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Trademarks:
What is a trademark?
Can I obtain trademark protection
without registering a trademark?
Can I reserve a trademark that
I intend to use in the future, but have not actually begun using?
If I reserve a corporate name
with the Secretary of State, does that give me trademark rights in that
name?
If I am using a trademark that
is not identical to someone else’s trademark, can I still be held
liable for trademark infringement?
If I obtain a state trademark
registration, does that registration guarantee that I have the exclusive
right to use the trademark in that state?
Copyrights:
After I create a literary or
artistic work, what do I have to do to obtain a copyright on my creation?
Why would I want to register a copyright if copyright protection comes
into being automatically when I create the work?
Trademarks:
What is a trademark?
A trademark is any word, name, symbol, device, or any combination thereof,
used to distinguish one’s goods or services from those of one’s
competitor. 15 U.S.C. Section 1127.
Can I obtain trademark protection without registering
a trademark?
Yes. Trademark rights are based on the extent of actual use of a mark
in commerce, but federal trademark registration is prima facie evidence
of use of the mark throughout the United States.
Can I reserve a trademark
that I intend to use in the future, but have not actually begun using?
Yes. By filing a federal “intent to use” trademark application.
If I reserve a corporate
name with the Secretary of State, does that give me trademark rights in
that name?
No. A corporate name can never take on trademark status until that name
is used in association with specific goods or services. The corporate
name is likely the business’ trade name.
If I am using a trademark
that is not identical to someone else’s trademark, can I still be
held liable for trademark infringement?
Yes. Trademark infringement occurs whenever two trademarks are “confusingly
similar” to each other. Thus, if the two trademarks are similar enough
to confuse the average consumer as to the origin of the products or services,
then trademark infringement has probably occurred. The trademark examiners
and the courts review a trademark in this regard based on the sight, sound,
and meaning of the trademark.
If I obtain a state
trademark registration, does that registration guarantee that I have the
exclusive right to use the trademark in that state?
No. State trademark laws vary from one state to another, but generally
the state performs only a cursory examination to determine if your mark
is similar to other marks registered in that state. Some states perform
no examination whatsoever, and it is quite possible to obtain a state
trademark registration for a trademark that is identical to an already
existing federally registered trademark. In such a case, a state trademark
registration is of little or no value.
Copyrights:
After I create a literary
or artistic work, what do I have to do to obtain a copyright on my creation?
Nothing. Copyright protection attaches at the moment the work is fixed
in tangible form (e.g. written down). In order to preserve your copyright,
you should (but are no longer required to) mark it with a copyright notice,
which includes the word ìcopyrightî or the symbol ©, the year of creation,
and your name (e.g. © 2001 durham brandt pllc).
Why would I want to
register a copyright if copyright protection comes into being automatically
when I create the work?
Registering a copyright offers procedural advantages if you should ever
attempt to prevent the unauthorized copying of your work. Copyright registration
may be accomplished by filling out a form available from the Register
of Copyrights at the Library of Congress and sending the completed form,
along with appropriate examples of the work and the filing fees, usually
$30, to the Register of Copyrights.
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