzer is implied, and if you don't, you could be fined, lose your license, or get sentenced to time in jail. So think carefully before refusing a professor's or police officer's request.

Dear Rich: I have a question. I want to trademark a product that I will sell primarily in gay catalogs and I want to use the word "queer" as part of my trademark. I've heard that I'll have trouble if I try to register it. Since registration costs $325, I'd like to know if that's true before I file. I'm so glad you asked. There are dozens of trademarks with the word "queer" that have qualified for federal registration including Queer Beer, Queer Channel, Queer Duck, Queer Eye for the Straight Guy, and my personal favorite, The Coast is Queer. So it's unlikely that the USPTO will hassle you based on that term alone. It's true that the USPTO can reject marks that are scandalous and twice rejected the "Dykes on Bikes" trademark. However, that mark eventually achieved registration after the organization sponsoring the registration demonstrated that the term "dyke" was not disparaging to lesbians. (The trademark also survived a legal attack by a lawyer who claimed that the term denigrated men.) It's true that some terms are still considered as scandalous and derogatory but, assuming nobody is using a similar mark on related goods, you won't end up donating $325 to the feds. P.S. Did you know you can save $50 by filing your trademark as a TEAS PLUS application?