Whether you sell goods and/or services, you want to protect your business brand by preventing others from misusing it to hurt your image. In many cases, a trademark lawyer can help you get maximum legal protection for your brand.
What Is A Trademark?
Your trade mark is your brand name for one or more goods that you sell. You can express this brand in multiple ways, including a name, symbol, words, device, or a combination of these with the purpose of identifying your good(s) separately from competitors.
If you have not registered your trademark with the U.S. Patent & Trademark Office (USPTO), you may assert your unregistered mark as your brand by adding a superscripted “TM” to it.
However, to reduce the risk of getting into legal hot water, it’s a good idea to have trademark attorney review your unregistered mark and have a search performed to see if there are competing claims to the mark or one similar to it.
What Is A Service Mark?
Just as a trademark is a brand for your good(s), a service mark is a brand for one or more services that you sell. If you don’t have a registered service mark with the USPTO, you may assert your unregistered service mark by adding a superscripted “SM” to it.
However, just like an unregistered trademark, you’ll probably want to have an experienced trademark attorney review your unregistered service mark to see if there are legal risks, including potential competing claims to the mark by others.
A good patent lawyer will be able to help you determine whether your invention can be protected by registration with the U.S. Patent & Trademark Office (USPTO). As part of the process, you’ll learn the type of patent you’ll want to get to for your intellectual property.
What Is A U.S. Patent?
If the USPTO ultimately determines your invention a “new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof,” then the federal government will grant you the exclusive right to make, use or sell your intellectual property for 14 to 20 years, depending upon the type of patent. If others want to legally use your invention during that time, they have to pay you for the privilege (license) of doing so.
What About A U.S. Provisional Patent?
Like a unicorn, that really doesn’t exist. However, there are some circumstances justifying the need to file a provisional patent application (PPA) for your invention with the USPTO first, especially as the U.S. has now adopted a “First to File” (and no longer a “First to Invent”) patent system, in order to establish priority.
Note that if one files a PPA, it must be “converted” to a regular, non-provisional application within 12 months of filing the PPA, else the PPA is automatically deemed abandoned, i.e. you’ll lose the benefits of filing the provisional app and be statutorily barred from filing the non-provisional application thereafter.
Although a provisional patent does not exist (just a PPA), there are 3 types of patents the USPTO can issue depending upon what you’ve invented. Your Registered Patent Attorney will be able to identify the kind of patent you should seek and prepare the application for the USPTO to examine.
This may be the most critical part of a patent: the patent application!
It’s the properly drafted application that can maximize your property and legal rights.
Most patents are utility patents. In rare circumstances, a proposed invention may qualify for more than one type of patent, and/or qualify for copyright protection and/or trademark protection. A Registered Patent Attorney can help.
What Is A Registered Patent Attorney?
Not all lawyers can practice patent law before the USPTO. An attorney must pass a very difficult patent bar exam in order to become a Registered Patent Attorney (RPA). Although there are 1.3 million lawyers in the United States, only about 2% are Patent Attorneys registered with the USPTO.
The average length of time for a patent to be approved is almost 30 months from filing, but the actual time can vary greatly depending on many factors, like the complexity of the proposed invention.
What If Your Invention Doesn’t Qualify For A Patent?
You may learn from your patent lawyer or the USPTO that your intellectual property can’t be protected by a patent.
If that happens, your attorney can advise you on other possible ways to protect your IP, including steps to shield it, for example, as a trade secret. In other words, you still may be able to profit from your invention without having a patent for it.
If you already have an enforceable patent but someone is using a part of your invention without your permission, you should seek legal help from a registered patent attorney (RPA) immediately. Your patent lawyer may be able to enforce your exclusive rights via a court order (an injunction) to stop the infringement, force the infringer to pay you royalties and/or award you damages.
On the other hand, if you’ve been accused of infringing someone else’s intellectual property, you should immediately seek legal advice, preferably from an RPA, as one may be subject to the additional damages (up to three times compensatory damages) from “willful infringement.”
What About Trademarks?
Trademarks can be the most important asset of a company, e.g., one study determined that trademarks make up about 1/3 of corporate value. So, coming up with and then protecting your distinguishing word, logo, shape, sign, expression, etc., that distinguishes your products or services from others, may be a necessary and invaluable business decision.
Can A Patent Lawyer Also Help You With Copyrights?
Copyrights can be invaluable intellectual property for the creator of an original artistic or literary work, e.g., a movie, a song, a book, computer programs, photos, etc. Copyrights include the exclusive right to make, publish and sell your copyrighted property. There are distinct advantages to timely federally registering your copyright.
Can a city’s mayor silence his critics on the Internet using copyright law? That’s the dispute apparently brewing because of voiceover criticisms made against the mayor on YouTube clips of city council meetings.
Are the opinions expressed protected by the First Amendment as fair use or do the videos constitute copyright infringement?
Now, note that the copyright notice covers multiple years.
A common mistake is to simply replace last year with this year (e.g. replacing 2014 with 2015) instead of making the notice cumulative to cover all the years copyrighted content has been added to your site.
For example, a site that has been adding content since 2010 should accurately reflect 2010 to 2015 instead of just 2015 in the copyright notice.
Of course, talk with your Internet attorney if you have any specific questions about protecting your site’s intellectual property.
And, of course, to speak with Internet Lawyer Mike Young about your website copyright notice or other Internet business-related legal issues, you’ll want to go set up a phone consultation with him.
Protect your website from those tilting at copyright infringement windmills
Just then they came in sight of thirty or forty windmills that rise from that plain. And no sooner did Don Quixote see them that he said to his squire, “Fortune is guiding our affairs better than we ourselves could have wished. Do you see over yonder, friend Sancho, thirty or forty hulking giants? I intend to do battle with them and slay them.” – Don Quixote
In Miguel de Cervantes’ novel “Don Quixote,” a fake Spanish knight fights against imaginary enemies, including windmills that he believes are giants. Let’s just say Don Quixote was reality-challenged.
It’s a nice reminder to website owners that there are crazy people out there who can and will harm you if you don’t take precautions. This includes insane politicians who don’t understand the purpose of laws that protect against copyright infringement.
For example, Spain’s got a new law that requires website owners to pay compensation when using a news snippet from a Spanish publisher. It doesn’t matter if you give full credit and hyperlink to drive traffic to the full news story on the publisher’s site.
Google is responding to this nonsense by shutting down Google News in Spain.
Until this all shakes out, avoid quoting from Spanish websites even if the site is written in English. If you’re going to quote more than a sentence or two from any other source, try to get written permission first. Some site owners don’t believe in “fair use” and will accuse you of copyright infringement even if you’re driving traffic their way.
Your Internet lawyer can review your website to see if you’ve got a copyright infringement or other legal issues that need to be fixed.
Illustration credit: Tilting at Windmills by Gustave Doré
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Unless otherwise expressly stated, you should assume that all references to products and services at MikeYoungLaw.com are made because material connections exist between the Law Office of Michael E. Young PLLC and the providers of the mentioned products and services. This may include: (1) an attorney-client relationship; (2) and/or monetary or other compensation.