What is a Trademark?
A Trademark is any word, phrase, symbol or design or combination thereof that identifies and distinguishes the source of goods from one party from those of another.
Examples include brand names, slogans, logos and tag lines.
What is a Service Mark?
A Service Mark is a Trademark used for a service rather than a product.
Why are they important?
The primary purpose of a mark is to prevent consumer confusion. Additionally as consumers become familiar with the mark and the quality they represent, the marks become valuable business assets.
How to get and keep a mark
Create a mark that has not already been appropriated. The U.S. Patent and Trademark search engine is useful to check if your mark may already be taken.
A mark must be used to be recognized. Apply it to your marketing and goods or services.
Protection and Registration There are three ways to protect your marks.
1. Common Law method.
Registration of a mark is not required. Mark the symbol ™ or SM on the product you wish to protect. Give the product very wide exposure. Rights to the marks begin as soon as the mark is put to use.
2. State Registration:
Marks may be registered with the Secretary of State. However the mark is not protected outside the state.
3. Federal Registration:
Though registration is not required, it provides many advantages. Registration is done through an application found here. You must show either that the mark has already been used in interstate commerce or that you have a good faith intention to use the mark in interstate commerce.
Examining Attorney (Federal Registration)
After the USPTO determines that you have met the minimum filing requirements, the application is forwarded to an examining attorney. If the examining attorney decides that a mark should not be registered, he/she will issue a letter explaining any substantive reasons for refusal. If the examining attorney raises no objections to registration, or if the applicant overcomes all objections, he/she will approve the mark for publication in the Official Gazette, a weekly publication of the USPTO.
The USPTO will send a NOTICE OF PUBLICATION to the applicant stating the date of publication. Any party who believes it may be damaged by registration of the mark has thirty (30) days from the publication date to file either an opposition to registration or a request to extend the time to oppose. If no opposition is filed or if the opposition is unsuccessful, a Certificate of Registration will issue for applications based on use, or a Notice of Allowance will issue for intent-touse applications.
Registration for Actual Use
If the mark is published based upon the actual use of the mark in commerce, or on a foreign registration, and no party files an opposition or request to extend the time to oppose, the USPTO will normally register the mark and issue a certificate about twelve (12) weeks after the date the mark was published.
Notice of Allowance for Intended Use
Based upon the applicant's bona fide intention to use the mark in commerce, the USPTO will issue a Notice of Allowance about twelve (12) weeks after the date the mark was published if no party files either an opposition or request to extend the time to oppose. The applicant then has six (6) months from the date of the Notice of Allowance to either:
- use the mark in commerce and submit a Statement of Use; or
- request a six-month Extension of Time to File a Statement of Use.
Approximately 2 months after the Statement of Use is approved, Certification is issued. When registered, put an ® next to the mark. You may use this symbol only after a mark is registered with the USPTO and not while an application is pending. This is a notice to others who might be thinking of using it.
A Federal registered mark is issued for 10 years. During the fifth year an affidavit must be filed stating the mark is still in use in interstate commerce. It must be renewed every ten years.
The basic fee for Federal registration is approximately $325.00 for an online application.
There are benefits for federal registration:
- It provides constructive notice nationwide.
- You can bring action for infringement in federal and state courts, and, if
- successful, collect treble damages.
- A presumption that the registration is valid and not confusingly similar to other
- registered marks.
- Prevents the importation of goods bearing the same or similar marks (e.g. fake
- File for foreign registration based on U.S. registration.
Experts differ as to whether you need an attorney for this process. You can do it yourself. A lawyer experienced in this process can streamline it considerably and may cost $1000-2000 +. Online assistance is cost less but may not be as effective.
With all applications keep good records to show first use.
What Is A Copyright?
Copyright is a form of protection provided by the laws of the United States to authors of original works of authorship. Works that can be protected by copyright are: literary works; musical works including words; dramatic works including accompanying music; pantomimes and choreographic works; pictorial, graphic and sculpture works; motion pictures and other audiovisual works, sound recordings; architectural works and computer software.
Some things are not eligible for copyright protection. They include: works that have not been fixed in tangible form, titles, names, short phrases, slogans, familiar symbols or designs, ornamentation, coloring or lettering, lists of ingredients, ideas, procedures, methods, systems, processes, concepts, principles, discoveries, devices, any information that is common property such as a calendar or tables taken from public documents.
Benefits Of Copyright
The Copyright Act gives owners of copyright the exclusive right to do and authorize others to do the following: reproduce the work in copies; make derivatives of the work such as a condensation of a book; distribute copies of the work; perform the copyrighted work publicly such as a play or piece of music; display the copyrighted work publicly such as a picture or sculpture.
Who Can Obtain A Copyright?
Only the author or those deriving their rights through the author can claim copyright. In the case of an employee working for "hire" the employer is consider the author. Thus a newspaper would be the author and copyright owner of an article written by a reporter and published in the paper.
How to Secure A Copyright
Copyright is secured immediately and automatically when a work is created. No action in the Copyright Office is required to secure copyright. However, publication is useful and important because it can bear the notice of copyright, the year of publication, and it informs the public that the work is protected by copyright. Publication is the distribution of copies to the public by sale, rental, lease, lending or other transfer of ownership.
Registration with the Copyright Office is useful to concretely establish the date and owner of the copyright and a certificate of registration. Registration is voluntary. If a work is registered at the time of infringement, the copyright owner is entitled to statutory damages and attorney fees.
Applications can be obtained from www.copyright.gov . There is a nominal filing fee.
If you apply for copyright registration, you will not receive an acknowledgment that your application has been received but you can expect:
- A letter or a telephone call from a Copyright Office staff member if further information is needed or
- A certificate of registration indicating that the work has been registered, or if the application cannot be accepted, a letter explaining why it has been rejected.
A lawyer is not required to apply for a copyright.
The use of copyright notice is recommended because it informs the public. The notice consists of three elements: © or the word "Copyright" or the abbreviation or "Copr."; the date of first publication and the name of the owner of the copyright. Copyright Notice is visible on the published work. For sound recordings the letter P in a circle is used instead of ©.
For How Long Is A Copyright Good?
A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. If the work is made for "hire" such as a newspaper the duration of the copyright is 75 years.
A copyright is personal property and subject to state laws dealing with personal property. Because it is personal property it can be bequeathed in a will or transferred as with any other piece of personal property.
Copyright, Patent, Trademark?
There are times when you may desire a combination of copyright, patent and trademark protection for your work. You should consult an attorney to determine what forms of intellectual property protection are best suited to your needs.
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