ON TRADEMARKS AND COPYRIGHTS
What Sort of Protection is Available to Inventors Beyond the Patent? Here Are Two of the Most Well-Known.
By James F. Riordan
In this issue, let's look at Trademarks and Copyrights, two essential protections for creative people.
A TRADEMARK may be a word, symbol, design or combination of word and design, a slogan or even a distinctive sound which identifies and distinguishes the goods and services on one party from those of another. Used to identify a service, it can be called a service mark. Normally, a trademark is the word or design that appears on a product or its packaging, while a service mark is the word or design that's used in advertising to identify the owner's services.
While patents dwindle in value as they age, trademarks become more valuable the longer they are used. A U.S. court recently forced a Spanish company to stop selling a candy in the United States which was similar to a LIFE-SAVER candy, even though the patent had expired in the early 1930s. The SHAPE of the candy has been a trademark of Life Savers for more than 75 years. The longer such a mark is in use, the stronger the brand name recognition becomes and the more "goodwill" value the trademark has.
If you have an idea for a trademark, you'll need to search the name or logo to be sure no one else is using it. If you'll be making and selling your product in only one state, then you can file for a state trademark. If you'll be selling the product in more than one state, you should file for a federal trademark. Either way, you'll have to search to be sure no one else is using the proposed mark. I always have my patent attorney conduct my trademark searches, but you can do it yourself or the Trademark Register will do it for you for approximately $60. If you want to do it yourself, here are a few tips:
1. Locate a copy of THE TRADEMARK REGISTER OF THE UNITED STATES, which lists more than 800,000 currently-registered trademarks in use, in both U.S. and International classes and give you all the ones listed from 1881 through the present. You can find it at most patent depository libraries or you can purchase one to have on hand. The book costs around $300 and is available through:
THE TRADEMARK REGISTER National Press Building, Suite 1297 Washington, D.C. 20045
2. If you find the mark you have in mind listed in the directory, you must then jot down the class, date of registration and registration number and go to the OFFICIAL GAZETTE of that date and you'll find the mark which will show the company who owns it, their city and state, what the mark looks like, what it is being used for and its first date of use. For absolute, up-to-the-present date searches, you must review the Gazettes through the present week.
Trademark rights arise from use of the mark. A federal registration is not needed for a trademark in order for a trademark to have protection and a trademark may be used without obtaining a registration. In fact, you must use the mark on goods which have been shipped or sold before you can apply for a federal trademark. It's wise to apply for an "intent to use" to protect your right to use the mark if it will be a few months before the product will be on the market. You should give notice to people that you are using your mark as a trademark by placing the letters TM after the mark on your products and packaging. After federal registration, you should use the traditional R with a circle around it to indicate it is a registered trademark.
In previous years, federal trademark registration lasted 20 years, but Congress recently cut that down to 10 years, the same as a state trademark. Both federal and state trademarks can be renewed forever, as long as the mark is remaining in use. Be aware that between the fifth and sixth year after registration, you must file an affidavit stating that the mark is currently in use in commerce.
A COPYRIGHT is a form of protection given by the laws of the U.S. to the authors of literary, dramatic, musical, artistic, and other intellectual work. The owner of a copyright is granted by law exclusive rights to print, reprint, and copy the work, sell or distribute copies of the work, transform or revise the work, and the right to perform and record the work.
I strongly suggest you use a copyright to protect your drawings, test results, safety documents and any and all of your plans, artwork, packaging, instruction booklets, etc. Basically, my advice is to copyright any documents or artwork which you do not want to see used by your competition, OR HAVE USED AGAINST YOU IN ANY OTHER MANNER at some later date. All you need to do to notify others is to mark your work with a C (with a circle or parenthesis around it), followed by your name and the date, as in this sample:
(c) Jim Riordan 2000
In order to be eligible for statutory damages, the work must be registered before the infringement or within three months of publication. The term of copyright protection runs the life of the author plus 50 years for "works not made for hire" and for 75 years from publication or 100 years from creation, whichever is shorter, for "works made for hire."
Copyright registration is inexpensive (around $20) and easy to obtain. For free registration forms, contact:
Register of Copyrights Copyright Office Library of Congress Washington, D.C. 20559
The above article was taken from James F. Riordan's classic book, HOW TO EVALUATE THE POTENTIAL FOR SUCCESS OF A NEW PRODUCT OR TECHNOLOGY. Riordan's highly-acclaimed, 36-point system is a valuable tool for inventors, product evaluators or anyone interested in the invention process. Each section is followed by a comprehensive questionnaire that can be used to evaluate your product.
The highly-recommended book can be ordered by contacting the James F. Riordan Company, 3110 Camerosa Circle, Cameron Park, CA 95682. The company can be reached by phone at (916) 676-4729. The book may also be ordered through Dream Merchant, 2309 Torrance Blvd., Suite 104, Torrance, CA 90501. The phone number is (310) 328-1925.
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