Category: Intellectual Property

Intellectual property refers to creations of the intellect for which a monopoly is assigned to designated owners by law. Intellectual property rights are the rights granted to the creators of Intellectual property and include:

  • trademarks,
  • copyright,
  • patents,
  • industrial design rights, and
  • in some jurisdictions trade secrets.
  • Artistic works including music and literature,
  • as well as discoveries,
  • inventions,
  • words,
  • phrases,
  • symbols, and
  • designs, can all be protected as intellectual property.

Intellectual property has a very broad scope and thus it can be said that Intellectual property rights include patents, copyright, industrial design rights, trademarks, plant variety rights, trade dress, geographical indications, and in some jurisdictions trade secrets. There are also more specialized or derived varieties of sui generis exclusive rights, such as circuit design rights (called mask work rights in the US) and supplementary protection certificates for pharmaceutical products (after the expiry of a patent protecting them) and database rights (in European law).

All businesses have intellectual property, regardless of their size or sector.

Thus, it goes without saying that all businesses have intellectual property, regardless of their size or sector. This could be the name of your business, copyright, designs, patents, and trademarks. Your Intellectual property is likely to be a valuable asset. Securing and protecting it could be essential to your business’ future success. In the other words, Intellectual property often translates directly to monetary gain. If you don’t know how to adequately protect your intellectual property, your business is at risk.

Intellectual property often translates directly to monetary gain.

The importance of protecting your Intellectual property can be more easily understood as follows: if you do not protect it, you will have to risk the losing one of the following:

  1. Branding: Establishing a strong brand is pivotal to business success. Protecting that brand is equally important. The name of your company and its logo are part of the branding that sets your business apart. Elements of your brand, from your company name to your logo can be subsumed and eroded. This can damage perceptions in the market of your quality, products, and reputation.
  2. Products: Unique investments that you’ve made developing technologies may be compromised; only through proper patenting, etc. can you ensure that you control and can market the products you develop.
  3. Ideas and thought leadership: Protecting original contributions to the thinking around your industry can be an important step to establishing your company as a market leader. Copyrights ensure proper attribution of your materials.

As such, there is no doubt that, in a business, intellectual property is everywhere. The name that you choose will be your trademark, even the smallest new process created within your firm may be patentable, and much of the creative work of your employees will be protected by copyright. Protecting your intellectual property rights is protecting your business, so you must claim your intellectual property rights before it’s too late.

Have questions? Talk to an experienced intellectual property attorney today! Contact us.

Definition of a Copyright

Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship”, including literary, dramatic, musical, artistic, and certain other intellectual works.  This protection is available to both published and unpublished works.  Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • reproduce the work in copies of phonorecords
  • prepare derivative works based upon the work
  • distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  • perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio-visual works
  • display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio visual work
  • perform the work publicly (in the case of sound recordings) by means of digital audio transmission

(17 U.S.C. Section 102)

Who can claim Copyright?

“Copyright protection subsists from the time the work is created in fixed form.  The copyright in the work of authorship immediately becomes the property of the author who created the work.  Only the author or those deriving their rights through the author can rightfully claim copyright.” – 17 U.S.C, Section 201(a)

Term of a Copyright

For works created after 1978, the duration of ownership is for the life of the author(s) plus seventy (70) years after the author’s death.

For works that are anonymous, pseudonymous, or a work made for hire, the period of time is ninety-five years from the date of first publication, or 120 years from the date of creation, whichever is sooner.

Notice of Copyright

The following symbols are used to show copyright:

(c),  © , Copr. or Copyright

Examples:

  • “Copyright 2017 Albert Justin Lum”
  • “Copr. 2017 Albert Justin Lum”
  • “© 2017 Albert Justin Lum”
  • “Copyright © 2017 Albert Justin Lum”

Why Register your Copyright?

Without copyright registration, damages are limited to actual damages.

With copyright registration, one can obtain statutory damages, up to $30,000 per infringement for innocent infringement (“I didn’t know I was violating copyright laws”) to $150,000 per infringement for willful infringement (“Copyright? Who cares!) as well as attorney fees; and injunctive relief.

What does “Work for Hire” mean?

A “work made for hire” is–

  • a work prepared by an employee within the scope of his or her employment; or
  • a work specially ordered or commissioned for use…
    • as a contribution to a collective work,
    • as a part of a motion picture or other audiovisual work,
    • as a translation,
    • as a supplementary work,
    • as a compilation,
    • as an instructional text,
    • as a test,
    • as answer material for a test, or
    • as an atlas,
  • if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
  • For the purpose of the foregoing sentence, a supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

(17 U.S.C, Section 201(b))

Bottom line, if you hire an independent contractor to create something for you, make sure there is an agreement that whatever is created is made as “work for hire” and the owner of the copyright will be you.

 

Not sure if you should be registering a copyright? Perhaps you’re worried about breaking copyright laws? Read more on how we can help your business with intellectual property!

Definition of a Trademark

The term “trademark” includes any word, name, symbol, or device, or any combination of the above that is

  • used by a person, or
  • which a person has a true intention of using in commerce and applies to register on the principal registry established by this chapter

(15 USC, Section 1127)

Legal professionals refer to trademarks, registered trademarks, and service marks as “marks”.

What are Trademark symbols?

Trademark symbols are notices of trademark ownership. When you see a word, symbol, or picture with a trademark symbol next to it, you know it has been registered in the federal database.

The three types of symbols are:

  1. Registered Mark – R – e.g. Nike’s “Just do it®” has been registered with the U.S. government, so Nike can use the ® symbol with its trademarks.
  2. Trademark – TM – e.g. Starbucks used ™ on their logo while waiting for their redesigned trademark to be approved
  3. Service Mark – SM – e.g. United Airlines’ catchphrase “Fly the Friendly Skies℠” is a good example of a company that provides services using a “service mark”

It’s important to note that companies/brands cannot use the ® symbol until their trademark registration application has been approved by the U.S. government. Pending trademarks should use the ™ symbol.

Ownership and Registration

  • Trademark Ownership – Created by use in commerce.  Ownership is maintained wherever the mark is used in commerce so long as it is used in commerce.
  • Federal Registration – Filed with USPTO – Term of a federally registered trademark – Registration is valid for ten years and is renewable before the expiration of the term.
  • State Registration – File with the California Secretary of State.

Why you should register a Trademark

No Registration – Can only prevent competitors from using a similar mark in a state, or part of state where your trademark was used first.  Governed by state unfair competition laws.  Damages limited to actual damages.

Federal Registration – Can prevent competitors from using a similar mark in all 50 states if competitor did not use the mark before you used your trademark, or before you registered your trademark.  Possible treble damages, attorneys fees and other remedies.  Possible injunctive relief.  Case is in federal court where the infringer has greater difficulty delaying case.

State Registration – Additional evidence of use (instate)

Who should register a trademark?

If you are forward thinking and want to protect your trademark before someone else realizes what a great trademark it is, or a creator who wants to protect their original work/art before someone starts copying it, we can help you protect your intellectual property.

If you’ve already registered intellectual property in the past, but you believe a competitor has infringed upon your intellectual property, we can help you litigate your case.

Have more questions about trademarks? Read more on how we can help your business secure your intellectual property!