Trademarks

A trademark is either a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services. A trademark may be registered if either (1) the mark is actually used, or (2) the applicant has a bona fide intention to use the mark.

The name of your company is many times an extremely valuable asset and can be protected from unfair competition and confusion in the marketplace by filing trademark applications. If the name of your company is important, the filing of Federal Trademark and State Trademark applications is highly recommended. If you are well funded and intend to do business internationally, trademark applications should also be filed in every country in which you intend to sell your product or service, subject to the terms of any treaty between the USA and the countries where registration is sought. It is highly recommended that you consult with an attorney for the purpose of securing international trademark registrations.

If the name is less important, you still should, and may be required to, file a fictitious business name statement ("dba") in the state where you intend to do business. Trademark registration is used to prevent competitors or others from using your tradename in the class of goods or services sold by your business. This is to prevent use of your trademark in a manner which causes confusion in the marketplace or allows another to gain an unfair competive advantage by using a trademark substantially similar to yours.

Although actual use of a tradename provides business owners with common law rights to their trademark, business owners must also enforce their trademarks in order to prevent a waiver of their right to restrict the use of the tradename by others. Since federal registration gives additional remedies under law as well as constructive notice of the trademark's use within the United States and treaty countries which recognize U.S. trademark registrations, enforcement of the superior right to use the mark is generally made easier by having a federal registration.

Copyrights

Copyrights primarily cover artistic and literary works. However, copyright coverage has been expanded to include the protection of expressions and designs set forth in a tangible format. Copyright protection is granted for works including, but not limited to, recorded music, written music, lyrics, poetry, computer programs, screenplays, theatrical plays, films, paintings, photography, sculpture, jewelry design, fashion design, architecture and books. Copyright protection lasts from the moment of creation to 50 years after the death of the creator or author. In the case of joint works, the 50 years starts after the last surviving authors death. When the work is one "made for hire," the duration of the copyright is 100 years from creation or 75 years from publication, whichever is shorter.

Patents

Unlike copyright and trademark protection, which extend under both common law and federal law, patents are only granted under federal law by the U.S. Patent Office. Patents; cover inventions. There are two types of patents - functional (or utility) patents and design patents. Functional patents cover the functional features of a process, machine, manufactured item or composition of matter. Design patents cover ornamental designs for an article of manufacture. In order to obtain a patent, the invention, must generally be new and nonobvious. Functional patents are granted for 20 years from the date the application is filed, whereas design patents provide protection for 14 years from the date of federal grant. If the product you intend to sell is an invention which may be provided patent protection, a patent grant will generally increase the value and desirability of your company, and should therefore be sought early on. A patent attorney should be contacted for the purpose of obtaining advise on the patent process and for filing the patent application.

Information and forms regarding copyrights, trademarks and patents are available from the U. S. Patent and Trademark Office, Washington, DC 20231. Also, the applicable regulatory agency of each state has information on trademark registration within its state. Also, numerous online resources exist which provide information about trademarks, copyrights and patents. In fact, the U. S. Patent and Trademark Office has its own web site, which has a great deal of information about patents, trademarks and copyrights. The web site is located at http://www.uspto.gov.