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Intellectual Property Law Attorneys

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An overview on Trademarks, Copyrights, and Patents.

TRADEMARKS

Trademarks are generally distinctive symbols, pictures, or words that sellers affix to distinguish and identify the origin of their products. Trademark status may also be granted to distinctive and unique packaging, color combinations, building designs, product styles, and overall presentations. It is also possible to receive trademark status for identification that is not on its face distinct or unique but which has developed a secondary meaning over time that identifies it with the product or seller. The owner of a trademark has exclusive right to use it on the product it was intended to identify and often on related products. Service-marks receive the same legal protection as trademarks but are meant to distinguish services rather than products.

In the United States trademarks may be protected by both Federal statute under the Lanham Act, 15 U.S.C. §§ 1051 - 1127, and states' statutory and/or common laws. Congress enacted the Lanham Act under its Constitutional grant of authority to regulate interstate and foreign commerce. See U.S. Constitution, Article 1, Section 8, Clause 3. A trademark registered under the Lanham Act has nationwide protection. See § 1115 of the Act.

Under the Lanham Act, a seller applies to register a trademark with the Patent and Trademark Office. The mark can already be in use or be one that will be used in the future. See § 1051 of the act. The Office's regulations pertaining to trademarks are found in Parts 1 - 7 of Title 37 of the Code of Federal Regulations. If the trademark is initially, approved by an examiner, it is published in the Official Gazette of the Trademark Office to notify other parties of the pending approval so that it may be opposed. See §§ 1062 - 1063 of the Act. An appeals process is available for rejected applications. See §§ 1070 - 1071 of the Act.

Under state common law, trademarks are protected as part of the law of unfair competition. Registration is not required. See Unfair Competition. States' statutory provisions on trademarks differ but most have adopted a version of the Model Trademark Bill (MTB) or the Uniform Deceptive Trade Practices Act (UDTPA). The MTB provides for registration of trademarks while the UDTPA does not.

Further protection of trademarks is provided by the Tariff Act of 1930. See 19 U.S.C. § 1526.

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PATENTS

Patents grant an inventor the right to exclude others from producing or using the inventor's discovery or invention for a limited period of time. U.S. patent laws were enacted by Congress under its Constitutional grant of authority to protect the discoveries of inventors. See U.S. Constitution, Article I, Section 8. The main body of law concerning patents is found in Title 35 of the United States Code. In order to be patented an invention must be novel, useful, and not of an obvious nature. See §§ 101 - 103 of Title 35. Such "utility" patents are issued for four general types of inventions/discoveries: machines, human made products, compositions of matter, and processing methods. See § 101 of Title 35. Changing technology has led to an ever expanding understanding of what constitutes a human made product. Specific additions to the Patent Act provide, in addition, for design and plant patents.

Prior to a recent amendment prompted by the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) accompanying the Uruguay Round GATT, patents were normally issued for a non-renewable period of seventeen years, measured from the date of issuance. See § 154 of Title 35. Under the amended provision (which took effect June 8, 1995) the term will be twenty years measured from the date of application.

Patent infringement cases arise under Federal patent law over which the Federal courts have exclusive jurisdiction. See § 1338(a) of Title 28 of The United States Code.

The Federal agency charged with administering patent laws is the Patent and Trademark Office. See §§ 1-26 of Title 35. Its regulations, pertaining to Patents, are found in Parts 2 - 6 of Title 37 of the Code of Federal Regulations. Each patent application for an alleged new invention is reviewed by a examiner to determine if it is entitled to a patent. See § 1.104 of Part 1 of Title 37 (C.F.R.). While historically a model was required as part of a patent application, in most cases today, only a detailed specification is necessary. See §§ 112 - 114 of Title 35.

If an application is rejected, the decision may be appealed to the Patents Office's Board of Appeals, with further or alternative review available from the United States Court of Appeals for the Federal Circuit, or in the United States District Court for the District of Columbia. See §§ 134, 141, & 145 of Title 35.

In 1975 the Patent Cooperation Treaty was incorporated into Title 35. See §§ 351 - 376 of Title 35.

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COPYRIGHTS

The U.S. Copyright Act, 17 U.S.C. §§ 101 - 810, is Federal legislation enacted by Congress under its Constitutional grant of authority to protect the writings of authors. See U.S. Constitution, Article I, Section 8. Changing technology has led to an ever expanding understanding of the word "writings". The Copyright Act now reaches architectural design, software, the graphic arts, motion pictures, and sound recordings. See § 106 of the act. Given the scope of the Federal legislation and its provision precluding inconsistent state law, the field is almost exclusively a Federal one. See § 301 of the act.

A copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work. See § 106 of the act. The owner also receives the exclusive right to produce or license derivatives of his or her work. See § 201(d) of the act. Limited exceptions to this exclusivity exist for types of "fair use", such as book reviews. See § 107 of the act. To be covered by copyright a work must be original and in a concrete "medium of expression." See § 102 of the act. Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered.

The federal agency charged with administering the act is the Copyright Office of the Library of Congress. See § 701 of the act. Its regulations are found in Parts 201 - 204 of title 37 of the Code of Federal Regulations.

In 1989 the U.S. joined the Berne Convention for the Protection of Literary and Artistic Works.

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