Patent Lawyer Charleston WV
(304) 342-3976
Charleston, WV
Patent Lawyer
Trademarks, Copyrights and Patents Trademarks and Service Marks A mark is any word, name, symbol, or design that identifies a product or service. A trademark identifies a product (for example, CocaCola). A service mark identifies a service (for example, Holiday Inn). A mark may be registered with the United States Patent and Trademark Office (USPTO) if the mark distinguishes a person's product or service from products or services of competitors. Registration of a mark on the Principal Register of the USPTO entitles a person the exclusive use of the mark. Registration can also be accomplished with a State (usually with the Secretary of State of a particular state). However, State registration does not provide as much protection as Federal registration. Before a mark can be registered, it must be used by the “owner,” and it must distinguish goods or services from others. The owner of a mark cannot register it with the United States Patent and Trademark Office unless the mark is used in interstate commerce. Generic terms that merely describe a class of products cannot be registered. For example, the term motor oil or the word airline would not be accepted for registration. Descriptive or geographical terms cannot be registered unless they have acquired a secondary meaning. A mark acquires a secondary meaning when, through long usage, the public identifies the mark with a particular product. For example, Best Western Motels involves a mark which has a secondary meaning. As stated earlier, registration entitles a person to the exclusive use of a mark. An owner of a mark can prevent others from using it with a court ordered injunction. An injunction is a court order preventing the improper use or duplication of a mark that may confuse the public. One can be an owner of a trademark or service mark, whether or not it is registered. This is common law protection. Registration is proof of ownership and makes ownership rights easier to enforce. The basic question in lawsuits over marks is whether or not the general public is likely to be confused as to the origin of the service or product. If the owner of a mark permits widespread use of the mark to describe a general class of products, the exclusive right to the mark may be lost. Two examples are cellophane and aspirin. Copyrights The word copyright can be defined as a property right in an original work of authorship (such as a literary, musical, artistic, photographic, or film work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work. Copyright protection may be received regarding a wide range of creative, intellectual, or artistic forms or works. These include poems, plays, and other literary works, movies, choreographic works (dances, ballets, etc.), musical compositions, audio recordings, paintings, drawings, sculptures, photographs, radio and television broadcasts. The creator of the wo... |
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