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Introduction to Intellectual Property
August 12, 2019

By Susan L. Ford

At Jordan Ramis we practice both intellectual property and business law because these two areas are very much intertwined. After all, your intellectual property is one of your most valuable business assets. For example, your inventions (i.e., patents) can give your business a monopoly for a limited time; your branding (i.e., trademarks) sets your business apart in the marketplace; your creative assets (i.e., copyrights) generate value for your business; and your proprietary information (i.e., trade secrets) gives your business an edge against competitors. Therefore, in addition to concerning yourself with business law topics such as entity formation or sale, outside investment opportunities and contract negotiations, it’s important to remember to protect your intellectual property assets. At Jordan Ramis we will assist you with the registration of your trademarks and copyrights. We will also help you enforce your rights in your patents, trademarks, and copyrights through cease and desist letters, licensing and joint development negotiations, and, when necessary, litigation.

Patents

If you invent something new and useful, you can file a patent application with the U.S. Patent and Trademark Office. An issued patent grants you the exclusive right to make or use your invention for 20 years (or 14 years in the case of design patents) following the effective filing date of your patent application. An invention can be a physical object, process, system, plant, or design.

Patents encourage inventors to disclose new inventions; and this contributes to the advancement of ideas and technology. They are intended to incentivize inventors and investors to work on and capitalize revolutionary new innovations by excluding competitors from using the same invention for twenty years (or 14). Once you patent your invention, in addition to using it yourself—i.e., to make or do whatever you invented—you can also sell or license the patent to others. Patents can be inherited, assigned, mortgaged, and taxed. You must file your U.S. patent application within a year of making the invention publicly available, and the process is complex. We highly recommend using a registered patent agent or patent attorney to prepare and prosecute the patent application and Jordan Ramis can help you with the enforcement of your patents once registered.

Trademarks

Trademarks and service marks are often known as “brand names.” Having a unique and protected brand name ensures that your company and product are uniquely yours. In other words, when the public purchases a product with that name, it will be reliably from the same company with the same standard of quality. This predictability is essential to growing a business’s goodwill and developing a loyal following.

You can file an application for a trademark with the U.S. Patent and Trademark Office (USPTO) either while using the mark on a product or service or in anticipation of using it on a product or service. Once you’ve filed the application, you have priority over any subsequent applicants with the same or similar mark to be used in the same (or related) class of goods and services, assuming that the mark is eventually issued. Registering your mark gives you security that you have the exclusive right to use your mark throughout the U.S. for the classes of goods and services for which you have a registration. This means that you are less likely to have to change your product or business name after you’ve invested significant capital in promotion, production, packaging, etc. If another company comes forward claiming it owns the rights to the mark, you will have a much easier time defending your use, and prohibiting theirs, if you have a registration. It also protects your product from knockoffs and brand dilution.

Although a federal trademark registration grants you certain rights that you don’t have at common law, you can also acquire trademark rights merely by using your mark in commerce on a product or in association with a service. To enforce your rights, however, you will need to show that you were using the mark before any challengers in the same classes of goods or services. And, your rights to its exclusive use will be limited to your actual market territory and its “zone of natural expansion” if you had plans to expand before the dispute arose. Registering your mark is a more secure way of ensuring that you maintain the exclusive rights to your brand name.

Unlike patents, federal trademark registrations can be renewed indefinitely so long as the mark continues to be used in commerce and protected through the enforcement of your rights against infringers.

Copyrights

Copyrights protect artistic or creative works, such as books, movies, pictures, sculptures, music, and computer programs. Whoever owns the copyright to a work is allowed to distribute, display, reproduce, perform, or use the work to create derivative works.

Copyright arises upon creation, i.e., once the idea of the creative work has been reduced to tangible form. Under current law, copyrights last for the life of the author plus 70 years for individual works and for 95 years from first publication for corporate works (i.e., works “made for hire”). Like a trademark, there is no requirement that you register a copyright with the federal government in order to enjoy the legal right to its protection. However, without registering, you do not have the right to sue another for infringing on your copyright, nor do you have the right to recover statutory damages or attorneys’ fees from those that infringe prior to your registration date. Instead, only an award of actual damages (which are hard to prove) and profits earned by the infringer are available to you as the copyright owner.

Susan Ford is an intellectual property attorney and business litigator at Jordan Ramis PC. Contact her at susan.ford@jordanramis.com or (503) 598-7070.
   
Thank you for your interest in this blog. The information contained in this blog is for the general interest of our readers and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact Susan Ford. 
 



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