This is a continuation of the previous post on Copyrights & Design. To see the beginning of this, please click here.
For willful copyright infringement, the infringer must have access to the original information. Willful infringement carries much larger penalties. Crying “fair use” is a defense in case you are being sued. It is not a get out of jail free card, and if you are invoking it, that means you have already been sued. Not a good thing.
Currently, applications for a copyright cost $45 for the filing. Typically, if there are many items to be protected, such as photographs, or in our case, plans, they can be submitted in one application. These are then called a collection. The caveat is that they all have to be published on the same day.
Trademarks
A trademark is an indicator of source. It shows where a product, design, image was created. The Nike swoosh connotes who made the apparel. Words, logos, sounds, colors, scents can all be trademarked. For instance;
- Sounds such as Intel’s 4 tone jingle identifies it as coming from Intel
- UPS’s brown is highly identifiable on the road
- There is scented embroidery thread that ties back to where the product is from
A trademark has to be distinctive. A person knows something came from somewhere. If it represents a description of a product, and is not distinctive, it can not be trademarked. Here is a “continuum of strength” regarding the ability to trademark something, from least enforceable to greatly enforceable:
- Generic Descriptive – “Orange Juice”
- Merely Descriptive – “Sweet”
- Suggestive Trademark – “Circuit City”
- Arbitrary Use – “Apple”
- Coined Terms – “Unisys”
Phrases can also be trademarked. “You’re Fired” indicates the source, in this case, Donald Trump. If you can directly tie it back to where it came from, there is a possibility to trademark the material. Your rights come from use of the item in question, not by registering it. If it isn’t out there, you don’t have a case. Senior users are presumed by the Trade Mark Office to be the first ones to file it. They are considered the original user. When you register a Trademark, the Trademark office then becomes the policeman. That office will deny registration if there is a previous occurrence of it in their files. Registration is usually geographic in scope. You can register it with your local government, or if you go through the Federal office, it covers the entire nation.
When the Trademark office is reviewing a new submittal, they look at likeliness of confusion. Would a consumer be confused?
- How similar are the 2 trademarks, sights, sounds, meanings
- Is there a similarity in goods and services?
Incorporation of a trademark with the secretary of state provides no protection. It all comes down to how it is used.
This is a Federal Trademark. It is registered with the Federal Government, and you have senior user rights.
You consider this to be a Trademark. This is simply stated by the individual, or company. No other action is necessary. It’s a viewer beware notification not to use this without proper credit.
This is a quick summation of what we learned at Stephen Nipper’s presentation last month. This is by no means a legal representation of what Copyright, and Trademark is, or can do for you. We find it necessary in our industry to have a basic understanding of what our rights are, and what we need to be watchful of. I encourage you to contact a lawyer in your area if you have any further questions on this matter.
>Mark

