Patents, Trademarks, and Copyrights in Providence, Rhode Island

Copyrights


 
 
Innovative Company Concept — Law Office of Henry V. Boezi III, P.C. in Providence, RI
 

Interactive Patent Searches

Design is a continuing, dynamic process. It is not like an on-off switch. Patent Searches, therefore, should help an inventor in the Design Process. By integrating the patent search with the design process, I have developed a unique way of performing Patent Searches. After meeting with our Client to understand his or her invention, I perform a Preliminary Patent Search. Then we meet to give our Client copies of all relevant Patents I found and we review them together. This allows our Client to decide whether to have the Patent Search completed, to modify his or her design before doing so, or to go no further because one or more of the Patents I found are too similar to his or her invention. If the latter occurs, and it does occasionally, our Client has been advised of these similar patents much earlier than he or she would have if they had a Patent Search done in the usual manner, i.e., pay the full amount and receive the results when it is completed. This translates into a savings of between $500.00 and $800.00 to our Client. Read more
 

 

The Basics of Trademarks

 

What is a Trademark?

Trademarks and the concept of trademark protection have been in existence for literally thousands of years, dating back to the days of the Roman Empire when blacksmiths would emblazon swords that they had crafted with a distinctive symbol. The trademark was affixed to the finished product to identify the originating craftsman or shop.

Trademarks have come a long way since that time and can now consist of nearly any type of identifying feature that signifies or identifies the person or company that created, sells or markets a particular product or service. Trademarks can consist of any single or combination of identifying features including but not limited to the following:
 
  • Names
  • Words
  • Phrases
 
  • Logos
  • Symbols
  • Colors
 
  • Scents
  • Designs
 
  • Images
  • Sounds
 
A trademark not only serves to identify the producer or seller of a particular product or service but also serves to differentiate the item from similar products produced by a competitor. Trademarks can be owned by individuals, businesses or any other legal entity and are considered to be Intellectual Property. They also may be sold, leased or licensed to outside parties but also must be "in use" to be considered protectable.

Trademark protection applies to both registered and unregistered symbols, logos, designs, etc. For instance, if a company has sold a product under a distinctive brand name for a period of time without registering that name with the United States Patent and Trademark Office or the Secretary of State of any state, the trademark may still be afforded protection and the Owner or Licensee may seek and be awarded damages for any infringement.

 

Registration

Using any of these forms or a combination thereof to distinguish one's product or services can afford the owner trademark protection under what is known as "Common Law Trademark Protection." However, it is advisable to register a trademark in order to be afforded the highest level of protection and to ensure the owner the ability to recover damages if trademark infringement occurs.

Federal trademark registration is handled through the U.S. Patent and Trademark Office (PTO). States also have a process for trademark registration. For example, in Rhode Island, trademark registration is handled through the RI Secretary of State's Office. In order for a trademark to be registered, it must be:
  1. A Trademark, Service Mark, Collective Mark or Certification Mark (more on these distinctions later)
  2. Used in such a manner as to distinguish the goods or services from those of others
  3. Distinctive, arbitrary or fanciful
  4. Not confusingly similar to marks previously or currently in use or registered.
Trademark registration can be a lengthy and detailed process and it is advisable to obtain the services of the attorney, who specializes in this area of practice. Before a tradeark can be registered, a search must be performed to establish whether the criteria listed above are met. In addition, there is a period whereby competitors or other entities may contest this registration.

So before you add that new logo to your stationery or launch that new packaging for your product, be sure that this new trademark can be registered or is not infringing another mark and that all the time, effort and cost you expend in marketing, distributing and selling the goods or services associated with your trademark or service mark will not be wasted.

 

What Can Be Protected?

Whether it is due to the overwhelming opportunities available for publication in this internet age or a surge in American creativity, the practice of Intellectual Property Law has never been stronger, or of more importance. So for the upstart writer, photographer, musician, etc., the first question is what can be covered by a copyright?

The easiest answer is specific works of the following which are "original":
 
  • Literature
  • Poetry
  • Music
 
  • Choreography
  • Photography
  • Motion Pictures
 
  • Cartoons
  • Graphic Arts/Sculptures
 
  • Dramatic Works
  • Architectural Works
 
or any other similar "finished" product that is the creative and original work of the applying author. An example of a "finished" work would be a script for a screenplay which can be covered by copyright protection while a concept or "treatment" for one can not be covered.

Also, compilations or arrangements of non-copyrightable materials can be copyright protected if the arrangement or compilation is deemed to be both original and creative. For example, various maps, forms, tables, calendars, and directories are very often, in and of themselves, not eligible for copyright protection. However, a compilation of these types of materials that is deemed to be original and creative can be afforded copyright protection. Say a person wanted to create a visitors' guide to Providence, Rhode Island. The maps, tables, restaurant names, bus schedules, etc., would not be eligible for copyright protection individually. But as a creative and original compilation or "arrangement" of these materials, this guide could qualify for protection under the US Copyright Act.

For specific answers to your questions regarding copyrights and intellectual property law, you are encouraged to consult the attorney, who specializes in this area of practice.

 

Registration & Duration

Although many types of "creative" and "original" Works are deemed to have copyright protection from the moment that the Work is created and "fixed in any tangible place," in order for the owner of the copyright to receive greater rights and increase his or her ability to protect those rights, the Work should be registered.

The United States Copyright Office is a division of the United States Department of Commerce. Registering with this office will greatly enhance the copyright owner's ability to seek various types of damages if the copyright has been infringed upon by an outside party. One should seek legal advice before applying for registering a copyrighted Work, as it should be determined whether the Work is copyrightable, i.e., the type of Work for which registration can be obtained. Simply applying to register a copyright does not necessarily mean that the work in question is copyrightable.

The duration of copyrights varies from what type of work is in question as well as when it was created or registered. A work that was created on or after January 1, 1978 is protected from the time it is created, usually for the author's life, plus 70 years after the author's death. For "a joint work prepared by two or more authors who did not "work for hire," the term is for 70 years after the death of last surviving author.

The copyright term for works created and published or registered before January 1, 1978 is the same as for those created on or after January 1, 1978, namely, life of the author plus 70 years. The 95/120-year terms for works for hire apply to pre-January 1, 1978 to these works also. However, the term of copyright for these works cannot expire before December 31, 2002. For works published on or before December 31, 2002, the term will not expire before December 31, 2047.

A "work made for hire" is one prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned for certain types of use such as a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, or an instructional text, if the parties agree in writing instrument that the work will be considered a work made for hire.

The copyright term for works made for hire and anonymous and pseudonymous works (uness the author's identity is revealed in Copyright Office records) is either 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.

As with all areas of Copyright and Intellectual Property Law, it is advisable to consult the attorney, who specializes in this area. A number of law schools offer what is known as a Masters of Intellectual Property degree and the advice of the attorney, who has this level of scholarship, can be essential from the moment a work is created all the way through the enforcement or recovery of any infringement.

 

Exceptions to the Rules

As we discussed above, "original" and "creative" works of various types are afforded copyright protection under the Federal Copyright Act of 1976. These works can include but are not limited to the following:
 
  • Literature
  • Poetry
  • Music
 
  • Choreography
  • Photography
 
  • Motion Pictures
  • Graphic Arts/Sculptures
 
  • Dramatic Works
  • Architectural Works
 
These copyright protections commence from the moment the work is created and "fixed in any tangible medium." This means that a work does not need to be published to be protected, merely saved in any form or format. This affords the author, artist or creator of the work to have exclusive right to publish, distribute, sell, lease, or perform this copyrighted material.

However, as in most cases, where there are rules, there are also exceptions. Original works can be reproduced under what is known as the "doctrine of fair use." This exception allows for reproduction and limited distribution for such uses as criticism, news reporting, comment, teaching, scholarship, or research. For example, a high school teacher who makes copies of a copyright protected poem for his or her students to read and comment on is not in violation of copyright laws.

Another exception in copyright laws is what is known as "Work for Hire." This exception applies when a person or employer engages an individual or group to create an "original" work on their behalf while receiving compensation in any form. This affords the person compensating the creator to hold the copyright for the material for which they have engaged the creator. For example, had I hired another individual to author this article on my behalf and had compensated that person in any way, I would be the owner of this copyrighted material. When dealing with Work for Hire arrangements, I have always encouraged the employer to obtain an express written agreement signed by both parties.

 
DISCLAIMER: This article is intended for informational purposes only.
It should not be construed as legal advice and readers are encouraged to consult with the attorney regarding these matters.