Thursday, July 29, 2010

Patenting Illustration Ideas: Not!

Dear Rich: I am in the process of illustrating a book for a friend. I had some ideas about the illustrations and my friend said she would have to patent it right away. This is my idea, so shouldn't I patent it? Should we do it together? How do I go about getting a patent for my illustration ideas? We recently learned that 82% of our blog visitors are coming for the first time. Hmmm...Perhaps that's why we get so many questions from people asking about whether they can dress as Spiderman for children's parties or use Lindsay Lohan quotes at their website. Any of our regular readers (18% or less of our viewers) already know that book illustrations are not protected by patents ... and that copyright doesn't protect ideas. So how do we answer this question without boring our regulars? Uh ... We'll have to think about that ...
Right, you had a question. Although the Dear Rich staff once co-wrote a book about patenting art and entertainment and although we love our co-author's attempts at carving new worlds of patent protection, we can safely say that there is no way you can patent illustrations used in a book. You can, however, acquire copyright in the illustrations. And unless you are an employee, or you signed away rights, or you are co-authoring the book with your friend, you will likely retain the complete copyright to the illustrations without having to do anything. As for your "ideas," for illustrations, we're not sure what you mean but in general ideas can't be protected by copyright.

Wednesday, July 28, 2010

Great Grandpa's Termination: Patents (and Copyrights)

Dear Rich: I have recently come across a patent filed by my Great Grandfather, and believe that the device may still be in use. How can I find out if I am owed royalties on the sale of this tool.
Let's see, we start with the rule that patents granted before June 8, 1995 terminate 17 years from the date of issue; those filed on or after June 8, 1995 terminate 20 years after the filing date.
How old is great grand-dad? Okay, here's where  the Dear Rich Staff needs to get out its calculator. If you're old enough to write us a letter, we're going to guess, you're at least 20, which means you were born by 1990. We'll guess your parents were at least 20 when they had you (so they were born at the earliest, around 1970). That puts your grandparents birth at 1950 and your great-grandparents at the earliest at 1930. (Of course, if much of this kind of  supposing is silly since these estimations are also tied to child bearing ages and of course, that differs dramatically for men and women). Okay, so if your great grandfather was born as late as 1930, it's possible that if he invented something in his sixties (say after 1992), it might still have patent protection. More likely, everybody in your family is older than our lowball estimate and Great Grandpa's patent terminated long ago. 
Does patent termination mean you don't get royalties? A license agreement for a patent should not extend beyond the life of the patent. However, it is sometimes possible to continue to receive royalties for non-patent license purposes--for example, to license a trademark or perhaps certain trade secrets associated with the invention. (Note, even these agreements are sometimes not enforced.) We're guessing this is all very hypothetical in your case and it's unlikely you are owed anything, but you will need to see the original agreements to confirm or deny that possibility.
Speaking of terminations. We keep waiting for someone to ask us a question about copyright termination so that we can link to this copyright termination calculator created by one of our readers. Check it out if you're attempting to evaluate the status of copyright termination rights.

Tuesday, July 27, 2010

Sniffing out dog treat logo trademark

Dear Rich: I have a question about a logo for my business. I just started a dog treat business and loved a public domain clip art picture of a dog. I flipped the picture, changed the color, added some shading on his ear, added hearts above his head and grass under his feet. I added my logo, too. I found the original image on the WP Clipart web site. I emailed the site author with a copy of my changes and asked if since it was public domain, could I use it commercially. He said yes. I am now wanting to trademark or copyright my logo. If so which one do I do: a trademark or copyright? The Dear Rich Staff -- who is wondering why we're getting so many dog-related questions these days -- reports that if you want to preserve the exclusive right to use this image with your dog treats, you'll need to (1) start using it in connection with the sale of your treats (that is, on the packaging or in the advertising) and then, if you have the  budget, you should file a federal trademark registration. Assuming the image is truly public domain (and it looks that way from the source website), then the coast is clear. Keep in mind that anyone else can use the same dog as their trademark, as long as it is does not compete with you in the field of pet food and dog treats. As for copyright, you have a copyright in the version of the dog you created although anyone else is free to use the original without infringing your dog. By the way (insert FTC disclaimer), our employer is one of the few websites to offer help for dog owners and trademark owners.

Monday, July 26, 2010

Will copyright protect my imaginary friend?

Dear Rich: I am writing a children's book based on the imaginary and not so imaginary friends my children had growing daughter's imaginary friend and my son's stuffed dog. The stuffed dog had a name embroidered on it but my son never referred to the dog by that name. He gave it a different name. So in my book I refer to the dog using the name my son used. I had drawn a picture of the dog years ago and had it framed in my son's room when he was young (he's 38 now). I want to give the illustrator that picture so he can use it as a guide for drawing this dog in the book. Would that be any kind of copyright infringement? I wondered if I could have the name tag show the name my son used for his dog rather than the real one. Actually this stuffed dog looked pretty much like Snoopy but in different colors. I assume there was no copyright or patent problem since both of these stuffed animals are sold in stores. The one I'm using was not sold for many years but has recently been re-introduced online. I would not be using a photo of this stuffed dog. The illustration in the book will be modeled after my drawing of this dog.
 You can probably go ahead with your plans. You might run into a problem if you copied Snoopy and Snoopy's owner saw your book and thought your dog drawings were rip-offs. But that presumes a lot of things, including the fact that the stuffed dog is Snoopy or whether it is instead one of hundreds of other stuffed dogs that may or may not be copyrightable. In any case, whatever you can do to distinguish your drawings from the stuffed dog will help -- remember not every cartoon beagle is Snoopy and not every cartoon mouse is Mickey. As for swapping the names, that's more of a trademark than a copyright issue, but it depends on a similar question -- are consumers likely to be confused between the two dogs?
In conclusion. All in all, the meter is leaning in your favor on all of the above. Re: your statement, "I assume there was no copyright or patent problem since both of these stuffed animals sold in stores." We're not sure what you meant exactly, but buying something doesn't give you a right to copy it. You probably knew that but just sayin'.

Thursday, July 22, 2010

Risky Business? Sole Proprietorship Owns Trademark

Dear Rich: I am starting a small business but have not yet incorporated. I want to register a trademark for the business name as it is available but I eventually want the business to own the mark. I have heard there may be liability issues if the company is sued in the future if the trademark was originally registered by an individual (I.e., the individual may also be sued personally along with the corporation) even if ownership of the trademark is transferred to the business. Is it advisable to initially own the trademark as an individual? Typically, when a sole proprietor converts to a corporation, all debts and obligations of the business are assumed by the corporation and that shields the previous owner. Of course, that's a simple take and in reality someone who sues you can name everybody reasonably related to the problem and force them to prove they're not liable. There's no way to prevent being named in the lawsuit; what matters is the ease with which your attorney can personally extricate you.
Keep it Kool. Make sure that when you incorporate, that the corporation assumes all your sole proprietor debts and obligations, that the corporation is sufficiently capitalized, and that you abide by corporate rules. If you don't take corporate responsibilities seriously -- for example, you mix corporate and personal funds and don't keep records of meetings and shareholders -- a judge may strip away the asset protection feature of the corporation. It's called "piercing the veil."
And don't forget ... There are two other simple ways to avoid personal risk for trademarks. One is to buy insurance -- perhaps a wiser investment than incorporating. A typical Comprehensive General Liability Insurance (CGL) policy may provide the coverage you need. Many courts have held that the advertising injury provision included in many CGL policies covers trademark infringement claims. However, not all CGL policies provide such coverage. You should ask your insurance broker whether your policy provides this coverage. If your CGL policy doesn't cover infringement claims, you may be able to obtain such coverage by purchasing a rider to your policy. A second method of lowering your risk is to ... lower your risk. Don't begin using your trademark until you've engaged in a thorough searchFederal registration will also help lower risk by creating the presumption of trademark rights. 
LLC or corporation. By the way, before incorporating, consider an LLC. Your tax advisor can distinguish the benefits. Nolo -- insert FTC disclaimer -- our employer, offers assistance in forming both types of entities.

Wednesday, July 21, 2010

Press Clips: Link or Copy

Dear Rich: I am preparing a news feed of recent articles in which my company's products or website are mentioned in the news. Ideally, we'd like to have a running archive of articles on the website and when you click on the title, it would show you the article in its entirety. We are considering two options: first, we could link the articles to their actual source. Or second and more preferable since we would be able to ensure the link is never dead and we'd keep people on our website, we could link each article to another webpage where we'd have recreated the article (citing the author, source, date, etc). My the second option legal or are we running into copyright problems? You're much more likely to run into problems with the second option. Linking is usually a safe way to convey information that your company doesn't own. We think you'll be okay with reproducing a few sentences and a link back to the full story at its source (although some European courts may disagree). Larger excerpts may cause problems. As for reproducing complete articles, you can always seek permission. Most news sources provide a means for licensing content. For example, the New York Times, like many publications offers a simple process for obtaining a quote and getting permission. To find the permission information, usually there is a link on the bottom of the publication's home page. 
Is it a fair use to reproduce a complete article? We're not sure, though of course it all depends on context, and use. In any case, as far back as 1999, courts were denying fair use arguments for full article reproductions. 
P.S. While we're thinking about it ... it doesn't hurt to avoid using graphic logos from news organizations. You don't want to create the impression that the news organization endorses your company or is associated with it. And your company should be mindful of the FTC "endorser" rules. For example, if you're supplying reviewers with copies, that fact should be disclosed.

Tuesday, July 20, 2010

Can We Use Best Western in Cambodia?

Dear Rich: We are Australians and are taking over the management of a guesthouse in Siem Reap, Cambodia. We would like to call our guesthouse BEST WESTERN GUESTHOUSE because we want to attract the western visitors and volunteers who come to stay in Siem Reap. We are concerned, however, that there is an international hotel chain called Best Western Hotels and that they may try to stop us calling the guesthouse the name we want. We are thinking because it has the word "guesthouse" in the name, and the other has the word "hotel" that there should not be a problem. I have looked on business names register and I cannot find another Best Western Guesthouse. The Dear Rich Staff is fond of Australia, (having once worked at the now-defunct Farmer's Department store). So, we wish we had good news for you ... but our suggestion is to ditch the name. In case you're not aware Best Western has hotels in Vietnam and Cambodia. So, assuming the chain learns of your use, you'll be repainting your sign faster than you can say "cease and desist." As for the use of "guest house" instead of hotel, keep in mind that the company has registered the mark "Best Western" for hotel, motel and resort services. Modifying the words that precede or follow the mark will have little value, especially if you're competing in the same field. You should probably forget about Best Eastern as well.

Monday, July 19, 2010

Let Your Fingers Do the Shaving

Dear Rich: I am trying to find the status of this invention US 3,314,146 dated 1967. I have done my due diligence and can find no answer to whether this invention is still active. If this invention has run its course of 17 years is there any way an inventor by paying fees still keep it active?  Assuming periodic maintenance fees were paid, this patent would have dropped into the public domain in 1984. The invention claimed here -- fingertip rotary electric shavers -- is now available to everyone!  We're not sure why you're asking but the Dear Rich Staff wonders if you're working on a sequel to The Hand. If so, you might want to consider this one, too. 

Thursday, July 15, 2010

They turned my book into an app!

Dear Rich: A number of years ago I entered into an agreement to consult and design for a learn to knitting & crochet book. It was agreed that I retain the copyright of my designs (as they did not want to pay for them). The contract does not state my consulting includes designing original patterns. The "Work" refers to the entirety of the book. "Use of Material" states that they retain full creative control over all of the Work (the book) and elements of all the Work. I was paid to ensure the writing was correct. I also provide designs (with written instruction) to give example of a stitch or type of knitting. A letter was presented at the end of the project giving my "full permission to use my designs for the works of this book, future revisions of this book, and and future translations or repurposing of this book." It has come to my attention that an iTunes app has this entire book published with all my designs. Would "repurposing" include selling to an app? The entire Dear Rich Staff was consulted about your question and our conclusion is that you probably don't have a legal basis to object to the app, although you might want a second opinion from an attorney who can review your paperwork. (Also, a member of our staff does a lot of crocheting and often complains about the errors in the patterns, so thank you for ensuring that the patterns are correct!)
Repurposing. Yes, we think that converting a book into an app is "repurposing." Repurposing, as the word suggests, refers to re-using the work for another purpose--for example, posting it at a website. Converting a book into an app would qualify, as well. There are many outstanding issues though. One is the relationship between your letter and your agreement. Some agreements are considered to be fully "integrated." That means the parties to a contract intend that their agreement to be the complete and final expression of their deal. In that case, with a few exceptions, no contradictory or supplementary pre-contract discussions or documents can be introduced. Post contract discussions, documents, or issues will be considered unless the agreement has a provision specifying how amendments are to be made and the post-contract modification doesn't meet the requirements -- provisions that are not always enforced. (Whew... that's confusing, huh? See why we think you might benefit from having someone look at the paperwork?) We assume you were supposed to receive a one-time payment for your work, not a continuing royalty for books sold. If it's the latter, then you may have additional issues as to how you're supposed to be paid for the app.
Copyright in the designs. We're also concerned  about your claim to copyright ownership. We hope that the agreement you signed spells out your ownership claim. We hope it does not say things like you assign all rights, or that your contribution is a work made for hire. A lawyer might be concerned about other things as well -- for example, did the publisher disclaim your work, when registering the copyright? (You can research the copyright registration here.) On the way other hand, it's possible that some of your contributions (for example, the wording explaining how to do a stitch) may not be protected under copyright principles as copyright does not protect facts, especially when there is a limited number of ways of expressing them.

Wednesday, July 14, 2010

Burning down the doll house

Dear Rich: I want to create original illustrations for a doll house but using existing doll house designs as the canvas for them. The existing doll house designs I am thinking of using were created (and patented) between the 1890s and the 1940s and haven't been reproduced since then though some of the companies or people who obtained the patents might still exist as far as I know. (Googling them hasn't turned up much information.) Since a doll house is a doll house -- meaning that I can't stray much from the original purpose or structural design, just create new illustrations for it -- would I be infringing on their rights? I did a latent patent search and the patents I want to use aren't on that list but I can't tell if it means they have expired naturally or have been extended. The short answer is that you should be fine copying patents from over fifty years ago. Patents from those days lasted 17 years at the most and only in rare cases, were patents extended (and even so, the extension would only be for a year or two). In addition, the majority of doll house patents are design patents (you can tell them because they have a "D" before the numbers) and those patents are narrowly construed. In other words, a few modifications in appearance may remove most infringement concerns. By the way, lately we've been preferring Google patents for patent searching; it seems easier to navigate than the USPTO.
Some other stuff ... Of course, even though a patent has ended, it's possible (though extremely unlikely) that the same dollhouse -- at least if created in the 1940s --  may still be protected under copyright law. We also suppose that a doll house manufacturer could argue that its work is protected by trade dress. In any case, neither copyrights or trade dress protect functional elements which raises the (primarily) academic issue -- is Barbie's pad functional or decorative?

Tuesday, July 13, 2010

Reverse plagiarism: Giving credit where none is due

Dear Rich: Is reverse plagiarism a legal/ethical issue? A textbook author has made up a definition of a word. The definition is accurate. However, instead of saying it is her definition, she wants to credit it to a Merriam Webster dictionary. What support can I use for my argument that she cannot do this? For those who are unaware of the phenom, reverse plagiarism is a strange, predominantly academic practice in which real or fictitious sources are credited when no credit is due. Why would anyone do that? Usually it's because the author is attempting to add credibility to his work, attempting to achieve the minimum number of academic references required for a paper, or to increase the statistical probability of a paper being recovered in search results. Pseudonymous attribution -- for example, listing the famed director Alan Smithee -- is not reverse plagiarism unless the actual director is credited as well (BTW, there is a mathematic Smithee and a scientific one as well). The whole idea is to create the idea that somebody contributed to something when they did not. We can't comment much on the ethics (though discovery of the practice has apparently resulted in articles being pulled from publications). Legally ... In the case you describe, Merriam-Webster could probably bring a Lanham Act claim for false endorsement (and perhaps if the information is used to sell the book, a claim for false advertising). We imagine that the practice could give rise to various claims including  unfair business practices (predominantly a state law claim), possibly defamation and perhaps even invasion of privacy. We're spitballing, a bit but that's because we don't know all the details. If credibility matters, we'd avoid the practice.

Monday, July 12, 2010

When dolls appear in books

Dear Rich: I am an author and intending to write a fictional book about a favorite line of dolls.  I need to know if I must get permission from this company before stepping foot into the venture. Can we presume you're talking about a line of dolls that's currently available for sale? If so, the  short answer is that if your book is "about" the dolls - that is they are the main characters and the plot revolves around the them -- you will likely get hassled unless you have permission. And the Dear Rich Staff thinks its unlikely you will get permission.  Chances are that a large toy/doll company is not going to want to place its precious cargo in the hands of someone who may not portray the little figurines in a flattering commercial light, who may compete with their own books, or who may hinder the company's chances at developing a fictional series.)If the dolls are more incidental to the story line - for example, it's the coming-of-age story about a young girl recovering from a family loss who fantasizes about the erotic origins of a Barbie doll - then you're probably fine. (Wait a second, with that plot, maybe you're not fine!) But you get the idea: the dolls owners have less legal standing if you're incidentally exploiting the copyright and trademark protected characters. Also, keep in mind that the rules are different if someone wants to make a movie out of your book. In that case, the likeness of the dolls will appear and permission is required -- that's why Mr. Potato Head's consent is required to appear in Toy Story 3.  

Friday, July 9, 2010

What qualifies as song copyright deposit?

Dear Rich: When you copyright a song (not a recording) what materials do you really need? Does an audio recording of the song qualify or do you need a lyric sheet/sheet music in written form or any combination of the aforementioned? We assume you're asking about the materials you must deposit when you are registering a musical work (or "song") copyright. The answer can be found in Circular 50Copyright Registration for Musical Compositions. If your song was never reduced to sheet music (probably the case for 90% of the songs written these days), then a CD is fine. (Alas, the Dear Rich Staff is so old that we remember when the rules were different -- yes, a time before CDs and computers -- when we had to pay a music student at the Indiana University School of Music to reduce our songs to sheet music.)  

Wednesday, July 7, 2010

Speed Dating for Copyrights and Trademarks

Today we'll see how many questions we can answer in less than 20 minutes. Ding! 
Dear Rich: Let's say I came up with the brilliant slogan "A Penny Saved Is A Penny Earned" instead of Ben Franklin and titled one of my blog entries with this and discussed various ways to be frugal. That day an executive at XYZ bank reads my blog, likes the slogan, and decides to file for a trademark. The next day I determine that I want to file for a trademark to sell T-shirts or whatever. I know the slogan isn't protected by copyright, but does the fact that I was the one who published the slogan first help me to get the trademark even though I filed later? The Dear Rich Staff really doesn't like hypothetical questions but since it's Speed Dating Day, here goes: The only thing that gets you the trademark is if you use it first in commerce (or if you first filed an intent to use application and then used it in commerce). You couldn't get the mark for using it on one blog entry ... you need to use it as the title of your blog or newspaper column or whatever. And in any case, you would only get trademark rights in connection with your blog, whereas the executive may obtain rights for the same mark for banking services. PS. We understand the need for austerity, but does anybody save pennies anymore ... we mean except for collectors?  
Dear Rich: I'm putting together a website for my sign business. I'd like to publish photos of some signs I've done. Do I have to get permission from my customers to do that? If there was some copyrightable aspect to the signs like an illustration -- something other than a unique layout or type font -- then you should seek permission. If it's basically words on a sign, no. You might want to add a disclaimer: "Display of signs does not imply endorsement." In the future, add a statement to your invoice that you reserve the right to reproduce signs at your website as an example of your work. 
Dear Rich: I wonder, in general, if an older copyright takes precedence over a more recent trademark as it relates to a design and title of the design on knitwear? We're not exactly sure what you mean. If someone has a trademark for the title of knitwear products but does not claim copyright (most likely scenario), you can copy the designs but you can't sell them using a substantially similar trademark. If someone has a copyright on a knitwear design then you can't copy it regardless of the status of the mark. It's unlikely someone has trade dress rights to a knitwear design. If they do, you can't copy that.
Dear Rich: Just as a hypothetical, suppose I write a fantastic song, post a video to YouTube, and it becomes an overnight sensation, racking up tens of millions of views in its first few weeks. Let's say that I then somehow manage to profit from the song's popularity, selling millions of digital downloads through my website. Given the situation, I'm sure majors might come calling, and I'm wondering what kind of a deal I would be able to negotiate. A joint venture where all profits are split? A one-off album deal? Ownership of masters? What points would you recommend shooting for in this instance? We're still not comfortable with hypotheticals but okay, let's say you become a YouTube phenom and a record label comes knocking. Question: why do you need the label? What exactly will they do for you that you couldn't do on your own or with the aid of a savvy manager and/or lawyer? If you're a songwriter, we could see affiliating with a music publisher because that might get you some licensing and other revenue. Really though, we couldn't tell you what kind of leverage you get from being a YouTube phenom, hopefully something nice that will make your parents and your girlfriend proud. DING! We're sad and happy to report that our time is up.

Tuesday, July 6, 2010

Plastic Character Speaks Like Seinfeld

Dear Rich: I have created an electronic speaking character for retail sales. I would like to use the phrase "You are so good looking" from Seinfeld. If the phrase is used in the same manner and same delivery as in Seinfeld, but in a completely different non-human voice coming from a plastic character that does not look human (character does not represent anything on Seinfeld) can I use the phrase legally? We should mention that there was a case a while ago in which two actors from Cheers sued a chain of bars that had installed audio-animatronic figures resembling their characters and that spoke their "trademark" lines. (The underlying legal principles are explained here.) And of course, let's not forget that horrific turn of events when somebody tried to cash in by turning Vanna White into a robot.
We're okay. You're Okay. But we're inclined to think that your situation is different and you'll be okay. That's because you're not reproducing the characters appearance and you're using a non-human voice (although we're not sure what you mean by "in the same manner and same delivery"). And there are no copyright issues because as you know from reading the Dear Rich column, individual phrases, (including individual Seinfeld phrases) cannot be protected unless trademark or related rights have been asserted. Anyway the general rule we usually harp on here at Dear Rich Headquarters is that the more it seems like you're conjuring up a protected character or celebrity, the higher the hassle factor. (Of course, keep in mind there are many ways to get in trouble using that Seinfeld line already got one guy canned.) 

Thursday, July 1, 2010

Gumby on the Dashboard: Fair Use?

Dear Rich: I am developing a 72-page graphic novel and in one of the scenes a truck driver has Gumby and Pokey figurines on his dashboard (as well as a St. Christopher figurine). Gumby and his pony pal Pokey are fully visible in six panels and partially visible in a seventh (the entire graphic novel will consist of approximately 400 panels). I should note that in the panels in which Gumby and Pokey are visible they are not central to the panel but simply can be seen as small figures on the dashboard.  In one panel the truck driver makes a remark about Gumby, favorably comparing his record of averting accidents to St. Christopher's. As you are no doubt aware, Gumby can "walk into any book" and I would very much like to welcome him into long as his presence will be (or at least is likely to be) protected by the fair use doctrine. Please advise as to whether or not, in your opinion, this would be a permitted use of Gumby. The short answer is that the the Dear Rich Staff smells fair use. What you have working for you is that Gumby is being used incidentally to make a point about your character, and he's not being used more than necessary to make that point. Your use is a little less blatant than the 2003 case involving Barbie and various kitchen appliances. On the other hand, there are other fair use cases -- one in which a copyrighted wall quilt was used to decorate a TV character's room. (Not considered a fair use.) Still, we feel that the current trend may be more permissive to uses such as yours and that the needle tilts in favor of fair use. (It's also unlikely that consumers are going to confuse you with the source of Gumby, muting trademark issues as well.) There could be more of a problem if Gumby got more screen time in your graphic novel, was on the cover, or started talking or moving (or perhaps if your graphic novel was remade in claymation).
Our opinion plus $.25. Although we feel like your use is a fair one, keep in mind that our opinion isn't worth much in a court of law (or many other places). And that's the other thing, if Gumby's people wanted to pursue you, you'd have to be able to afford to prove the fair use -- always a wild card in a fair use analysis. 

Selling Trademarks Online

Dear Rich: I would like to put my trademark up for sale. What internet site would be the best place for this in your opinion? We saved this question for today because it's a legal holiday (and presumably a lower than usual readership) and we're feeling very inadequate because we don't have any suggestions for you. As the Internet developed, we've watched auction sites and bartering sites for intellectual property come and go (with the emphasis on the "go"). We tracked a few that are currently operating such as this one and this one and tried to research them to assess their legitimacy ... but we had little luck finding info. We're not sure why we're so wary of sites such as these ... could it be the web design? 
How these sites operate. Trademarks-for-sale sites usually operate by allowing you to buy advertising, by obtaining a broker fee (usually a percentage of the sale), or by a combination of ads and fees (the eBay model). Sites that deal only in advertising (and don't take a cut) seem preferable unless the site is performing some legal overview (unlikely). Typically, these sites don't deal in the paperwork for the assignment and sale and even if they do, it might be wise to have an attorney review the docs to make sure that both the trademarks and the associated goodwill are being transferred.
What also might workTrademark speculators may be attracted to these sites but we wonder whether anyone else is seeking them out. It's not unusual for business owners seeking a trademark to research trademark ownership at the USPTO and then solicit the owner directly. As for sellers, we wonder if they might be better off with industry-specific advertising. For example, if you have a coffee-related trademark, perhaps you would have better luck advertising in the Tea & Coffee Trade Journal or Fresh Cup. Speaking of coffee, we think we should go get another coffee to get over our post-Wolfman nightmares. 
PS. By the way, we don't have the same skepticism for domain name sales websites. Most of these sites --  although you should still check them out -- seemed to have nailed down the procedures (including online escrows) that can legitimately facilitate the sale and purchase of domain names.