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The
Patent Act requires that someone who wishes to obtain a
patent satisfy certain requirements. Generally, a
potential patentee must be prepared to demonstrate that
she (or he) has developed a new, useful, and nonobvious
process or product. 35 U.S. C.A. Sect. 101. This
demonstration is made through the patent application.
The
patent application will describe how your invention works
and what the patentable features of the invention are.
The
Patent Office will examine your application and conduct a
search of past patents to ascertain whether the claims are
actually new, useful and non-obvious and thus patentable.
During
the life of the patent (usually 17 years, 35 U.S.C.A.
Sect. 154), the owner has the right to determine who will
have the right to use, make or sell the patentable item.
The patent owner may sue anyone who has been using part or
all of the basis of the patent without authorization. 35
U.S.C.A. Sect. 281.
A
trademark is a brand name which is legally protectable -
it can be a word, numeral, letter, symbol or device which
is used to identify a product and to distinguish it from
the products of others (Coca Cola, IBM, Nikon, etc.). A
service mark is a mark used to identify a service provided
to purchasers and distinguish one service from another
(McDonalds, American Express, Macy's, etc.).
The
registration symbol R encircled is used to indicate that a
brand name has been registered in the U.S. Patent and
Trademark Office. The designations TM and SM indicates
that a brand name is considered by its owner to be a
trademark or service mark. It has no legal or official
significance.
In the
U.S. the right of exclusive use is generally created by
adoption and use of the trademark in connection with the
sale of a product or service in commerce.
Federal
Registration provides benefits which are not otherwise
available:
- Automatic
access to Federal Courts should you need to sue an
infringer.
- The
registration certificate is evidence in court of the
owner's exclusive rights to the trademark.
- The
registration serves as "constructive notice"
of the trademark, even if others do not have actual
knowledge of your trademark.
The
trademark somehow must be recognizable, identifiable, and
different from other marks.
It is
possible to file a trademark application based upon a
"bona fide intention" to use the mark in
commerce in the ordinary course of trade. The filing date
is deemed to be the first date of use. Lanham Act 15
U.S.C.A. Sect. 1051 (b).
The
Lanham Act provided damages to a plaintiff in an
infringement case. A court may award any amount up to
three times the demonstrated damages. Attorney fees are
awarded only in "exceptional cases".
Basics:
- An author is protected as soon as a work is recorded in
some concrete way. Protection is secure until 50 years
after the death of the author. The author or copyright
owner has the exclusive right to make copies of the work.
The basic concept is originality.
No matter
how much is invested in developing a character for public
performance, it is not copyrightable unless it is at some
point reduced to a physical expression. (CBS v. Decosta,
1967). Computer programs have been accepted for
registration for a number of years. The Semiconductor Chip
Protection Act of 1984, 17 U.S.C.A. Sect. 902, borrows
from both copyright and patent law to provide protection
for the physical "chips" upon which computer
technology presently depends.
Congress
granted record companies a copyright in their phonorecords
in 1972 and empowered them to bring infringement actions
against pirates. Note that the underlying musical
composition is a separately copyrightable work of
authorship. Upon the composer authorizing the use of the
composition in the production of a sound recording,
(compulsory license) his control diminishes.
Watch
this space for monthly case updates.
Should
you wish to discuss your property please call me for a
free no obligation consultation and evaluation at 1-
800 - STAR 203 or E-Mail to ADVICE@MAFLAW.COM. |
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