Home / Intellectual Property
What is a Trademark?
A trademark is a word, phrase, symbol, design or combination of these elements, that identifies and distinguishes the source of the goods of one party from those of any other parties.
A service mark is the same as a trademark except that it identifies and distinguishes the source of the service rather than a product.
How do I establish a right in a particular trademark or service mark?
You can establish rights in a mark based on the legitimate use of the mark on products or services.
How do I protect my mark and prevent others from using it without my permission?
While it is not necessary to register your trademark, owning a federally registered trademark provides several advantages including:
Provide notice to the public that as to a claim of ownership to the mark;
Provide a legal presumption as to the trademark holders sole and exclusive entitlement to use;
Provide the ability to register the mark with US Customs to prevent counterfeit and unauthorized infringing goods from being imported; and
Provide the legal ability to bring an action to protect the trademark ownership and exclusive right to the mark in federal court
This information is intended to provide you with general information concerning trademarks and is not intended as legal advice. If you are interested in having us assist you in any trademark matter, please contact us at legal@californiacoastlegal.com.
What is a Copyright?
A Copyright is a form of intellectual property that gives the author of an original work an exclusive right for a set period of time as established under 17 U.S.C. 302 to that work, including publication, distribution and adaptation of the work.
US copyright law protects "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.
The purpose of copyright law is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to that work, including making all decisions as to the publication, distribution and adaptation of that work.
A copyright exists for a limited time as set forth in 17 U.S.C. 302. With the passage of the Sonny Bono Copyright Term Extension Act, works created in or after 1978 are granted copyright protection for a term ending 70 years after the death of the author. If the work was a work for hire (created for the benefit of someone else, e.g. an employee for an employer) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter.
How do I establish Copyright?
Under US law a copyright automatically attaches upon the creation of an original work of authorship. It is not necessary to register a work with the US Copyright Office to protect it, however registration puts a copyright holder in a better position if litigation arises over the copyright. Registration is also necessary for the Copyright holder to obtain statutory damages for copyright infringement.
What does a copyright grant and what do I need to do to protect my copyrighted work?
Copyright law in the US is part of federal law, and is authorized under the US Constitution.
The holder of a copyright bears the burden of enforcing his rights against infringement. Infringement is defined in 17 U.S.C. 501. Infringement requires (1) a protected work; (2) that the defendant copied the protected work; and (3) that the defendant's copying of the protected work was unauthorized and infringing.
A Copyright holder whose rights have been infringed is entitled to seek relief. In the US a copyright holder must file a lawsuit in federal court to pursue such relief. Generally relief will fall into two general categories: damages or injunctive relief. Section 504 of the 1976 Act gives the copyright owner/author a choice of recovering: (1) their actual damages and any additional profits of the defendant; or (2) statutory damages. Copyright Act 502 authorizes courts to grant both preliminary and permanent injunctions against copyright infringement. The Act also includes provisions for impounding allegedly infringing copies, and other materials used to infringe, and for their ultimate destruction upon a final judgment of infringement. Injunctions and damages are not mutually exclusive.
In addition to the civil remedies, the Copyright Act provides for criminal prosecution in some cases of willful copyright infringement. This information is intended to provide you with general information concerning copyrights and is not intended as legal advice. If you are interested in having us assist you in any copyright matter, please contact us at legal@californiacoastlegal.com.
What is a Patent?
A patent is a set of exclusive rights granted to an inventor for a limited period of time for the invention or discovery of a new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.
In the US, there are two types of patents, (1) a utility patent, which protects the way an article is used and works (35 U.S.C. 101), and (2) a design patent which protects the way an article looks (35 U.S.C. 171).
How do I establish my Patent right in a particular invention?
You can establish rights based on the filing of an application for patent with the United States Patent and Trademark Office (USPTO). The filing of a patent application establishes a "date certain" as to your invention. There are two (2) types of applications which can be filed (1) a provisional application and (2) a non provisional application.
The provisional patent application provides temporary protection in that it establishes the filing date but does not start a review of the application for patentability by the USPTO. The provisional patent provides the inventor with a "grace period" of one (1) year from the filing date in which to market and/or develop an invention (while using the term "patent pending") before it is necessary to invest in a non-provisional patent. The provisional application provides the inventor with a less costly way to explore the potential of the invention while protecting the proprietary right of the inventor. It is important to note that while a provisional application does provide protection in the form of guaranteeing the filing date, to obtain the full effect of a registered US patent, it is necessary to file a non provisional application prior to the automatic expiration of the provisional patent one year from the date of the provisional filing.
A non provisional application is what is traditionally thought of as the patent. A non provisional application can be either a utility or design type, and it establishes the filing date as well as begins the USPTO'S patent review process. Where a provisional application was filed, a non provisional application may be able to claim a priority date to the earlier filed provisional application giving the inventor the earlier filing date.
What does a patent do and how can it protect my invention?
A patent provides a limited monopoly to the holder, which confers certain rights to prevent others from making or practicing what is covered in the patent. The burden of enforcing patent rights falls upon the patent holder. To determine whether a potential infringement has occurred it is necessary to determine whether a party or person without authorization has made, used, sold or offered for sell, or imported an infringing invention or its equivalent. Patents are territorial, which means infringement can only occur in a territory in which the patent is in force. For instance, a US Patent holder may only enforce his rights against an infringer in the US. A US patent holder may extend his protection to additional territories by the filing of additional applications in those territories. The scope of protection may vary from territory to territory, because the patent application will be examined by the each territory's patent office.
The scope of the patented invention or the extent of protection afforded to a patent holder is defined by the claims of the granted patent. In other words, the claims inform the public of what is not allowed without the permission of the patent holder.
In the US, no infringement action may be started until the patent is issued. However, pre-grant protection is available under 35 U.S.C.154(d), which allows a patent owner to obtain reasonable royalty damages for certain infringing activities that occurred before patent's date of issuance. As a result, it is advisable to register your patent with the USPTO as well as any other territories in which you would like protection as early as possible.
This information is intended to provide you with general information concerning patents and is not intended as legal advice. If you are interested in having us assist you in any patent matter, please contact us at legal@californiacoastlegal.com.
