Areas of Practice
Intellectual Property FAQs
What are the differences between a copyright, trademark, domain name, tradename and patent?
- COPYRIGHT = ORIGINAL ARTISTIC WORKS
A copyright protects original works of authorship like artistic and literary works, novels, musical compositions, plays, non-fiction works, computer programs, audio-visual works like movies, recordings of performances and certain types of designs, such as those for clothing and furniture.
- TRADEMARK = BRANDS
A trademark identifies the source of goods or services and protects the relationship between the originator or supplier of goods or services and the goods or services themselves and the goodwill built up through that good or service. Technically, a “trademark” for a service is actually a “service-mark.” A trademark includes any word, name, symbol, device or any combination, used or intended to be used, to identify and distinguish the goods/service of one seller or provider from those of others and to indicate the source of the goods/services. The Coca-Cola® logo is an example of a trademark.
- PATENTS = INVENTIONS
A patent protects a useful invention and certain types of designs. A patent owner may exclude others from making, using, selling, or importing its invention throughout the United States without its consent. Already known inventions and abstract ideas cannot be patented. Other countries have their own versions of the patent system.
- DOMAIN NAMES = WEB ADDRESSES
Technically referred to as uniform resource locators, domain names are used by internet search engines to connect a user to an internet website. If the website itself provides the service, then the website can be registered as a service mark (e.g., amazon.com®).
- TRADENAMES = COMPANY NAMES
These names identify the company itself and not its products or services. The tradename of our law firm is Hymson Goldstein & Pantiliat. One of our service-marks is “Our Business Is Your Peace of Mind®.” (The symbol ® indicates that this service mark has been registered with the United States Patent and Trademark Office.)
How do I obtain a copyright?
You have a copyright once a work eligible for copyright protection is created in a fixed and perceptible form either directly or with the aid of a machine or device. However, to sue for infringement and obtain the greatest amount of protection the law provides, you need to file an application with the United States Copyright Office and receive a copyright registration certificate for your work.
If I write a song and send it to myself in a sealed envelope, am I protected?
No. There is no common law protection to a copyright. This may help to provide proof of ownership and show that you owned the work before someone else did. However, the best protection is registering to obtain full copyright protection.
What rights do I have as a copyright owner?
- The right to reproduce and make copies of the work and distribute them for sale or other transfer of ownership;
- The right to prepare derivative works like a sequel or prequel;
- The right to perform the work publicly as in the case of literary, musical, dramatic, and choreographic works.
How do I protect my copyrightable work?
Use a copyright notice © on all works of authorship except phono-records. (For phono-records a “p” in a circle is the form of notice.) Include the year the work it was first published. While this notice is not required, its presence will help in litigation to defeat a defense of innocent infringement. The best protection is to register the copyright within three months of the time it was first published.
How long is the process to obtain a copyright?
It usually takes three to six months from the time the copyright application is submitted.
Is there a way to speed up the copyright process?
An applicant for registration (the “claimant”) can pay a higher fee to expedite the process. Currently, the fee for expedited registration – if for example registration is needed to commence litigation to stop infringement – is $800. The regular fee is $35 if you register online, if the author (the person who created the work) and the claimant are the same person, and if the work is not one for hire. The fee for all other unexpedited registrations is $55.
What is a “work for hire?”
Most typically, this is a work prepared by an employee within the scope of his or her employment. However, an independent contractor can produce work for hire if it is part of a larger body of work, like a compilation or a portion of a motion picture, and the contractor agrees in writing that his/her contribution is a work for hire.
Why register a copyright?
- Registration establishes a public record of your copyright claim;
- You can’t bring a lawsuit for infringement unless your copyright is registered;
- If you register within 5 years of publication of the work, the certificate of registration itself will establish the validity of the copyright in the facts stated in it;
- If registration is made within 3 months after publication of the work or before an infringement of the work, statutory damages and attorney’ fees will be available to the copyright owner in court actions. Otherwise, you are limited to an award of actual damages and profits;
- Registration allows the copyright owner to register with the United States Customs Service for protection against the importation of infringing copies.
What rights do I have if someone uses my registered copyrighted work?
If someone uses your registered copyrighted work, you are entitled to:
- An injunction to stop the infringement;
- Court-ordered impoundment of infringing articles;
- Recovery of actual damages and any additional profits of the infringer or an award of statutory damages for all infringements by one infringer for a sum of no less than $750 and no more than $30,000. If, however, the infringement was committed willfully, the statutory damages may increase to $150,000;
- Within the court’s discretion, recovery of full costs and reasonable attorneys’ fees to the prevailing party.
How long does copyright protection last?
If the copyright owner is an individual, the copyright lasts as long as the individual lives plus 70 years. For works made for hire, pseudonymous or anonymous works, the copyright lasts for 95 years from the date of first publication or 120 years from creation, whichever is shorter.
What is the difference between a trademark and service mark?
A service mark protects services, while a trademark protects goods.
Do I have to register my trademark to receive protection?
No. You may have common law rights. But, registration will enhance your rights if you have federal registration.
Where can I register my trademark?
Most states allow trademark filings. If the mark is used in interstate commerce then you should register with the United States Patent and Trademark Office.
Why should I register with the United States Patent and Trademark Office?
- State registration is limited to only that state;
- Legal presumption to use the goods or services nationwide;
- Creates a legal presumption that you are the owner of the mark;
- Puts public on notice that the mark is taken and that you are the owner;
- Gives you the ability to record with U.S. Customs and Border Protection to help protect against the importation of infringing or counterfeit foreign goods;
- Gives you the right to sue in Federal Court;
- Gives you the basis to register in foreign countries;
- Gives you the right to use the r with circle ®, which indicates that you have a registered trademark with the USPTO.
How long is the process for registering a trademark?
After about three months from submitting your application, the Trademark Office will assign an attorney to examine the application to see it complies with the law and the USPTO’s rules and regulations. A few months later, if there are problems, the attorney will issue an office action. Applicants must respond to an Office Action within 6 months. Once the mark has been approved for registration, it must be published. Any party wishing to oppose the mark has 30 days from the date of publication to file an opposition but can automatically extend the time for opposition by an additional 30 days. If no opposition is filed, the mark should issue a few months thereafter. Generally speaking, we have found that the registration process takes anywhere from 9 to 15 months. However, the timeframe can be decreased if the applicant uses a pre-approved description of the goods and services.
How long does the registration last?
The registration can last indefinitely but must be renewed from time to time. An affidavit of continued use must be filed between the fifth and sixth anniversary of the registration date. Renewals have to be filed between the ninth and tenth anniversary and every 10 years thereafter.
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