jordan holton mike aguilar brandon clarke dhanvin desai nathan reaver copyrights © and trademarks...

Jordan HoltonMike Aguilar

Brandon ClarkeDhanvin DesaiNathan Reaver

Copyrights © and

Trademarks®

• Copyrights:– What is a copyright?– How do you apply for a copyright?

• Trademarks:– What is a trademark?– How do you apply for a trademark?

Overview

What is a copyright?

• Form of intellectual property Creations of the mind Common types: copyrights, trademarks, patents,

industrial design rights and trade secrets

• Gives author of original work ownership and exclusive rights

• An original work of authorship includes:oLiterary worksoDramatic worksoMusical worksoSoftwareoPhotographsoAnd certain other intellectual works

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What is a copyright?

• Protects the expression of an idea

• Does not prevent independent expression of the same idea

Vs.

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Author’s Rights

• Owner of copyright has exclusive rights to :– Authorize reproduction and distribution (by

sale, rental lease, or lending)– Adapt their work– Prepare derivative works based on their work– To perform or display their work publicly

• Literally “the right to control copying”• It is illegal to violate any of the rights

provided by the copyright law

Copyright Act of 1976

• Primary basis of copyright law• Established:

– Basic rights for copyright holder– Codified the doctrine of Fair Use

• Codified-enacted by a legislative body; "statute law"; "codified written laws"

– Set how long the copyright lasts (Authors Life +70 years)

• Sections 107 through 121 establish the scope of the rights

Fair Use

• Although copyrighted material has rights which are protected by law, there are some limitations.

• One major limitation is the doctrine of “fair use”– Reproducing works for criticism,

commentary, news reporting, research, scholarship, and teaching

• Civil law has other limitations and exceptions

Fair Use

• Fair use factors: – Purpose and character of use

• Commercial nature vs. nonprofit educational purposes?

– Nature of copyrighted work• Fact or fiction?

– Amount of copyrighted material used in relation to whole works

• Is it substantial?

– Effect of use on the market or value of the original

• Will it lower market/original value?

Who can claim a copyright?

• The “author” of the work, and family after the author’s death

• For works made for hire, the employer (not the employee) is the author

• Authors of a joint work are co-owners of the copyright

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Who can claim a copyright?

• Purchase of a book, painting, etc. does not give purchaser a legal claim to copyright

• Transfer of ownership of copyrighted material does not convey any legal rights pertaining to copyright

• Minors can claim copyrights, but state laws may regulate any business dealings involving copyrights owned by minors

What is protected under a copyright?

• Literary works• Musical works (including words)• Dramatic works (including music)• Pantomimes and choreographic works• Pictorial, graphic, and sculptural works• Motion pictures and other audiovisual works• Sound recordings• Architectural works• Artistic works (ex: poetry, novels, movies, computer

software,…etc.)

What is not protected under copyrights?

• Works not set in a tangible form of expression (an improvisation or something not yet recorded/written)

• Titles, names, short phrases, and slogans• Text from the phone book

• Familiar symbols or designs• The circle with a slash symbol

• Listings of ingredients/contents• Variations of typographic ornamentation, lettering, or coloring• Descriptions, explanations, or pictures that show an idea,

procedure, method, system, discovery, etc.• Works that have information that is common property and

containing no original authorship (ex: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources) .

Are there international copyrights?

• There is no international copyright that will protect an author’s work throughout the world.

• Protection against unauthorized use in a particular country depends on the national laws of that country.

• However, most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions.

International Copyright Conventions

• Berne Union for the Protection of Literary and Artistic property:– The Berne Convention for the

Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.

International Copyright Conventions

• The Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way as it recognizes the copyright of its own nationals. For example, French copyright law applies to anything published or performed in France, regardless of where it was originally created.

• In addition to establishing a system of equal treatment that internationalised copyright amongst signatories, the agreement also required member states to provide strong minimum standards for copyright law.

Berne Convention signatory countries (in blue)

International Copyright Conventions

• Universal Copyright Convention (UCC):– Under the UCC, any formality in a national law may be satisfied

by the use of a notice of copyright in the form and position specified in the UCC. A UCC notice should consist of the symbol © (C in a circle) accompanied by the year of first publication and the name of the copyright proprietor (example: © 2006 John Doe).

– The UCC ensured that international protection was available to authors even in countries that would not become parties to the Berne Convention. Berne convention countries also became signatories of the UCC to ensure that the work of citizens in Berne Convention countries would be protected in non-Berne Convention countries.

Granting Copyright

• No publication or registration or other action in the Copyright Office is required to secure copyright. -Berne Convention

• Enacted in U.S. in 1989 to amend 1976 Copyright Act

• Secured automatically when recorded in a “tangible form”– Drawing, sheet music, photograph, videotape, computer

file, etc.

• Creates a public record about the details of a specific copyright.

• Legal formality that is not necessary to receive copyright protection.

• Is needed prior to filing an infringement suit.• Can be made any time during the life of the

copyright.– Registration prior to infringement allows owner to seek

compensation for statutory damages and attorney’s fees– Registration after infringement only permits owner to

seek compensation for actual damages and lost profit

Copyright Registration

ACTUAL DAMAGES

• Actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement

STATUTORY DAMAGES

• An award of statutory damages for all infringements involved in the action

• Sum of not less than $750 or more than $30,000 [per work] as the court considers just.

• The court in its discretion may increase the award of statutory damages to a sum of not more than $150,000, [if willful infringement is proven]

According to US Code Collections Title 17, Section 504

Actual vs. Statutory Damages

Joel Tenenbaum vs. RIAA (Recording Industry Association of America)

• RIAA sued Tenenbaum for illegally downloading and sharing 30 songs (copyright infringement)

Actual Damages• Assuming court awarded $1

per song (actual cost per song)

• Tenenbaum owes $31

Statutory Damages• Assuming court awarded

$22,500 per song • Tenenbaum owes $675,000

Actual vs. Statutory Damages Example

• Submit paper form– Individual forms for basic claims

• Form TX (literary works)• Form VA (visual art works)• Form PA (performing art works, includes motion picture)• Form SR (sound recordings)• Form SE (single serial)

• Required for non-basic claims– Works published as contributions to periodicals– 3-D patterns on semiconductor chips– See more at, http://www.copyright.gov/forms/

• $65 paper filing fee

How to Register, All Claims

• Two alternative options for basic claims– Submit with Electronic Copyright Office (eCO)

• Lower filing fee, $35• Fastest processing• Online status tracking• http://www.copyright.gov/eco/notice.html

– Submit Form CO• Single form for all basic claim media types• Faster processing• $50 filing fee

How to Register, Basic Claims

• There are 4 types of trademarks

1. Trademark

2. Service Mark

3. Registered Trademark

4. Sound Mark

Trademarks

What are they?

• A distinctive sign or symbol used to identify the source of a certain product, distinguishing it’s product from similar products from other sources

• Can be used by an individual, a business or any entity

Trademark TM

• Similar to a trademark, but distinguishes a service provided by a certain source, rather than a product

Service Mark SM

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• A trademark that is registered with the United States Patent and Trademark Office

• It is not necessary to register your trademark, but registration gives some advantages

1. Public Evidence of ownership2. Exclusive rights to use trademark nationwide for your

products and services3. Ability to invoke jurisdiction of federal courts4. Can be used to obtain registration in foreign countries5. Registration may be filed with U.S. Customs Service to

prevent importation of infringing foreign goods

Registered Trademark

Registered Trademark

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Sound Mark

• A non-conventional trademark or service mark, a sound mark is a trademark on an audio recording used to uniquely identify a company or service

• Popular examples of this include, the MGM “Lion’s Roar”, NBC’s chimes, and THX’s “Deep Note”

• Unlike patents, which expire after a specific amount of time, trademarks are issued for 10 year periods, and can be renewed with no limit every 10 years.

Maintaining Trademarks

Application Process

Two Volunteers!

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Application Process

• The first step in the Trademark application process is to determine whether Trademark rights are already being claimed by another. – This may be done for free via TESS (Trademark Electronic

Search System)– It is also possible to conduct a trademark search by

visiting the Trademark Public Search Library in Alexandria, Virginia or any of the Patent and Trademark Depositary Libraries (PTDLs) across the country.

– Trademarks including a design element will have to be searched for using a design code.

Application Process

• TESS (Trademark Electronic Search System) http://tess2.uspto.gov/bin/gate.exe?f=tess&state=4005:grp0aj.1.1

• Trademark Public Search Library http://www.uspto.gov/products/library/search/index.jsp#heading-4

• PTDLs http://www.uspto.gov/products/library/ptdl/index.jsp

• Design Code Manual http://tess2.uspto.gov/tmdb/dscm/index.htm#intro

Application Process

• If a search finds a trademark that may conflict with the trademark in question a follow up search should be conducted via the TARR (Trademark Applications and Registrations Retrieval) database. http://tarr.uspto.gov/

Application Process

• The next step is the identification of goods and services that will be associated with the trademark.

• It will be necessary to have a statement identifying with what the trademark will be used. Also you must state if you are currently using the mark or intend to use it.

• Another consideration is the depiction of your mark. Every application must include a clear representation of the mark that you want to register.

Application Process• Two types of format are available for

the depiction of your mark• Standard Character Format– Used for words, letters, numbers, or any

combination thereof, without claim to particular font size, style, or design characteristics.

– This is used to cover broad rights namely used in many manners of presentations.

• Stylized Design Format– This is used to cover a specific design

appearance to protect.• The two formats cannot be combined into one

mark.

Application Process

• The next step is the filing of the actual application. – This is done online through the TEAS

(Trademark Electronic Application Service).

– http://www.uspto.gov/teas/e-TEAS/index.html

– You can monitor the status of your application through the TARR database

Application Process

• TEAS Form– Filing fee of $325 per class of goods and

services– Not as strict

• Can make “free-text” entry of goods and services

• TEAS Plus Form– Lower filing fee of $275– Stricter requirements

• Have to select goods and services directly from the listing provided by the USPTO

Application Process

• The application contains a series of entry fields including– Name and contact information of the owner

of the mark – Entry of the mark – Entry of the good and/or service

• The application is then submitted to the USPTO

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Application Process

• If the requirements are not met once the application has been filed, the applicant has the ability to overcome the objections– This must be done within 6 months or

the application will be declared “abandoned”

– Abandoned applications can be reinstated by filing an appropriate petition

Application Process

• After the USPTO determines that you have met the minimum filing requirements, an application serial number is assigned and the application is forwarded to an examining attorney. – This may take a number of months. The

examining attorney reviews the application to determine whether it complies with all applicable rules and statutes, and includes all required fees.

– The attorney may either decide that the mark should or should not be registered.

Application Process

• If the application passes it is published in the Official Gazette, which allows others to see if the infringes one their trademarks.

• They then have 30 days to file opposition to the mark.

• If it passes this stage you must start using the mark in commerce within 6 months.

• In order to keep the mark registered you must continue to file maintenance documents.