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Copyrights, Trademarks & Servicemarks
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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.

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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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