CorpNet’s Intellectual Property Guide
An Informative Guide and FAQ’s to Trademarks, Patents, and Copyrights
Trademarks
What are trademarks? When and why are they used, and what role do trademarks play in brand-recognition?
A trademark is a word, phrase, name, or symbol that that identifies the source of a product or service and distinguishes it from competitors. A trademark can apply to a company name, a product name, logo, or tagline – all of which are the cornerstone of a company identity. Trademarks help prevent brand confusion in the marketplace, allowing a customer to differentiate between companies and products.
When is a trademark established?
Trademarks don’t actually have to be registered with the USPTO (US Patent and Trademark Office). If your company creates a logo or name that you want to use exclusively, you can attach the TM symbol and this essentially gives you “common law” rights. But keep in mind that in order to claim first use to a name, the name has to be “trademarkable” (i.e. not already in use by someone else) and needs to be in use in commerce. For example, if you think of a cool company name, that company will need to actively marketing and selling a product or service for your common law trademark to be valid.
Is the TM sign required to appear with trademarked intellectual property?
Before you have registered a trademark with the USPTO, you may use the TM symbol. After a trademark is registered with the USPTO, you have the right to use ® in your trademark. Many companies choose to use the TM or ® symbol with the first appearance of the company or product name in a document, and then drop the symbol for each appearance after that.
How are trademarks registered, and what are the benefits of registering? How much does it cost?
To register your business name, you’ll need to file an application with the USPTO - you can file either directly with the USPTO or have an online legal filing service handle it for you. Expect to pay approximately $400 per class in application fees that your mark would fall under and the process can take anywhere from 6-12 months once you submit your application. It’s also smart to perform a comprehensive trademark search before starting the application process to make sure your name is available (you won’t get an application refund just because your name isn’t available).
By registering for U.S. Federal Trademark protection, you’ll be eligible for several benefits, including:
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Treble damages in some cases of infringement
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The right to use ® in your trademark
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A streamlined process for securing your domains and usernames at social sites like Facebook, Twitter, and YouTube
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Significantly stronger protection than ‘common law’ (aka. unregistered) marks. This can make it much easier to recover your property, let’s say if someone happens to use your company name as their Twitter handle.
Copyrights
What are copyrights? What elements of works are copyrightable, and which elements are not?
A copyright protects ‘original works of authorships’ and can include literary, dramatic, musical, artistic, and other intellectual works. Seek copyright protection for website copy or a marketing video. Even computer code can be registered as a literary work.
Copyrights don’t protect facts, ideas, or systems (although you could copyright the way in which ideas are communicated). Copyrights also don’t protect names, titles, or slogans (these need to be protected as trademarks). In addition, you can’t copyright any work that consists entirely of common property with no original authorship (for example, a plain calendar).
When is copyright established?
By law, a copyright exists the moment something is written, photographed, drawn, etc. As soon as you write and publish the copy on your website, you automatically own a copyright for this work and are able to use the copyright symbol © and use the terminology “All Rights Reserved.”
How long does a copyright last? Can the term be extended?
As a general rule of thumb, copyright protection lasts for the life of the author plus an additional 70 years. For anonymous work, pseudonymous work, or a work made for hire, copyright protection lasts for 95 years from the year of first publication or 120 years from the year of creation (whichever expires first). Note that those terms apply for works created after January 1, 1978.
You cannot renew the registration or extend the terms for works created on or after January 1, 1978, are not subject to renewal registration.
What exclusive rights does a copyright grant its owner?
The owners of the copyright generally has exclusive rights to:
- Reproduce the work in copies
- Prepare derivative works based upon the work
- Distribute copies of the work to the public for sale
- Perform the work publicly
How do I register my copyright?
Registering a copyright is relatively straightforward and affordable. So if you consider your web copy, or other material, valuable to your business, it makes sense to register the copyright. You can register online through the U.S. Copyright Office or have a legal online filing service handle it for you.
What are the benefits of registering?
If copyright protection exists without registration, you might be wondering why you should bother registering in the first place. Formal registration is a prerequisite if you decide to sue someone for copyright infringement. That’s because copyright registration gives you a public record of ownership.
If it’s important to you to have the ability to take legal action in case someone copies part of your website or whitepaper without your permission, then it makes sense to register a copyright.
Patents
What are patents?
A patent gives an inventor the exclusive rights to manufacture, use, or sell an invention for a certain number of years. Patents cover tangible things, and can include software processes, product design, and other inventions. For example, Twitter has a patent on the "pull-to-refresh" function found in Twitter's iPhone app; Coca-Cola patented the unique shape of its original bottle.
How is a patent established?
You need to apply for a patent through the U.S. Patent and Trademark Office (USPTO). The patent application is a rather complex legal document; don’t expect to fill it out in one evening! The better written the patent application, the better it will protect your invention.
Patent applications typically include:
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A written document that contains the invention description and claims
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Drawings of your invention when applicable
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A filing fee
What does the registration process involve? Why does it take so long for a patent to be approved?
Acquiring a patent can take up to six years and hundreds of hours of work. Due to the complexity of the process, you really need to have a lawyer or agent experienced in the patent process to help you through it all. Expect to pay between $7K-15K in attorney fees.
What does it mean to have a patent pending?
Patent pending means that a patent application has been filed and is in the approval process. Once you submit your patent paperwork to the U.S. Patent and Trademark Office, you’ve secured your priority date. If another company starts doing what your patent is about after this date, they’re infringing on your patent.
What elements of a design are patentable? Conversely, which elements are not patentable? Along these lines, why might a patent be rejected?
Before applying for a patent, you should ask yourself the following questions: is your product or idea original? Is it useful? And is it not obvious to others with basic skills in your field? For example, Amazon.com’s patent for its one-click ordering system was rejected by the European Patent Office (EPO) for being too obvious and non-inventive.
General
How are U.S. trademarks, copyrights, and patents protected internationally?
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Copyrights:
The U.S. Copyright Office has copyright relations with some foreign countries, so international protection of your copyright is possible, but only in certain countries. There are other countries that offer no copyright protection to foreign works. You can find out which countries protect what in the U.S. Copyright Office’s publication: “International Copyright Relations of the United States” (circular 38A)
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Trademarks:
To protect a trademark internationally, you need to register with the World Intellectual Property Organization (WIPO). However, before you can do that, your trademark needs to be filed with your country’s trademark office. So, registering a trademark with the USPTO is your first step to protecting a trademark internationally.
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Patents:
Getting a patent in the U.S. does not guarantee international protection of your invention; USPTO patents are only effective in the U.S. A separate patent needs to be filed in each country where you want protection. WIPO does offer a Patent Cooperation Treaty application that basically lets one application to be filed in multiple countries.
How have ecommerce and online communication shaped the way these regulations are determined, monitored, or enforced?
The Internet has been described as “the world’s biggest copy machine.” On the Internet, people can make unlimited copies and distribute them around the world, all in a matter of minutes. This has obviously disrupted several industries, particularly the arts & entertainment industry (for example, file-swapping services like Napster mean people are copying music without the authorization of the rightsholder). This means that the legal system needs to continually adjust, and new technologies and markets are evolving rapidly and will continue to do so.
Review: Everything You Ever Wanted to Know About Intellectual Property
I’m big on taking measures to protect your company. There are lots of ways to do that, and if you’re talking about intellectual property -- think: your brand name, logo, slogan, even social media username -- there are several options that will keep your brand safe.
Option 1: Trademarks
A trademark is a word, phrase, name, or symbol that identifies the source of a product or service and makes it unique from the competition. You can trademark a company name, product name, logo, or tagline to ensure that no one else will use them.
You don’t actually have to register your trademark with the USPTO (US Patent and Trademark Office), though it’s a good idea. Simply by putting the ™ symbol behind whatever you want trademarked gives you “common law” rights and keeps others from being able to use it.
Filing an official trademark with the USPTO will give you an additional layer of legal protection and will make it easier for you to seek legal action, should anyone try to use your trademarked material. After a trademark is registered with the USPTO, you have the right to use ® in your trademark.
To trademark your business name, file an application with the USPTO -- you can file either directly with the USPTO or have an online legal filing service handle it for you. You’ll pay approximately $400 per class in application fees that your mark would fall under, plus the fees for assistance if you don’t file it yourself. The process can take about 6-12 months once you submit your application.
Trademark Tip:
Before starting your trademark application, perform a comprehensive name search to make sure your name is available.
Option 2: Copyrights
A copyright protects ‘original works of authorships,’ and can include literary, dramatic, musical, artistic, and other intellectual works. For your business, that would include website copy, a graphic you designed, or a video. Even computer code can be copyrighted.
Did you know that as soon as you write and publish the copy on your website, computer code, etc., you automatically own a copyright for this work? You can even use the copyright symbol © and use the terminology “All Rights Reserved.”
Again, officially registering your copyright provides an extra layer of protection. You can register online through the U.S. Copyright Office or have a legal online filing service help you.
Once you copyright your intellectual property, no one can reproduce or distribute your work, nor make money from it. Copyright protection lasts for the life of the author plus an additional 70 years.
Copyright Tip:
If it’s important that you copyright your material in multiple countries, that is possible, but only in specific countries. Some countries offer no copyright protection to foreign works. You can find out which countries protect what in the U.S. Copyright Office’s publication: “
International Copyright Relations of the United States.”
Option 3: Patents
A patent gives an inventor exclusive rights to manufacture, use, or sell an invention for a set number of years. You can patent tangible things as well as software processes, product design, and other inventions.
Unlike the other two options, you’re not automatically patented as soon as you dream up an amazing idea. You have to apply for a patent through the USPTO, and the patent application is a rather complex legal document! Many patent applicants turn to a lawyer or patent filing service to assist, since it’s so detailed a process.
Acquiring a patent can take up to six years, and doesn’t come cheap. If you work with a lawyer, you can pay $7K-15K in attorney fees.
Even before your patent application is approved, you can qualify as “patent pending.” Once you submit your patent paperwork to the U.S. Patent and Trademark Office, you’ve secured your priority date. Even though the paperwork isn’t processed, no other company can use your idea or file a similar patent.
Patent Tip:
If you’re interested in seeking funding from investors, holding a patent (or having a patent pending) may make you more appealing.
Top 10 Trademark FAQ's
For a startup, intellectual property is often the most valuable asset. Yet, IP isn’t just about patents and inventions. It can also include your brand assets – everything from the company name to the logo and product tagline.
Trademarks help keep your brand ID safe, with the idea that no one else in the market can come in and use your brand or trademark for a similar thing. But how much do you understand about the trademark process? Here are the answers to 10 of the most frequently asked questions surrounding trademarks:
1. If I trademark my company/product name, does that mean nobody else can use it?
The main purpose of a trademark is to prevent confusion in the marketplace, ensuring that consumers will know who is behind a certain product or service. That’s why trademark protection only applies to a particular category of goods and services. Nike Inc. owns the mark on a variety of shoes, clothing, sporting goods, etc. But there’s also a Nike Corporation that’s involved in hydraulic lifting jacks and other heavy machinery. There’s really no risk of a consumer confusing those two companies.
2. What’s the difference between a trademark and registering with the state?
When you incorporate, form an LLC, or submit a DBA (Doing Business As) for your business, you are essentially registering your business name with the state. This prevents anyone else from registering a similar name for a similar business type in your state. The key difference is that this act does not offer any kind of protection in the 49 other states; that’s where federal trademark protection comes in.
3. When is the right time to trademark our company name?
You should lock up trademark rights for your company or product name as soon as possible by submitting an intent-to-use trademark application. This ensures that your brand is protected once you begin commercial sales. In addition, a comprehensive trademark search usually accompanies the registration filing. This search will ensure that your mark is available and you aren’t accidentally infringing on someone else’s mark. You definitely don’t want to be on the wrong end of a trademark dispute.
4. How long does it take to get a trademark?
The registration process can take anywhere from nine months to several years, although most applications are completely processed within a year. The length often depends on the complexity of the mark and any conflicts or legal issues that arise while the U.S. Patent and Trademark Office examines your application. Once you file your paperwork, you are given a receipt and your filing date is marked. In terms of future trademark disputes, the earlier your filing date, the better.
5. What class should I choose?
When you apply for a trademark, you need to specify the particular goods or services that you are using your trademark with. There are 45 different classes to choose from. Software traditionally falls under Class 9 “Electrical and Scientific Apparatus.” The USPTO website provides a handy search feature to help you identify your class. For example, enter “beer” in the search field, and you’ll see that “beer” is class 32; Non-metal taps for beer kegs are class 20; and beer pumps are 7. If your mark is used on different products, you may need to file trademarks in multiple classes.
6. How long is a trademark good for? How long does a trademark last?
Trademarks today have a 10-year term. Once that term is up, you can renew a registration for another 10 years, and there’s no limit to how many times you renew the trademark. As long as you keep filing your renewals, along with your Declaration of Use forms, you can have a trademark as long as you’d like.
7. Should I register my company’s name or logo?
You can’t register your company name and logo in the same application, so many businesses will submit multiple filings – one for the company name, company logo, product name, product logo, etc. However, the reality is that many small businesses and bootstrapped startups are working with a limited budget and prefer to just register a single trademark.
If you can only do one trademark registration, you are probably best off registering your business name with a “standard character claim.” This means that your trademark broadly covers your name regardless of what font or stylistic elements are used (for example, no one could use your company name with a different font or lower case instead of upper case letters). But keep in mind this doesn’t offer protection for the design elements of your logo.
8. Can I trademark my name?
Yes, particularly people whose names are also their professions like actors or designers. If your name also identifies your business, you should consider trademarking your name.
Generally speaking, a personal name can be trademarked if it’s considered “distinctive”. The more common a name, the less likely your trademark application will be approved. But even an unusual name is no guarantee that you’ll be awarded a trademark; just ask Jay-Z and Beyonce who have been struggling to trademark their baby daughter Blue Ivy’s name.
9. Can a trademark help me get a domain name?
Yes. Under the Anti-Cybersquatting Consumer Protection law, a trademark owner can sue for damages and recover a domain name when someone is squatting on a domain name that’s identical or similar to their trademark. For example, Morgan Freeman trademarked his name so he could take back the domain name www.morganfreeman.com. To do this, you need to prove that the person has been using the domain name in bad faith (i.e. to make a profit off of your brand).
10. What happens if someone else uses my trademark?
If another company is in a different type of business than you, you may not have legal grounds to stop them from using your mark. As the owner of a trademark, you can stop someone else from using your mark when it’s being used on competing goods or services, and when consumers would be confused by their use of the trademark.
If you believe someone is infringing on your mark, an attorney will first send a cease and desist letter on your behalf, demanding the other user to stop using your mark. If that’s unsuccessful, you can file a lawsuit (most likely in federal court) to stop the use. In many cases, you can also sue for money damages from the user. In fact, legal recourse is the biggest advantage of registering your trademark.
Top 10 Copyright FAQ's
I recently wrote about trademarks here on Secret Entourage, and now I want to address the questions you might have about copyrights.
Question 1: What IS a copyright?
A copyright is a tool designed to protect what are called “original works of authorships.” That can refer to anything from web copy to a song to computer code. Essentially, if it’s a creative work, it can be copyrighted.
What that means is that the original creator of this work has exclusive rights to reproduce or distribute that work, and that others cannot use it in any way without permission.
Question 2: What can be copyrighted?
Beyond what I’ve already mentioned, you can also copyright:
- Marketing material
- Literary works
- Photos and custom graphics
- Dramatic works
- Audio recordings
- Architectural designs
Question 3: How do I copyright my work?
As soon as you create your content, it is, by law, copyrighted. You can even use the copyright symbol © and the terminology “All Rights Reserved.” You’re protected from this moment on.
Question 4: Why should I register a copyright?
While you automatically own the copyright to your creative works, formal copyright registration can also provide benefits. Should you have to sue someone for copyright infringement, you will have a public record of ownership that will make it easier for you to take legal action.
Question 5: How do I register my copyright?
Fill out a copyright application with the U.S. Copyright Office, or hire a legal online filing service to assist you. The filing fee is $35-55, depending on your needs.
Question 6: How long does the approval process take?
If you use the U.S. Copyright Office’s online system to e-file your application, it will take up to eight months. If you go the old fashioned route and submit paper forms, it will take up to 13 months. You can check the status of your application on the site.
Question 7: How long does a copyright last?
Any original works that were created after 1977 will have a copyright for the life of the creator, plus 70 years after his death. For “works made for hire,” such as a logo your employee made for your company, the company owns that copyright for 95 to 120 years from publication.
Question 8: What, if any, copyright limitations should I be aware of?
You should be aware of something called Fair Use as a limitation to copyright. Others may be able to use your work, depending on the work’s purpose and character of the use (is it for commercial use? nonprofit educational use?), how much of the work is being used, and the effect of using it upon the value of the copyrighted work. In other words: if it doesn’t hurt you for a school to use your logo in an educational PowerPoint, you don’t need to pursue legal action.
There’s also what’s called First Sale, where anyone can resell a product that uses your copyrighted material without your permission. And Public Domain works, like Creative Commons stock photos, can be used by anyone for commercial or noncommercial purposes.
Question 9: Is anything not protected by copyright?
If you’ve got a great idea rolling around in your head, it’s not copyrighted. But even jotting down notes on a napkin is copyrighted, so start writing! Likewise, any idea you’ve discussed or work you haven’t recorded (audio, video, or written) isn’t copyrightable.
You can’t copyright short phrases or slogans, nor familiar symbols (like the @ symbol, for example). You can’t copyright a fact, nor a process or system (though you can patent those).
Question 10: If my company applies for the copyright, who owns it?
If you, yourself, apply for a copyright for a song you wrote, you as the artist own that copyright. But if your company asks your graphic designer employee to create a custom image, it’s the company that owns it.
If you create a work with someone else, you both own it. If the original author dies, his heirs own the copyright.
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