As we discussed earlier, a trademark is a form of “intellectual property” that identifies the source of origin of a product or service. These trademarks can take the form of any of the following:
Names
Words
Phrases
Logos
Symbols
Colors
Scents
Designs
Images
Simply using any of these items or combination thereof to distinguish one’s product or services can afford the owner trademark protection under what is known as “Common Law Trademark Protection.” However, it is advisable to register a trademark in order to be afforded the highest level of protection and to ensure the owner the ability to recover damages if trademark infringement occurs.
Federal trademark registration is handled through the U. S. Patent and Trademark Office (PTO). States also have a process for trademark registration. For example, in Rhode Island trademark registration is handled through the RI Secretary of State’s Office. In order for a trademark to be registered it must be:
1- Trademark, Service Mark, Collective Mark or Certification Mark (more on these distinctions later)
2- A devise or method adopted or used to distinguish the goods or services from those of others
3- Distinctive, arbitrary or fanciful
4- Not confusingly similar to marks previously or currently in use or registered
Trademark registration can be a lengthy and detailed process and it is advisable to obtain the services of an attorney who specializes in this area of practice. Before a trademark can be registered, a search must be performed to establish whether the criteria listed above are met. In addition, there is a period whereby competitors or other entities may contest this registration.
So before you add that new logo to your stationary or launch that new packaging for your product, be sure that this new trademark can be registered and that it will not come back to haunt you.
Disclaimer
This article is intended for informational purposes only. It should not be construed as legal advice and readers are encouraged to consult a qualified attorney regarding these matters.
(c) Copyright - 2010
Monday, June 14, 2010
The Basics of Trademarks: What is a Trademark?
Trademarks and the concept of trademark protection have been in existence for literally thousands of years dating back to the days of the Roman Empire when blacksmiths would emblazon swords that they had crafted with a distinctive symbol. The trademark was affixed to the finished product to identify the originating craftsman or shop.
Trademarks have come a long way since that time and can now consist of nearly any type of identifying feature that signifies or identifies the person or company that created, sells or markets a particular product or service. Trademarks can consist of any single or combination of identifying features including but not limited to the following:
Names
Words
Phrases
Logos
Symbols
Colors
Scents
Designs
Images
A trademark not only serves to identify the producer or seller of a particular product or service but also serves to differentiate the item from similar products produced by a competitor. Trademarks can be owned by individuals, businesses or any other legal entity and are considered to be Intellectual Property. They also may be sold, leased or licensed to outside parties but also must be “active” to be considered protectable.
Trademark protection applies to both registered and unregistered symbols, logos, designs, etc. For instance, if a company has sold a product under a distinctive brand name for a period of time without registering that name with either a national or state trademark office may still be afforded trademark protection for that name and may seek and be awarded damages for any infringement.
Next we will talk about the process for registering trademarks.
Disclaimer
This article is intended for informational purposes only. It should not be construed as legal advice and readers are encouraged to consult a qualified attorney regarding these matters.
(c) Copyright - 2010
Trademarks have come a long way since that time and can now consist of nearly any type of identifying feature that signifies or identifies the person or company that created, sells or markets a particular product or service. Trademarks can consist of any single or combination of identifying features including but not limited to the following:
Names
Words
Phrases
Logos
Symbols
Colors
Scents
Designs
Images
A trademark not only serves to identify the producer or seller of a particular product or service but also serves to differentiate the item from similar products produced by a competitor. Trademarks can be owned by individuals, businesses or any other legal entity and are considered to be Intellectual Property. They also may be sold, leased or licensed to outside parties but also must be “active” to be considered protectable.
Trademark protection applies to both registered and unregistered symbols, logos, designs, etc. For instance, if a company has sold a product under a distinctive brand name for a period of time without registering that name with either a national or state trademark office may still be afforded trademark protection for that name and may seek and be awarded damages for any infringement.
Next we will talk about the process for registering trademarks.
Disclaimer
This article is intended for informational purposes only. It should not be construed as legal advice and readers are encouraged to consult a qualified attorney regarding these matters.
(c) Copyright - 2010
Tuesday, June 8, 2010
The Uniform Trade Secret Act: What is a Trade Secret?
The Uniform Trade Secret Act, which has been adopted by 46 states is designed to protect the owners of valuable business information. The definition of trade secret is so broad it might almost be limited only by human ingenuity and creativity. Among the many types of items which can be defined as trade secrets are the following:
Manufacturing processes
Formulas
Programs
Devices
Techniques
Information
In order for something to be considered a trade secret it must have independent economic value (either actual or potential) and that value is contingent on it not being readily known by others. The trade secret must be also subject to reasonable efforts by the holder of that information to protect its secrecy from others.
In addition to the above technical types of trade secrets are any non-technical data that may also provide the holder with an economic advantage. Sales data, marketing reports and studies, cost reports, bid information and internal pricing data have also been held to be considered trade secrets.
Also, certain compilations of data, which might exist separately in the public domain such as customer lists can be deemed to be trade secret protected providing that certain criteria are met. Where a simple list of a company’s clients may not pass muster as a protectable trade secret, one which contains detailed contact information, sales histories and pricing information may meet this standard.
Negative information may also be deemed a trade secret if it provides economic benefit to the holder. If a manufacturing company possesses data that a particular process or material will either fail or be cost prohibitive, withholding that data from competitors will certainly benefit the holder even if it is to the detriment of the competitor.
No process, formula, program or other similar item can be considered a trade secret if it exists in the public domain or can be ascertained with very little effort or expense. So before you post that new idea or device on the internet or in a journal, understand that trade secret status is lost the moment this occurs.
Manufacturing processes
Formulas
Programs
Devices
Techniques
Information
In order for something to be considered a trade secret it must have independent economic value (either actual or potential) and that value is contingent on it not being readily known by others. The trade secret must be also subject to reasonable efforts by the holder of that information to protect its secrecy from others.
In addition to the above technical types of trade secrets are any non-technical data that may also provide the holder with an economic advantage. Sales data, marketing reports and studies, cost reports, bid information and internal pricing data have also been held to be considered trade secrets.
Also, certain compilations of data, which might exist separately in the public domain such as customer lists can be deemed to be trade secret protected providing that certain criteria are met. Where a simple list of a company’s clients may not pass muster as a protectable trade secret, one which contains detailed contact information, sales histories and pricing information may meet this standard.
Negative information may also be deemed a trade secret if it provides economic benefit to the holder. If a manufacturing company possesses data that a particular process or material will either fail or be cost prohibitive, withholding that data from competitors will certainly benefit the holder even if it is to the detriment of the competitor.
No process, formula, program or other similar item can be considered a trade secret if it exists in the public domain or can be ascertained with very little effort or expense. So before you post that new idea or device on the internet or in a journal, understand that trade secret status is lost the moment this occurs.
Tuesday, May 25, 2010
The Basics of Copyrights: Exceptions to the Rules
As we have discussed earlier, “original” and “creative” works of various types are afforded copyright protection under the Federal Copyright Act of 1976. These works can include but are not limited to the following:
Literature
Poetry
Music
Choreography
Photography
Motion Pictures
Graphic Arts/Sculpture
Dramatic Works
Architectural Works
These copyright protections commence from the moment the work is created and “fixed in any tangible medium.” This means that a work does not need to be published to be protected, merely saved in any form or format. This affords the author, artist or creator of the work to have exclusive right to publish, distribute, sell, lease or perform this copyrighted material.
However, as in most cases, where there are rules, there are also exceptions. Original works can be reproduced under what is known as the “doctrine of fair use”. This exception allows for reproduction and limited distribution for such uses as criticism, news reporting, comment, teaching, scholarship or research. For example, a high school teacher who makes copies of a copyright protected poem for his or her students to read and comment on is not in violation of copyright laws.
Another exception in copyright laws is what is known as “Work for Hire.” This exception applies when person or employer engages an individual or group to create an “original” work on their behalf while receiving compensation in any form. This affords the person compensating the creator to hold the copyright for the material for which they have engaged the creator. For example, had I hired another individual to author this article on my behalf and had compensated that person in any way, I would be the owner of this copyrighted material. When dealing with Work for Hire arrangements, I have always encouraged the employer to obtain an express written agreement signed by both parties.
About the Author
Henry V. Boezi, III has been practicing law for over 25 years and specializes in Copyright, Trademark, Patent and Intellectual Property Law. Henry holds both J.D. and M.I.P. (Masters of Intellectual Property) degrees. He also received a B.S. in Mechanical Engineering which affords him a unique background in these areas of legal practice. Henry can be reached at HVBoeziIII@aol.com or at his web site, http://www.hvbiiilaw.com
Disclaimer
This article is intended for informational purposes only. It should not be construed as legal advice and readers are encouraged to consult a qualified attorney regarding these matters.
Literature
Poetry
Music
Choreography
Photography
Motion Pictures
Graphic Arts/Sculpture
Dramatic Works
Architectural Works
These copyright protections commence from the moment the work is created and “fixed in any tangible medium.” This means that a work does not need to be published to be protected, merely saved in any form or format. This affords the author, artist or creator of the work to have exclusive right to publish, distribute, sell, lease or perform this copyrighted material.
However, as in most cases, where there are rules, there are also exceptions. Original works can be reproduced under what is known as the “doctrine of fair use”. This exception allows for reproduction and limited distribution for such uses as criticism, news reporting, comment, teaching, scholarship or research. For example, a high school teacher who makes copies of a copyright protected poem for his or her students to read and comment on is not in violation of copyright laws.
Another exception in copyright laws is what is known as “Work for Hire.” This exception applies when person or employer engages an individual or group to create an “original” work on their behalf while receiving compensation in any form. This affords the person compensating the creator to hold the copyright for the material for which they have engaged the creator. For example, had I hired another individual to author this article on my behalf and had compensated that person in any way, I would be the owner of this copyrighted material. When dealing with Work for Hire arrangements, I have always encouraged the employer to obtain an express written agreement signed by both parties.
About the Author
Henry V. Boezi, III has been practicing law for over 25 years and specializes in Copyright, Trademark, Patent and Intellectual Property Law. Henry holds both J.D. and M.I.P. (Masters of Intellectual Property) degrees. He also received a B.S. in Mechanical Engineering which affords him a unique background in these areas of legal practice. Henry can be reached at HVBoeziIII@aol.com or at his web site, http://www.hvbiiilaw.com
Disclaimer
This article is intended for informational purposes only. It should not be construed as legal advice and readers are encouraged to consult a qualified attorney regarding these matters.
The Basics of Copyright Law: Registration and Duration
Although many types of “creative” and “original” Works are deemed to have copyright protection from the moment that the Work is created and “fixed in any tangible place”, in order for the owner of the copyright to receive greater rights and increase his or her ability to protect those rights the Work should be registered.
The United States Copyright Office is a division of the United States Department of Commerce. Registering with this office will greatly enhance the copyright owner’s ability to seek various types of damages if the copyright has been infringed upon by an outside party. One should seek legal advice before applying for registering a copyrighted Work, as it should be determined whether the Work is copyrightable, i.e. the type of Work for which a registration can be obtained. Simply applying to register a copyright does not necessarily mean that the work in question is copyrightable.
The duration of copyrights varies from what type of work is in question as well as when it was created or registered. A work that was created on or after January 1, 1978 is protected from the time it is created, usually for the author’s life plus 70 years after the author’s death. For “a joint work prepared by two or more authors who did not work for hire,” the term is for 70 years after the death of last surviving author.
The copyright term for works created and published or registered before January 1, 1978 is the same as for those created on or after January 1, 1978, namely, life of the author plus 70 years. The 95/120-year terms for works for hire apply to pre January 1, 1978 to these works also. However, the term of copyright for these works cannot expire before December 31, 2002. For works published on or before December 31, 2002, the term will not expire before December 31, 2047.
A “work made for hire” is one prepared by an employee within the scope of his or
her employment or a work specially ordered or commissioned for certain types of use use such as a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation or an instructional text if the parties agree in writing instrument that the work will be considered a work made for hire.
The copyright term for works made for hire and anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records) is either 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.
As with all areas of Copyright and Intellectual Property Law, it is advisable to consult with an attorney that specializes in this area. A number of law schools offer what is known as a Masters of Intellectual Property degree and the advice of an attorney with this level of scholarship can be essential from the moment a work is created all the way through the enforcement or recovery of any infringement.
About the Author
Henry V. Boezi, III has been practicing law for over 25 years and specializes in Copyright, Trademark, Patent and Intellectual Property Law. Henry holds both J.D. and M.I.P. (Masters of Intellectual Property) degrees. He also received a B.S. in Mechanical Engineering which affords him a unique background in these areas of legal practice. Henry can be reached at HVBoeziIII@aol.com or at his web site, http://www.hvbiiilaw.com/
Disclaimer
This article is intended for informational purposes only. It should not be construed as legal advice and readers are encouraged to consult a qualified attorney regarding these matters.
The United States Copyright Office is a division of the United States Department of Commerce. Registering with this office will greatly enhance the copyright owner’s ability to seek various types of damages if the copyright has been infringed upon by an outside party. One should seek legal advice before applying for registering a copyrighted Work, as it should be determined whether the Work is copyrightable, i.e. the type of Work for which a registration can be obtained. Simply applying to register a copyright does not necessarily mean that the work in question is copyrightable.
The duration of copyrights varies from what type of work is in question as well as when it was created or registered. A work that was created on or after January 1, 1978 is protected from the time it is created, usually for the author’s life plus 70 years after the author’s death. For “a joint work prepared by two or more authors who did not work for hire,” the term is for 70 years after the death of last surviving author.
The copyright term for works created and published or registered before January 1, 1978 is the same as for those created on or after January 1, 1978, namely, life of the author plus 70 years. The 95/120-year terms for works for hire apply to pre January 1, 1978 to these works also. However, the term of copyright for these works cannot expire before December 31, 2002. For works published on or before December 31, 2002, the term will not expire before December 31, 2047.
A “work made for hire” is one prepared by an employee within the scope of his or
her employment or a work specially ordered or commissioned for certain types of use use such as a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation or an instructional text if the parties agree in writing instrument that the work will be considered a work made for hire.
The copyright term for works made for hire and anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records) is either 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.
As with all areas of Copyright and Intellectual Property Law, it is advisable to consult with an attorney that specializes in this area. A number of law schools offer what is known as a Masters of Intellectual Property degree and the advice of an attorney with this level of scholarship can be essential from the moment a work is created all the way through the enforcement or recovery of any infringement.
About the Author
Henry V. Boezi, III has been practicing law for over 25 years and specializes in Copyright, Trademark, Patent and Intellectual Property Law. Henry holds both J.D. and M.I.P. (Masters of Intellectual Property) degrees. He also received a B.S. in Mechanical Engineering which affords him a unique background in these areas of legal practice. Henry can be reached at HVBoeziIII@aol.com or at his web site, http://www.hvbiiilaw.com/
Disclaimer
This article is intended for informational purposes only. It should not be construed as legal advice and readers are encouraged to consult a qualified attorney regarding these matters.
The Basics of Copyrights: What Can Be Protected
Whether it is due to the overwhelming opportunities available for publication in this internet age or a surge in American creativity, the practice of Intellectual Property Law has never been stronger, or of more importance. So for the upstart writer, photographer, musician, etc., the first question is what can be covered by a copyright?
The easiest answer is specific works of the following which are “original”:
Literature
Poetry
Music
Choreography
Photography
Motion Pictures
Cartoons
Graphic Arts/Sculpture
Dramatic Works
Architectural Works
or any other similar “finished” product that is the creative and original work of the applying author. An example of a “finished” work would be a script for a screenplay which can be covered by copyright protection while a concept or “treatment” for one can not be covered.
Also, compilations or arrangements of non-copyrightable materials can be copyright protected if the arrangement or compilation is deemed to be both original and creative. For example various maps, forms, tables, calendars and directories are very often in and of themselves not eligible for copyright protection. However, a compilation of these types of materials that is deemed to be original and creative can be afforded copyright protection. Say a person wanted to create a visitors guide to Providence, RI. The maps, tables, restaurant names, bus schedules, etc would not be eligible for copyright protection individually. But as a creative and original compilation or “arrangement” of these materials this guide could qualify for protection under the US Copyright Act.
For specific answers to your questions regarding copyrights and intellectual property law, you are encouraged to consult a qualified attorney who specializes in this area of practice.
About the Author
Henry V. Boezi, III has been practicing law for over 25 years and specializes in Copyright, Trademark, Patent and Intellectual Property Law. Henry holds both J.D. and M.I.P. (Masters of Intellectual Property) degrees. He also received a B.S. in Mechanical Engineering which affords him a unique background in these areas of legal practice. Henry can be reached at HVBoeziIII@aol.com or at his web site, www.HVBIIIlaw.com
The easiest answer is specific works of the following which are “original”:
Literature
Poetry
Music
Choreography
Photography
Motion Pictures
Cartoons
Graphic Arts/Sculpture
Dramatic Works
Architectural Works
or any other similar “finished” product that is the creative and original work of the applying author. An example of a “finished” work would be a script for a screenplay which can be covered by copyright protection while a concept or “treatment” for one can not be covered.
Also, compilations or arrangements of non-copyrightable materials can be copyright protected if the arrangement or compilation is deemed to be both original and creative. For example various maps, forms, tables, calendars and directories are very often in and of themselves not eligible for copyright protection. However, a compilation of these types of materials that is deemed to be original and creative can be afforded copyright protection. Say a person wanted to create a visitors guide to Providence, RI. The maps, tables, restaurant names, bus schedules, etc would not be eligible for copyright protection individually. But as a creative and original compilation or “arrangement” of these materials this guide could qualify for protection under the US Copyright Act.
For specific answers to your questions regarding copyrights and intellectual property law, you are encouraged to consult a qualified attorney who specializes in this area of practice.
About the Author
Henry V. Boezi, III has been practicing law for over 25 years and specializes in Copyright, Trademark, Patent and Intellectual Property Law. Henry holds both J.D. and M.I.P. (Masters of Intellectual Property) degrees. He also received a B.S. in Mechanical Engineering which affords him a unique background in these areas of legal practice. Henry can be reached at HVBoeziIII@aol.com or at his web site, www.HVBIIIlaw.com
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