| Copyrights
©
A
copyright is an exclusive right granted by statute
to the author of an original work for a limited
period of time to make multiple copies of the
author's work. Works that may be the subject of
copyright include literary, musical, choreographic,
pictorial, graphic, sculptural, software and
audio/visual works.
Rights
Section
106 of the Copyright Act generally gives the
copyright owner certain exclusive rights. These
rights include:
- Reproduction
of the copyrighted work.
- Preparation
of derivative works.
- Distribution
of copies.
- Public
performance of the copyrighted work.
- Public
display of the copyrighted work.
Copyrights
cover only the "expression" of the author,
that is the work itself. Copyrights do not protect
the ideas included therein. Copyright protection
arises as soon as the work is created and fixed in a
tangible medium. The copyright is owned by the
author. The copyright lasts for the lifetime of the
author plus 50 years after the author's death. An
author may also transfer his copyright interest to
someone else. These works, referred to as "work
made for hire", last for 75 years from
publication or 100 years from creation, whichever is
shorter.
Registration
A
copyright work may be registered with the U.S.
Copyright Office in Washington, DC. It is not
necessary to register a copyright, but registration
provides many advantages. For example, the owner of
a registered copyright may be able to collect his or
her attorney's fees from an infringer. Applying to
register a copyright is relatively easy and low
cost. The copyright office provides a helpful
information service by calling (202) 707-3000.
Through this number you can get information on
registering your copyright. There is also a separate
"Forms Hotline" number, (202) 707-9100, to
request forms free of charge. The process is
relatively simple and the fees are modest.
Employees
The
law generally provides that works created by a true
employee in the course of employment and for the
benefit of the employer are works made for hire and
therefore owned by the employer. However, companies
often deal with independent contractors to develop
computer programs or do other work for the benefit
of the company. It is important that the company
have a written agreement with the independent
contractor/author providing that the deliverable
product is work made for hire owned by the company.
Notices
and Fair Use
Once
you have a copyright work, it is best to place a
notice of copyright on the work. The notice should
include the word "copyright" or the
"circle C", and the year of publication,
followed by the name of the author or other owner of
the work. For example: Copyright 1994 Acme, Inc.
With software, the notice should be placed on the
physical media and in an early screen, if possible.
The
copyright owner's exclusive rights have some limits.
The law provides that someone else may make
"fair use" of copyright materials without
infringing the owner's interest. Fair use includes
limited usage in connection with criticism, news
reporting, teaching and research.
Be
aware that many publishing companies take a very
aggressive approach to enforcing their copyrights.
For example, many companies, large and small,
purchase periodicals, journals and reports for their
employees' use. It is not usually a "fair
use" to make multiple copies of these
publications to circulate among employees. Companies
engaging in this practice may sometimes be surprised
to find they have been sued for copyright
infringement because of this practice.
.
Trademarks ™
and Servicemarks (sm)
Background
A
trademark is a word, name, symbol or device, or a
combination of these, which is used with goods to
distinguish them from the goods sold by others. For
example, "Snickers" for a candy bar.
Servicemarks are like trademarks, except they
identify services, such as "Burger King"
for restaurant services.
Trademark
Rights
Trademark
rights are obtained through use of a trademark on or
in connection with the goods or, by displaying the
servicemark in the sale or advertising of services.
Because the rules for both kinds of marks are
basically the same, we'll refer to both trademarks
and servicemarks as simply "trademarks".
Ownership in a trademark exists as soon as you use
it properly, subject to the rights of any other
person using the same or a confusingly similar
trademark.
Trademark
rights last forever, as long as the mark is not
abandoned and does not become generic.
Selecting
a Trademark
Selecting
the best trademark is important. These symbols can
be strong or weak. The strongest trademarks usually
have the following characteristics:
- They are
unique. Ideally, your trademark will not be used
by anyone in another line of business.
- They are
often arbitrary or fanciful. That is, they often
have no logical connection to the goods. For
example, "Mustang" seems to have
nothing to do with cars.
- They are
often suggestive. If the trademark conjures up a
good image or impression, it is helpful.
- They are
usually not descriptive. Terms like
"car", "TV Repair" or
"Hi Fi" are not good to use with those
products and services, because they can't be
used exclusively.
- They are
rarely surnames or geographic names. While some
well known trademarks use surnames, it is rare.
It takes a great deal of time and marketing
dollars before consumers first think of your
name as a trademark, rather than the identifying
owner of the business.
After
selecting a trademark, it is usually a good idea to
search for any prior conflicting uses. A trademark
lawyer or search firm will, for a fee, search public
records to determine if others are using a similar
mark. While a search is not absolutely necessary, it
is almost always a good investment to help avoid
problems.
Registering
a Trademark
If
you have not yet used a trademark, but you intend to
use it, it is possible to obtain the trademark
rights by filing a trademark application with the
U.S. Patent and Trademark Office (USPTO). Although
your registration will not be issued until you
actually use the mark and file proof of use with the
USPTO, the application establishes a priority date.
This protects your rights in the trademarks against
others that later use it.
A
trademark can be registered with the USPTO and most
of the 50 states. Because trademark rights exist
automatically as a matter of law, it is not
absolutely necessary to register a trademark.
However, there are many advantages to registration.
If you register your trademark with the USPTO, it
will help to make sure you can use it as you expand
your business throughout the U.S.. Registration with
a state office provides benefits for use of the
trademark only in that state. It also makes it more
difficult for someone else to later use or register
a similar trademark.
Protecting
a Trademark
Once
you have established a trademark, it is important to
take steps to protect it. First, if your trademark
is registered with the USPTO, be sure to use the
"R" sign with your mark. Second, if anyone
infringes on your mark, immediately take action to
stop the infringement. This can sometimes be done
with a "cease and desist" letter. At other
times, a lawsuit is necessary.
Make
sure your employees, customers and associates report
any potentially infringing use to you. Many
trademark owners employ a professional service to
keep track of activity in the USPTO to identify
potentially confusing marks that have been
published. Infringement can exist when there is
likelihood of confusion in the marketplace between
the goods with your trademark and the goods of the
infringer.
Protect
your mark against dilution. Dilution can occur when
others who are not your direct competitors use your
mark. The value of the mark is watered down, or
diluted, affecting its strength and selling power.
For example, use of the mark "Cadillac"
with wristwatches could conceivably lead to dilution
of that trademark. For dilution to occur, your
trademark does not have to be famous, it only has to
be distinctive.
Don't
let your mark become generic. A trademark can become
generic when it becomes recognized by the public as
the common name for a product, rather than an
indication of the source of the product. For
example, Shredded Wheat, Thermos and Super Glue are
all former trademarks. Notify anyone using your mark
in a generic sense to cease and desist.
Remember,
a trademark is proper adjective always followed by a
noun which is the generic name of the product, i.e.,
"Kleenex tissue". It should never be used
as a noun or verb. Take care not to use your mark in
a generic sense in your promotional materials, and
watch for such uses by others in essays, newspaper
articles and commentary.
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