So which do you need - a copyright, trademark or patent? Well, the answer depends on the type of intellectual property you are seeking to protect.
The field of law is collectively called intellectual property and it deals with exclusive rights you are entitled to as the owner of these intangible assets.
This cheat sheet shows you the steps you need to take to protect the creations of your mind; which may include musical, literary, and artistic works; inventions; and words, phrases, symbols, and designs.
PROTECT YOUR ORIGINAL ARTISTIC OR LITERARY WORK
Copyright Law Protects Your...
- Literary works
- Musical works
- Dramatic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
protects the creator’s work the moment such work is “fixed in a tangible medium of expression…from which [it] can be perceived reproduced, or otherwise communicated . . . .”
Technically, no action is needed to protect your copyright after it is "fixed in a tangible medium". However, if you seek to protect this asset, you must take all the steps you can now to minimize any dispute regarding your ownership claim in the future.
A copyright notice is an easy way for you to protect your ownership claim of the intangible asset. Because this notice is your public claim to the asset, it makes it difficult for someone who infringes to argue that they were not aware of your copyright.
Structure of Your Copyright Notice
- Your copyright notice of must in a place that “give[s] reasonable notice of the claim of copyright.”
- Your copyright notice should typically includes the copyright symbol, ©,
- It must also include: (i) the year of first publication, and (ii)the name of the owner of the copyright.
AN EXAMPLE OF A COPYRIGHT NOTICE
© 2008 Berkman Center for Internet & Society.
Though you can easily protect your copyright by simply affixing the asset to a tangible medium or using a copyright notice, registering your copyright with the U.S. Copyright Office can provide additional advantages:
- worldwide public record of your copyright and is not limited to those who see your work with the copyright notice attached. .
- The right to file suit to enforce copyright in federal court.
- The registration in and of itself is evidence that your copyright is valid.
- You get the right to statutory damages and attorney's fees.
PROTECT YOUR BUSINESS NAME, LOGO AND/OR SLOGAN
Trademark law allows customers customers to differentiate between different businesses in the same field.
In so doing, it makes it unlawful for a business to use a slogan, a logo, a name in connection with a good or service that is confusingly similar to one that is already trademarked.
Unlike with copyrights, your intellectual property does not have automatic rights to a trademark. Your business name, logo or slogan have to meet certain criteria to qualify for a trademark. Follow the steps below to successfully secure your rights under the trademark laws.
- These include names that are (a) fanciful, (b) arbitrary or (c) suggestive.
- These can be trademarked IMMEDIATELY
- These include (a) names that describe the product or service directly, (b) ones that merely uses a person's name or (c) names that describe the geographic location of a good or service.
- These can be trademarked AFTER EVIDENCE OF SECONDARY MEANING
- These types of business names are identical to the product or service to which it attaches.
- Can NEVER Be Trademarked:
After choosing your business name, conduct a search to ensure that someone else is not already using it in a similar field.
1) Search via Searh Engine
2) Search via TESS - the federal trademark database.
3) Trademark Registry For Your State or the District of Columbia
After successfully completing Steps 1 & 2, it is now time to secure your trademark so that you may get the protection afforded under the law. There are three ways to do this:
GET LOCAL TRADEMARK RIGHTS
(I) Attach The 'TM" Mark To your Business Name, Logo or Slogan When Engaging In Business Activities
- In so doing you will acquire "common law" trademark rights
- Generally, this is limited to the geographical area in which the trademark has been used.
- EXCEPT: If you use this type of trademark on the Internet, you are presumed to have national trademark rights;
- BEWARE!! If your mark is confusingly similar to someone else's, you will not obtain trademark protection and you may be held liable for trademark infringement or dilution.
(II) Register The Trademark With Your State
- By doing this, you get trademark protection with the entire state but only within that state.
- Your entry in your state's trademark registry will put other people on notice that you have exclusive rights to the trademark within the state in question.
If someone has a trademark that is similar to yours but it is registered with the United States Patent & Trademark Office (see III below), their national trademark registration will usually trump your state registration.
- EXCEPT: If your state trademark was in use before the date they first used their national mark, you will retain exclusive rights to the trademark within your state.
- There is no specific symbol to designate state trademark registration.
GET NATIONAL AND INTERNATIONAL TRADEMARK RIGHTS
(3) Register The Trademark With The United States Patent and Trademark Office("USPTO").
- Doing this gives you presumptive ownership and exclusive rights to the trademark throughout the entire U.S. of the trademark ownership and exclusive right to use the trademark throughout the U.S.
- EXCEPT: If someone registered the same or similar trademark in a state before you first used your registered trademark, that individual's rights to the trademark will supersede yours in the state in question. (See II above).
- Being a part of the national trademark registry will let others know that you have exclusive ownership the trademark throughout the country.
- Having a nationally registered trademark can be the basis for obtaining registration in foreign countries; and
- Having a nationally registered trademark gives you the ability to file a suit related to trademark infringement in federal court.
- Doing this will give you the right to recover the defendant's profits and up to three times your actual damages, as well as your attorney fees if the court finds the case to be exceptional.
- Only trademarks registered with the USPTO are allowed to use the 'R' symbol.
PROTECT YOUR INVENTIONS
Patent law provides ownership rights and protection for:
- Unique processes, procedures & methods,
- Inventions, and
Patent law gives the patent owner the exclusive right to exploit (i.e. create, use, sell, distribute) the invention for a limited period of time (typically twenty years from the time of a patent application filing).
Patent law's purpose is to spur innovation by giving inventors a financial incentive to invent.
For general information, see the U.S. Patent and Trademark Office's General Information Concerning Patents
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