Intellectual Property – Trademark – Copyright – Patent
Are Others Violating Your Trademark, Copyright or Patent?
Trademarks, copyrights and patents are forms of business property commonly referred to as “intellectual property.” Each provide distinct rights to the owner to protect the way a business identifies itself to the public and distinguishes its goods and services, and to prevent competitors from copying its original works or inventions. A business’ intellectual property is often its most valuable asset, and for this reason, a target for infringement and misuse by competitors. The business litigation attorneys of Brown & Charbonneau, LLP can help. We have experience going to trial on claims involving all forms of intellectual property and have litigated the nuances and potential pitfalls for the inexperienced.
What is a Trademark?
A trademark includes any word, name, symbol or device used by a person to identify and indicate the source of his or her goods or services, and to distinguish them from those of competitors. To acquire ownership of a trademark, it is not enough to have invented the trademark first, or even to have registered the trademark with the United States Patent and Trademark Office. The owner of a trademark is the person or business who was the first to actually use the trademark in the sale of goods or services. Registration of a trademark does however create a presumption regarding the validity of the trademark in the event a dispute regarding improper use or ownership arises.
To support a legal claim for trademark infringement under federal law, the owner must prove: (1) the validity of the trademark, (2) the infringer’s use of the trademark, (3) in commerce, (4) in the connection with the sale or advertising of goods and services, and (5) that the infringer’s use was without consent. In addition, it must be proven that the infringer’s use of the trademark is “likely to cause confusion,” as to the association of the parties, or as to the origin of the infringer’s goods, services or commercial activities of the owner of the trademark.
What is a Copyright?
A copyright is a form of protection available under United States law to authors of “original works of authorship.” Works that may be protected under copyright law include literary, musical, dramatic, pictorial and audiovisual works. While registration of a copyright with the United States Copyright Office carries certain benefits (such as creating a public record of the copyright claim), registration is not required to create a copyright. A copyright begins to exist automatically when the original work is created. Subject to certain exceptions, the owner of a copyright has the exclusive right to reproduce the copyrighted work, distribute copies of the work to the public, perform the work publically and to display the work publically.
Anyone who violates any of the exclusive rights of a copyright owner is an infringer of the copyright. To support a legal claim for copyright infringement, the owner must show valid ownership of the copyright, i.e. that they are the author of the original work, and that the infringer copied the original work (violated an exclusive right of the owner) without authorization. Although one can own and enjoy the exclusive rights of a copyright without registration, registration is a requirement before a lawsuit for copyright infringement can be filed.
What is a Patent?
A patent is a property right in an invention, granted to the inventor by the United States Patent and Trademark Office. A patent gives the inventor the right to exclude others from making, using or selling the invention in the United States. There are 3 kinds of patents: (1) Utility Patents, which can be granted to inventors of new processes, machines and chemicals, (2) Design Patents, which can be granted to inventors of new designs for the appearance of an item of manufacture, and (3) Plant Patents, which can be granted to inventors or discoverers of certain new varieties of plants. The exclusive right granted by a patent is for a limited period of time, generally 20 years from the filing of a patent application with the United States Patent and Trademark Office.
Anyone who (1) makes, uses, offers to sell or sells a patented invention, (2) within the United States (or imports a patented invention into the United States), (3) during the term of the patent, (4) without the consent of the owner, is an infringer of the patent. In determining infringement, the focus is the scope of the patent, because the purpose of the patent is to apprise the public of what is and what is not protected by a particular patent.
Damages Available for Intellectual Property, Trademark, Copyright, Patent Infringement
If successful in a lawsuit for trademark, copyright or patent infringement, the owner may recover monetary compensation for any actual injuries or losses suffered by the infringement. In addition, in trademark and copyright cases, and patent cases involving a design patent, the owner may recover an award of the infringer’s profits. In all cases, the owner may also seek an order by the court in the form of an injunction, stopping or preventing continued infringement of the trademark, copyright or patent.
Getting Legal Help
The Orange County intellectual property lawyers of Brown & Charbonneau, LLP represent large and small companies, as well as individuals, in cases involving all forms of intellectual property claims. If you are involved in an intellectual property dispute, or would like to learn about your rights and how to protect your business, we can provide you with the information you need. Call us today to schedule a consultation and learn more about how we can help you at 714-505-3000.