Intellectual Property FAQs
Here, we’ll answer frequently asked questions on intellectual property issues. Have a question you don’t see below you’d like to ask us? Please just contact us.
A trademark is a word, phrase, symbol, logo, or any combination of these used by an individual or company used to identify the source of its goods and services in the marketplace and distinguish them from those sold by others. In short, a trademark is a brand that a company uses to distinguish itself from others in connection with its goods and services.
No. Some marks are not eligible for registration on the Principal Register because they are not special enough. What this means in legal terms is that that in order to have the greatest scope of protection a trademark must have acquired distinctiveness in order to be protectable. Recent examples of marks that lack distinctiveness and are incapable of distinguishing goods and services are the following: DOCK JUMPING for dog jumping competitions; BOARD BUSINESS REVIEW for business publications; THE SALAD STATION for restaurant services, THE BABYSITTING COMPANY for caregiving services, and WHITE SANGRIIIA for alcoholic beverages except beers.
A full trademark availability search of both registered and applied for marks as well as common law databases is necessary to protect you from infringing a trademark that is already in use. When you file a trademark application, you sign the application under penalty of perjury that you are aware of no one else using an identical or similar mark for the same or similar goods and/or services. Moreover, conducting a full trademark availability search before adopting a mark can prevent you from having to change your mark later, which can be costly, and using a mark that may infringe someone else’s rights which could result in a possible lawsuit later on and a possible finding of willful infringement in which a court could order treble damages. We also conduct searches to let us know what types of refusals we may encounter at the U.S. Trademark Office and these searches provide valuable insight in how we might overcome the refusals of registration and whether the mark is worth pursuing in the first place. See our related blog post on this topic.
An Office Action is a letter from the USPTO addressing any and all informalities with the application. These can range from very simple procedural issues that have to be corrected before your application can be approved, to the most serious substantive refusals of registration that may prevent your application from ever maturing to registration. If you have received an Office Action, your application cannot proceed until each and every problem addressed in the Office Action is resolved to the satisfaction of the Examiner. For most Office Actions, you have a prescribed time period to respond, generally speaking 6 months from the date of the Office Action. If you fail to timely respond, the application will be abandoned. Because a Response of Office Action often involves legal arguments, we recommend hiring legal counsel to assist you, especially for serious substantive refusals of registration. See our related blog post on this topic.
Copyright © [first publication year], [legal name of copyright owner]. All Rights Reserved.
This puts the world on notice that you claim copyright protection in your original work of authorship. However, please note, the copyright symbol may only be used when all items within your work are original and owned by you, the author.
- purpose and character - commercial v. educational
It is more difficult to find fair use when the use is commercial.
- nature of the copied work - fact v. fiction and published v. unpublished
There may be more leeway to copy from factual and published works versus fictional and unpublished works.
- amount and substantiability - the less you take, the more likely the use is to be deemed fair, unless you infringe the "heart" of the work
- effect upon work's value - does your use deprive the copyright owner or income or undercut new markets for the work?
These are some of the questions a court will ask when it considers the defense of fair use. Remember, fair use is a defense to a claim of copyright infringement. It is not a right. It is always best to create your own original work and/or ask for permission before using someone else's copyrighted expressions. Just because you see content on in the internet, does not give you a “fair use” right to use it.