Copyrights and Trademarks

The answer is maybe.  However, before getting into a lot of detail about these common ways to protect your intellectual property, I need to clarify a few things.  I am not an attorney (and I don’t even play one on television).  Before using any of these elements, it is advisable to seek the advice of an attorney who specializes in these areas.  Although many people use these tools to protect their intellectual property without seeking the advice of others, the purpose of this section is to provide the reader with enough information so that when they seek the appropriate counsel, they have a better chance of understanding and participating in the conversation. 

What is a Trademark, Servicemark or Copyright?

Let’s start by reviewing the common definitions of Trademark, Servicemark and Copyright.  Keep in mind that these are all ways for persons, companies or other legal entities to provide varying degrees of protection to various types of intellectual property.

Trademark is a distinctive sign used to identify a particular product and distinguish it from others in the marketplace.  Unregistered trademarks are denoted by a tm at the end of a logo, name or phrase identifying a proprietary product.

Servicemark is a form of trademark but typically, as its name implies, applies to a service as opposed to a physical product.  Unregistered servicemarks are denoted by an sm after the service name, logo or phrase.  These marks are typically used in advertising materials and are less universally accepted around the World than a trademark.

Copyright is used to protect original works of authorship and denotes the right to copy, or more importantly, not copy, these original works.  Is that vague enough?  A copyright can be applied to written works, motion pictures, art, sound recordings, choreography or computer programs just to name a few.  A copyright holder has the right to copy and use their intellectual property without restriction or to license someone else to do the same.  Conversely, the holder also has the right to prevent someone else from doing the same.

Trademarks and Servicemarks

Anyone can enjoy trademark or servicemark protection in two ways:

• Basic Protection – By simply adding a tm or sm symbol after the item to be protected, the owner of the intellectual property has denoted this item as a trademark ™ or service mark (sm).  For example, NovelHelpsm is our service mark.  This method allows the owner of the intellectual property to provide some basic level of protection.  This protection is typically restricted within the current geographic region of operation or geographic regions of likely expansion.
• Registered Protection – To achieve even greater protection, the owner of the intellectual property can go through the process of registering the trademark or service mark with the US Patent and Trademark Office.  While a little more work, this provides the best protection for the intellectual property.  We have applied for this level of protection with our servicemark for NovelHelp.  Once approved, the owner can now use the official symbol, ®, for a registered trademark or servicemark.  This symbol means that the owner has registered this mark with the US Patent and Trademark Office.  Even with this more formal level of protection, the use of the mark may be restricted to a market, use or geographic area.

Once you begin using a trademark or serivcemark, be sure to use the correct symbol after the first or most prominent use of the mark in a document or on a page.  Then note ownership of the mark by using a phrase like one of these examples below.

For an unregistered trademark or service mark (even if registration has been applied for but the certificate of registration has not yet issued):

Example: NovelHelp℠ is a servicemark of NovelHelp, LLC.

Once a certificate of registration is issued, the proper notation will be:

Example: NovelHelp® is a registered servicemark of NovelHelp, LLC

How do I Register a Trademark or Servicemark?

An application for registration of a trademark or servicemark can be filed through the US Patent and Trademark Office.  This can be accomplished online at www.uspto.gov.  Within this web site, users can get their questions answered about restrictions and levels of protection as well as search the databases for other uses of similar marks.  An application can be filled out to register your mark using TEAS (the Trademark Electronic Application System).  You can also use the old-fashioned snail mail method and mail your application to the USPTO.  Of course, a small fee must accompany your application.  The entire process takes anywhere from a year to several years.  You will be assigned a serial number for your application that must be used in future communications and to track progress of the application.  During the course of this time, your application is reviewed for completeness and assigned to an attorney for formal review.  The attorney will be reviewing the mark for uniqueness.  During this time expect to receive several office actions.  Do not be afraid of these or assume that your application is denied.  Do, however, promptly respond to these office actions and include your application’s serial number in the response.  Often these responses can be taken care of online.  These are simply questions that the attorney reviewing the application is asking to clarify certain aspects of your application.

After surviving the initial reviews, your mark will be published by the USPTO in the Trademark Official Gazette along with other marks.  This allows your mark to be viewed by others to further ensure that it does not infringe on an existing mark.  If no challenges are heard within 12 weeks of publication, a certificate of registration is issued.  If challenged during that 12-week period, you will be notified and provided with an opportunity to defend your mark or provide additional information.

How do I Defend a Trademark or Servicemark?

The key to a good defense is a strong offense.

• First, make sure that your trademark or servicemark is strong by selecting a unique word(s) or image to trademark or servicemark.  Avoid using common words found in a dictionary.
• Next, registration of your mark is the key.  Once a mark has gone through the rigorous process of registration, it is more likely to be defensible in court.

The next line of defense is to seek the advice of an attorney who specializes in these events.  Failure to defend the action may result in you losing the protection of your mark.

Copyrights

A copyright is much easier to obtain than a trademark or servicemark.  The original work does not have to be registered or published in order to be considered copyrighted.  It just has to be created as an original work.  Best practices are to denote the copyright and, for ultimate protection, register it with the US Copyright Office at http://www.copyright.gov.

Sometimes the creator of the original work may not be able to claim the copyright.  For example, if it was created while under the employment of someone else, it may be determined to be a work for hire situation.  In this case your employer may be able to claim the copyright.  Be sure that when you create the original work that you are not under the employment of someone else at that time.  In other words, don’t write your book while you are sitting at a desk in an office building under the employ of someone else.

Copyrights can be noted as follows, however, it is your work whether or not you put this notation at the bottom of the page:

© Copyright 2010 by NovelHelp, LLC

Since the Berne Convention of 1986, copyrights are recognized in most, but not all, countries around the world.  To be safe, you should verify the copyright laws in any country in which you plan to release your original work.

The length of copyright protection depends on several factors such as whether or not it has been published, and if so, the date of first publication. The general rule for works created after January 1, 1978 is that copyright protection lasts for the life of the author plus an additional 70 years. Terms can vary depending on whether or not the work has been published, the type of work and several other factors.  To determine the length of protection for your specific situation and to learn more about copyright protection, please consult the US Copyright Office at http://www.copyright.gov.