If you’re an artist, inventor or other creative person, knowing the difference between copyrights, trademarks and patents is crucial to preserving the rights to your creations. The internet makes it easier than ever to steal someone else’s work, take credit for it and even make money from it. Many laypeople don’t understand the difference between the three—if you’re one of them, you’re not alone. The following overview will help you determine where your work product falls.
Of course, we always recommend talking to an intellectual property attorney in Denver, CO to make sure you’re fully protected. There’s no substitute for legal expertise tailored to your specific situation.
Copyrights apply to original fixed works, whether they comprise a novel, an oil painting, source code or even street art. “Original” means that it was created by you, not copied from something else. Once you create that work in some tangible form (even electronic), you automatically hold a copyright with regards to the work, or at least all parts of the work that are in fact original. As the copyright holder, you have the exclusive right to reproduce your work and make money from it. Copyright violations occur when someone else tries to copy, license, sell, modify, and/or profit from your work without your permission.
You don’t have to register for a copyright—but it is a good idea, as it will give you the opportunity to seek up to $150,000 in damages if someone violates your rights, as well as the right to attorney’s fees. Currently, copyrights last the creator’s life plus 70 years (in the United States—some countries have longer or shorter statutes), or if a corporation creates the content, 95 years.
You should not wait to file a copyright registration until after the infringement has occurred, because most courts require registration to have been filed prior to the infringement occurring in order to obtain statutory damages.
Thomas P. Howard, LLC files copyright registrations for a flat fee of $495, plus the $65 fee charged by the Copyright Office. Expedited filings conducted for the purpose of litigation are charged a much higher Copyright Office fee, our flat rate remains the same. Thomas P. Howard, LLC also regularly prepares and negotiates copyright licenses and assignments.
Finally, Thomas P. Howard, LLC has litigated many copyright infringement lawsuits, and handles such matters on an ongoing basis. If you have a party infringing one or more works, or are being accused of infringement, please contact us to arrange for a free consultation regarding the same.
A trademarks protects a phrase or design, or a combination of both, that identifies and distinguishes you or your company as the source of the goods provided by one party from those of others. Examples of famous trademarks are “Coca-Cola” and “Xerox”. A service mark is the same as a trademark, except that it identifies and distinguishes you or your company as the source of a service rather than a source of a product.
A trademark does not need to be registered in order to be valid. A party has the ability to claim common-law trademark rights based solely on its first use in commerce of a mark. However, an unregistered mark is limited to the geographic region in which the product or service is commercially provided. A registered mark is protected nationwide. Further, a party with an unregistered mark is limited as to the types of legal claims it can file arising from another party’s unauthorized use of its mark. No such limitation exists with regards to a registered mark.
Trademark and service mark registration is recommended for businesses to best protect business assets. Registration requires a filing with the United States Patent and Trademark Office (“USPTO”). Registered trademarks and service marks are subject to renewal with the USPTO after 5, 9 and then every 10 years. Failure to renew will result in the abandonment of the mark. Trademark and service mark registrations can be renewed forever (they don’t expire like copyrights do) as long as the mark is still being used in commerce, and as long as the mark has not changed.
Your mark needs to be original, and you need to be the first person that is using it (or will be using it) in commerce. The most common reason registration applications are refused by the USPTO is for a “likelihood of confusion” between the mark of the applicant and a mark already registered or in a recently filed and pending application. The USPTO determines that a likelihood of confusion exists when both (1) the marks are similar, and (2) the goods and/or services of the parties are related such that consumers would mistakenly believe they come from the same source. If you want to trademark something (or want to object to someone else’s trademark), you need to do start by doing a detailed conflict check to determine whether the mark may conflict with any other trademark already in existence.
Thomas P. Howard, LLC files trademarks for the flat fee of $750, plus USPTO filing fees, which vary depending on whether the mark is or is not in use at the time of filing and the number of classes of use. You should use legal help when filing a trademark, as trademark registration is a complex area of the law that is easy to do incorrectly, resulting in either a rejected filing or a trademark or service mark that does not effectively protect the goods or services that you provide. The trademark attorneys at Thomas P. Howard, LLC have been evaluating and filing trademark applications for over 20 years.
Not only does Thomas P. Howard, LLC file trademarks and consult on trademark matters, it also litigates trademark infringement lawsuits on an ongoing basis. If you have a party infringing one or more works, or are being accused of infringement, please contact us to arrange for a free consultation regarding the same.
Any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the Patent Act. The word “process” primarily includes industrial or technical processes. The term “manufacture” refers to articles that are made, and includes all manufactured articles. The term “composition of matter” relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. Taken together, this include practically everything that is made and the processes for making the same.
There are three types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
The patent law specifies that the subject matter must be “useful.” The term “useful” refers to purpose, or operativeness. In other words, a machine which does not operate to perform its intended purpose would not be called useful.
Section 101 of the Patent Act defines the limits of the field of subject matter that can be patented, has been interpreted by the courts that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter. For example, some inventions for software, business methods, or medical diagnostics have been held to be ineligible for a patent.
Similarly, a patent cannot be obtained upon a mere idea or suggestion. A sufficient description to enable one to make and use the invention for which a patent is sought must be set forth in the patent application.
An invention also must be novel and non-obvious in order to be patentable. If the invention is already publicly known or described in the prior art, then it would not be new and not entitled to a patent.
Once a patent on an invention is obtained, the inventor has the right to “exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. A patent is not necessary for one to commercialize an invention, but may be necessary in order to claim exclusive rights to make, use, or sell products embodying the invention. A patent also is necessary for one to market an invention as “patented.”
One common type of patent application which covers most inventions is called the utility patent application (also referred to as a non-provisional patent application). The claimed invention of a utility application is examined by a patent examiner, and at the conclusion of the examination process, the utility application may issue as a US patent. Only then can the patent owner enforce her patent rights by asserting her patent. The term for a utility patent is currently 20 years from the date of first filing. After the term of the patent expires, anyone can use the claimed invention for free as part of the public domain.
Another type of patent is the design patent. Unlike a utility patent which protects how an invention works or functions, a design patent only protects the ornamental appearance of a product. That is, how it looks. The housing of Apple’s iPhone, the sole of Nike’s shoes, the graphic of Microsoft’s recycle bin GUI icon, and many other products are the subject of design patents. The term of a design patent is currently 15 years from the date which it is granted.
Patents are strategic business tools for protecting the proprietary technology behind your competitive advantage. Inventors can and often do spend a lot of money in legal fees determining what their patent strategy should be, whether and what type of application they should pursue, whether an invention is patentable, and so on. Businesses also spend large sums of money to enforce their patents in civil law suits or to defend against the alleged infringement of them if they are sued. For these reasons, if you have an invention that you intend to protect and profit from, or if you are introducing products into the stream of commerce, it is recommended that you confer with a patent attorney to determine what is the best patent strategy for you and whether your strategy is in line with your business’s financial goals.
Thomas P. Howard, LLC employs highly experienced patent attorneys who are former USPTO patent examiners themselves. They assist client in filing and prosecuting patent applications, perform patent evaluations, provide patent opinions, and consult on patent matters. The firm also regularly represents plaintiffs and defendants in patent litigation.
To consult on any of these intellectual property issues or to determine whether you should file for copyrights, trademarks or patents in order to better protect your company’s intellectual property, speak to an intellectual property attorney in Denver, CO at Thomas P. Howard LLC today.