Intellectual Property FAQ
A Copyright is a bundle of exclusive rights granted under Article I, Section 8 of the US Constitution: Congress has the power … “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Copyright Act of 1976 (the “Act”) provides specific rights and remedies to authors of original creative works fixed in any tangible medium of expression, whether published or not.
The Copyright Act of 1976 protects creative expression: literary, dramatic, and musical works; pantomimes and dance; pictorial, graphic and sculptural works; audio-visual works; sound recordings; and architectural works. Essentially, any original “expression” is eligible for copyright protection as soon as it is fixed in a tangible form.
However, items like Ideas, Facts, Titles, Names, Short phrases, and Blank forms are not eligible for copyright protection. Also duration of the protection afforded by copyright Duration of protection lasts in large part on when the work in question was created. Whether the work was created before or after January 1, 1978 could have a substantial effect on the life-span of the copyright.
If published before 1978, the copyright expires 75 years from the date of publication (if the copyright was renewed). If published after 1978, the copyright will expire on December 31, 2002. If published between 1978 and the present and the copyright is owned by an individual the copyright will last for the life of the author, plus an additional 50 years. If published between 1978 and the present and the copyright owned by the employer of the author, the copyright will last 75 years from the date of publication, or 100 years from the date of creation, whichever occurs first.
You may use any original material you create: graphics, audio, text, or video.
You may license material. If an item like a picture was created by someone else and the copyright has not expired, then permission must be sought for the right to use that item from the copyright owner.
You may also use works deemed in the “Public Domain.” The Public Domain contains all works that for whatever reason are not protected by copyright. As such, they are free for all to use without permission. Works in the Public Domain include characteristics such as: a lost copyright, an expired copyright, owned or authored by the federal government, specifically granted to public domain, or just non-copyrightable.
There are some advantages to registering your work with the Copyright Office. In order to sue for infringement a work must be registered with the Copyright Office. However, one may register after the infringement occurs.
First, gather as much evidence as you can. Second, consult with an experienced lawyer. A lawyer can help you identify the scope of your protectible rights and determine whether those rights have been infringed. Lastly, consulting with an experienced lawyer will help you identify the appropriate next steps to take to enforce your rights.
A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name or source-identifier.
Federal registration is not required to establish rights in a trademark (see below), nor is it required to begin use of a trademark. However, federal registration can secure benefits beyond the rights acquired by merely using a trademark. For example, the owner of a federal registration is presumed to be the owner of the trademark for the goods and services specified in the registration, and to be entitled to use the trademark nationwide.
Since the USPTO’s authority is limited to determining the right to register, only a court may render a decision about the right to use a trademark, such as issuing an injunction or awarding damages for infringement. It should be noted that a federal registration can provide significant advantages to a party involved in a court proceeding.
Trademark rights arise from either actual use of the mark, filing of a proper application to register a mark in the state where the trademark is being used, or the filing of a proper application to register a mark in the Patent and Trademark Office (PTO) stating that the applicant has a bona fide intention to use the mark in commerce regulated by the U.S. Congress.
There are two related but distinct types of rights in a mark: the right to register and the right to use. Generally, the first party who either uses a mark in commerce or files an application in the PTO has the ultimate right to register that mark. The PTO cannot provide advice concerning rights in a mark. Only a private attorney can provide such advice.
Generally, you should not use someone else’s trademark without authorization. However, the law allows for certain “fair” uses of trademarks where “the use of the name, term, or device is a use … of the party’s individual name in his own business, or of the individual name of anyone in privity with such party, or of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin….”
No, but it is highly recommended. Registering your trademark with the USPTO creates rights throughout the entire United States and its territories, and includes your registration in the publicly accessible database of registered trademarks. You can use the ® symbol and you can generally rely on those rights to protect your trademark as you expand your business across state lines.
The benefits of federal registration include:
- Public notice to anyone searching for similar trademarks.
- The legal presumption that you own the trademark and have the exclusive right to use it. The registration certificate proves ownership, eliminating the need for certain evidence.
- A basis for trademark protection in foreign countries.
- The right to bring a lawsuit concerning the trademark in federal court.
- Ability to record your registration with U.S. Customs and Border Protection (CBP) to stop the importation of goods with an infringing trademark.