FAQs Answered By Our New Jersey Intellectual Property Attorney
At the Law Office of Kattina V. Barsik, Esq., a significant part of our law practice consists of answering questions from clients and potential clients. Below are some of the most common concerns included in conversations with our attorney, Kattina Barsik.
What is a copyright?
A copyright is a form of legal protection that automatically applies to any original work of authorship that is fixed in a tangible medium. Copyrightable works include books, articles, songs, photographs, sculptures, choreography, sound recordings and motion pictures. Tangible media includes paper, canvas, film and digital formats. “Fixed” means that others can access it in its tangible form. A haiku scrawled on a napkin can meet the standard of fixed, but a melody that exists only in someone’s head or in an unsaved document on a computer is not yet fixed. Copyrights protect a creator’s rights to exclusively reproduce, distribute, perform or display a work.
Is copyright registration required?
Copyright registration is not required to establish a copyright; a copyright attaches as soon as an original work is created in tangible form. At that point, copyright owners can start using the copyright symbol (©) as an added measure of protection. Copyright owners can also transfer all or part of their rights to others through licenses, assignments and other types of transfers.
What are the benefits of registering a copyright?
If someone steals your work, then it can be difficult to prove damages arising from copyright infringement, and you won’t be able to file a copyright infringement lawsuit if you have not registered your copyright. Registering an original work with the U.S. Copyright Office with the Library of Congress provides many benefits, such as the ability to sue for damages of up to $150,000 and attorneys’ fees in cases of willful infringement.
How long does a copyright last?
The duration of a copyright depends on the year it was created. Since 1978, most compositions are protected until 70 years after the creator’s death. For anonymous works and works created for a company by its employees, the protection lasts only 95 years.
What if someone infringes on your copyright?
Violation of your copyright is not necessarily a crime, but you can bring a civil lawsuit against someone who wrongfully uses your copyrighted materials. However, if you can prove that they willfully infringed on your copyright for profit, then there may be cause for a criminal case, too. Regardless of whether criminal aspects are involved, getting a lawyer on your side can help you find resolution without having to go to court. A letter from your attorney and/or negotiations may settle the matter in your favor.
What do patents protect?
A patent protects technical inventions such as new and useful processes, machines, manufactured goods and compositions of matter as well as improvements to them. For example, a chemical composition, a pharmaceutical drug, a software code, engines and complex machinery could all be patented. However, you cannot patent a mere idea. For something to be patentable, it must exist in a tangible form and be what the law calls “useful” and “nonobvious.”
What are the different types of patents?
Inventors can file patent applications and be granted patents by the U.S. Patent and Trademark Office (USPTO). The USPTO grants three types of patents:
- Utility: Utility patents cover the creation of new and improved processes, products and machines. They last for up to 20 years and require the payment of maintenance fees.
- Design: Design patents apply to the unique visual identity of manufactured items, such as the unique shape of a headlight on a car. It does not apply to an invention’s functional aspects. These patents last for 15 years.
- Plant: Plant patents protect a new, unique plant’s characteristics from being copied, sold or used by others. The plant must be able to produce genetically identical offspring only through root cuttings, bulbs, division, or grafting and budding. Plant patents last for up to 20 years.
Compared to the copyright registration process, the patent application process is far more expensive, complex and time consuming. For these reasons, applying for a patent requires the assistance of an experienced patent attorney or agent.
What does it take to get a patent?
Innovators who wisely work with patent law attorneys generally collaborate with them or take guidance while going through the following steps:
- Determine whether a patent is the right legal protection for an invention and whether the invention can be patented.
- Conduct a patent search to determine whether any like the one you hope for already exists.
- Determine what kind of patent is appropriate and then submit a well-supported patent application accordingly.
- After a patent examiner approves your application, pay the necessary fees and receive the patent.
What can a patentholder do if others infringe on it?
If you are a patent holder and someone else is infringing on it, do not call law enforcement agents, because they can’t help you. Rather, work with an attorney who can help you file a claim through a civil court, if necessary. If you win through patent infringement litigation, then the offender may be compelled to pay you something or a judge may issue an injunction requiring that they stop their wrongdoing.
What is a trademark?
A trademark is a word, phrase, symbol and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol and/or design that identifies and distinguishes the source of a service rather than goods. Examples include brand names, slogans and logos. Without registration, brands can use the trademark symbol (TM) or the service mark symbol (SM).
What is the difference between a trademark and a trade secret?
Trademarks are tangible, visual branding protectors. Trade secrets, on the other hand, consist of confidential information that is not generally known and can protect profitability. Examples of trade secrets, per the Uniform Trade Secrets Act (UTSA), may be described in documents or online databases that a company should store securely and keep close track of. Experts recommend that product developers keep final product specs secret even from contractors who work on different parts of those products. It is also important to have employees sign nondisclosure agreements.
What are the benefits of trademark registration?
Trademark law prevents other companies from using any marks that may cause a “likelihood of confusion” with existing marks so that businesses cannot co-opt another company’s logo or brand name – but only if they sell goods or services in a related industry. That is why so many companies with the brand “Delta” can coexist: an airline, an insurance company and a faucet manufacturer.
As with copyright registration, a person does not need to register a trademark or service mark to receive protection. However, there are certain legal benefits to registering a mark with the USPTO. The most important benefit of registration is that it grants rights nationwide rather than just in the territories where the brand has been used in advertising. In the age of the internet, such nationwide rights are more important than ever before. In addition, trademark registration allows users to use the registered trademark symbol (®) and creates a public record of ownership. Federal trademark registration also allows brands to register their marks more easily in certain foreign countries. Additionally, companies can file with U.S. customs to stop fake or counterfeit goods from coming into the country.