San Diego Business Lawyer
|BUSINESS AND CORPORATE LAW ARTICLES|
Copyrights and trademarks
San Diego business lawyer Sergei Tokmakov
CopyrightCopyright protects your original work of expression, such as an article, website, software, cookbook, song or a painting from unauthorized use by others. You get the exclusive rights to sell, display, reproduce your work, and sue those that infringe on those rights. Generally, copyright for works made after January 1, 1978, lasts for 70 years after the creator’s death. 17 U.S.C. � 302 (a). For works made for hire, the copyright lasts the shorter of 95 years from publication, or 120 years from creation. Works published under a pseudonym or anonymously are protected for 95 years after publication or 120 years after creation, whichever is first. 17 U.S.C. � 302 (c). Under the current law, it is not necessary to publish a work or display the copyright symbol in order to obtain copyright.
Fair useYour exclusive rights notwithstanding, sometimes others can use your work without your permission, as long as it constitutes “fair use.” Fair use is usually limited to educational, newsworthy, criticism and commentary purposes. For example, somebody may freely summarize or quote a short passage from your article to illustrate a point.
You must register copyright in order to bring a lawsuit for infringement in federal court. It’s best if you register within three months of the date of publications or at least before the alleged infringement happened. U.S. Copyright Office at the Library of Congress registers copyrights. If you register, you may recover up to $150,000 in a lawsuit even without proving any actual monetary damages. Copyright Office records are public, which means anybody has access to them.
If you file online, you will receive a certificate within a few months. Paper filings could take a year. These time frames presume you’ve done everything correctly when you filed. Seek qualified counsel for assistance.
International copyright protectionThere is no uniform international copyright law that will automatically protect your copyright throughout the world. However, your copyright will be protected in most of the countries in the world because U.S. has treaties and conventions with most, yet not all, of the countries in the world to honor each other’s citizens copyrights. For a complete and current list of such countries, see U.S. Copyright Office Circular 38a, International Copyright Relations of the United States.
Trademark is a brand name. You can register your business name, logo, and your product names. For example, McDonald's, the double arched "M" symbol, and Big Mac are all trademarks. Trademark/service mark may include words, names, symbols used, or intended to be used, in commerce to distinguish your goods or services from goods or services of others. The terms “trademark” and “service marks” are often used interchangeably, and both offer the same protections. If you use your trademark or service mark in interstate commerce (you do business with customers in other states or internationally) you can register your mark both at the federal and state level. If you do business exclusively within your state, you can register at the state level.
Federal registrationFederal trademark or service mark registration offers your business the following benefits:
- Your exclusive rights to use the mark nationwide and to sue others for infringement;
- Easier to register your mark internationally with U.S. registration as a basis;
- Ability to record your registered mark with the U.S. Customs and Border Protection Service to prevent importation of infringing foreign goods;
- Public notice of your claim of ownership of the mark;
Listing in the United States Patent and Trademark Office’s databases.
You do not have to be a U.S. citizen to register your trademark or service mark with the U.S. Patent and Trademark Office. Trademark or service mark registration process can take anywhere from 7 months to several years, depending on complexity and on whether you did everything right when filing. The trademark or service mark registration will stay valid as long as you timely file maintenance documents. You must file a Declaration of Use under Section 8 between the fifth and sixth year after registration. You must also file a Declaration of Use and Application for Renewal under Sections 8 and 9 between the ninth and tenth year after registration, and every 10 years thereafter. If you fail to timely submit these documents, your registration will be cancelled and cannot be revived.
State level registrationState trademark registration provides much less legal protection than the federal registration. However, state trademark registration will notify anyone who checks the state's list that the trademark is yours. State level registration is usually quicker. In California, registering a trademark with the Secretary of State can be done in a few weeks.
This note by San Diego business lawyer Sergei Tokmakov is for general educational purposes only. It does not constitute legal advice because your specific case may be different. Readers should seek qualified counsel for assistance. This article may be reprinted, provided that all credit information and this paragraph remain intact.
The information on this site is provided for general educational purposes only; your specific case may be different.
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