Our country thrives on the marketplace of ideas. Protecting your intellectual property rights is essential to profitability.
Disclaimer: Our law office has provided the below information as a point of reference to help you understand the basic/common intellectual property law issues that we deal with and to help you answer basic questions. The below information is not a substitute for consultation with an attorney and should not be considered as much. The below information does not constitute our firm offering you legal advice.
- What is a copyright?
A copyright is what we call the protection given to original works of authorship that are in a fixed, tangible medium of expression. A “fixed, tangible medium of expression” means that before our original work can have copyright protection, it must be able to be perceived, reproduced, or otherwise communicated. In other words, there needs to be some way the person seeking copyright protection can convey their work to others.
- What sort of works can be copyrighted?
- The following works can be afforded copyright protection:
- Literary works;
- Musical works, including any accompanying works;
- Dramatic works, including any accompanying music;
- Pantomimes and choreographic works;
- Pictorial, graphic, and sculptural works;
- Motion pictures and any other audiovisual works;
- Sound recordings; and,
- Architectural works.
- What sort of things are not capable of copyright protection?
- Generally, the following things are not copyrightable:
Ideas. For example, you cannot copyright the idea of a play involving star-crossed lovers. However, you could, for example, copyright the dialogue from West-Side Story (which is a play about that particular idea).
Procedures, methods, systems, processes, concepts, principles, discoveries or devices. This should be distinguished from any of these enumerated items if they are described, explained or illustrated.
Works that have not been “fixed” into a tangible medium. For example, a choreographic work that has not been recorded. Or, for example, an improvisational speech or performance that has not been written down or recorded. In order to be afforded copyright protection, works must be in a fixed, tangible medium.
Titles, names, short phrases, slogans, familiar symbols or designs, lettering or coloring, or mere listings of ingredients and contents. However, some of these things depending on how they are used may be perfectly protectable under trademark law.
- Unoriginal works or works consisting entirely of information that is common property. One of the requirements for copyright protection is that the work have a minimum level of creativity.
- What are the rights of a copyright owner?
- Section 106 of the United States Copyright Act gives copyright owners the following exclusive rights:
- The right to reproduce the copyright in copies or phonorecords;
- The right to prepare derivative works based on your own work;
- The right to distribute copies of the work to the public by sale or transfer of ownership, or by rental, lease or lending;
- The right to perform the copyrighted work publicly;
- The right to display the copyrighted work publicly;
- In the case of sound recordings, digital audio transmission rights.
- How and when is copyright protection acquired?
The law gives you rights in an original work of authorship the moment you put it into a fixed medium. However, the best practice is to file for registration of your copyright with the United States Copyright Office. Registration with the United States Copyright Office not only puts the public on notice of your copyright, but it is also relatively inexpensive.
- What sort of internet issues does your firm handle?
Even though the internet has been around for awhile, the law with respect to handling internet issues is fairly new. Our firm can help you identify the legal issues that you will be faced with as a website owner as well as how the law plays a role on the interplay between the web and copyright and trademark owners.
- What is cybersquatting?
In general, cybersquatting refers to the process of someone intentionally purchasing a domain name of a well-known company, brand, trademark, or otherwise, with no intent to use the domain other than to profit from the owner of that company, brand, or trademark when such owner makes the transition to the web. Essentially, they are “squatting” on property that arguably belongs to the trademark owner, especially if that trademark is famous. Typically cybersquatters can profit from a famous mark due to traffic generated by pay-per-click ads when people mistakenly assume the domain for (famousmark.com) exists.
- How can your firm help me protect my intellectual property from online piracy?
The short answer is that we can advise you as to your legal remedies and help you decide whether or not a legal action based on the alleged infringement will be in your best interest. The longer answer is that online piracy is very difficult to prevent, especially in an age of torrent sites and software that allows seamless peer to peer file sharing. More, if you are a musician or artist, a lot of the times an action could target a legitimate fan of your music (think: Metallica and the Napster disputes). Our goal in consultation will be to help you minimize the opportunity for online piracy of your intellectual property while also offering you practical advice as to how to best enforce your infringement actions.
- What is a trademark?
A trademark is a word, name, symbol, device, or any combination thereof used in interstate commerce to distinguish one’s goods and services from those of others. A trademark’s primary function is to identify the source of the goods. An example of a trademark is “Apple” for computers. Even though you may not know that Apple’s headquarters is based in California, you know by the glow of the lit-up, half-eaten fruit on the back of a MacBook that the product came from Apple.
- What is the difference between a trademark and a copyright?
A trademark protects the good will of the source using it to distinguish its goods or services from those of its competitors. A copyright protects the person who created the work by copyrighting the work itself; in short summation, the copyright holder has rights that others will not copy the work itself. So, for example, if Universal Records signs Artist A, the Universal trademark appears on Artist A’s album to inform consumers that they are the source of the album. Similarly, assuming Artist A has not signed his copyright over to Universal, Artist A probably holds a copyright to any music that he truly created himself (without assistance of Universal Records), regardless of the fact that the Universal trademark appears on Artist A’s new album. Trademarks and copyrights can and do exist beside one another all the time. The distinction in the above example is the source/brand of the works being protected from others using that source/brand to confuse consumers into buying different works (trademarks) versus the protection on the works and artistic creations themselves (copyrights).
- How are trademark rights obtained?
The first to use the mark to distinguish their goods or services from those of others in interstate commerce has rights to exclude others from using that mark. However, registration through the United States Patent and Trademark Office will afford your mark additional protection as it relates to any potential litigation over the use of that mark.
- What are the benefits of registering a trademark?
- Federal registration with the United States Patent and Trademark Office (the “USPTO”) provides several important benefits:
- Public notice of your claim of ownership of the mark;
- A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration;
- The ability to bring an action concerning the mark in federal court;
- The use of U.S. registration as a basis to obtain registration in foreign countries;
- The ability to record the registration with the U.S. Customs and Border Protection service to prevent importation of infringing foreign goods;
- The right to use the federal registration symbol “®”; and,
- Listing in the USPTO’s online database.
- What is the strongest form of trademark?
Trademarks vary in strength depending on whether they are (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or, (5) fanciful. Trademark strength goes on a sliding scale from generic marks being the weakest to arbitrary and fanciful marks being the strongest. Below is a general explanation of how trademark strength is determined:
Generic – A word or symbol sometimes used to describe the entire type (the “genus”) of a good or service, rather than to distinguish one product or service (the “species”). A term can be generic in one market but fanciful in another. Generic trademarks receive no protection. Sometimes, it is prudent for the trademark owner to make sure that a fanciful mark is not being referred to in an improper way, as when trademarks reach their pinnacle of strength it is possible to lose that protection (i.e., “thermos” was once the brand, and not just the type of container, but through popular use the thermos trademark was lost and became generic).
Descriptive – A word or symbol describing the characteristics of the product or service to which it is attached. Protection of descriptive marks generally depends on whether or not the descriptive mark has acquired secondary meaning in the eyes of the consumer; however, if the mark is what is called “merely descriptive”, it will be difficult to protect the trademark. An example of a descriptive trademark that may classify for descriptive mark protection is “Beer Nuts”. The trademark describes what they are, but the brand itself probably conjures the particular source and has acquired secondary meaning in the eyes of the consumer.
Suggestive – A word or symbol that requires the consumer to use some thought or imagination to perceive the nature of the product or service. The difference between a suggestive mark and a descriptive mark is that the suggestive mark requires thought and perception to reach a conclusion as to the nature of the service. Descriptive marks, in contrast, convey an immediate idea of the quality or characteristics of goods. Examples of suggestive marks would include “Roach Motel” for a Roach Trap, or “Stronghold” for nails.
Arbitrary – A well-known word or symbol used to identify goods or services to which they have no relation. For example, “Apple” Computers.
Fanciful – An invented word or symbol that is applied to goods or services. Both arbitrary and fanciful marks are considered to be inherently distinctive and eligible for trademark protection, because their association with the marked goods or services is only the association that they have gained in the marketplace.