The most effective intellectual property protections are in place from the very beginning. The Baner Law Firm can help you through every step of the process. Whether you are looking to register your Copyright or Trademark, license it, or having a dispute, start by arranging consultation with Daria Banerjee. Please complete our scheduling form or call (650) 383-7663.
What can serve as a trademark?
Virtually anything that can act to distinguish one entity’s goods or services from those of another can serve as a trademark. For example:
- Business names: Apple, Microsoft, McDonald’s
- Product names: “iPhone” for phones, “Big Mac” for burgers, “Les Paul” for guitars.
- Logos: McDonald’s golden arches, Nike’s swoosh, Target’s bullseye.
- Slogans: Capital One’s “What’s in your wallet?” M&M’s “Melts in Your Mouth, Not in Your Hands,” Donald Trump’s “You’re Fired!”
- Sounds: Law & Order’s “Chung Chung,” The NBC Chimes, the ‘Yahoo!’ yodel, the University of Arkansas’s “Hog Call” (“Wooooooooo. Pig. Sooie!”)
- Colors: UPS -Brown, John Deere tractors-Yellow and Green, Owens-Corning insulation-Pink
- Even more unusual distinctions:
- goats on the roof serve as one restaurant’s trademark;
- trash cans shaped like fire hydrants are service marks for a hot dog restaurant; and
- the scent of plumeria (also known as frangipani) is the trademark for a type of embroidery thread.
*Please read a more detailed article about Trademarks here.
How Copyrights Work?
Copyrights protect creative expressions and provide authors the exclusive right to reproduce, prepare derivative works, distribute copies, perform in public and display in public his or her work. An author who has used at least a minimal amount of his or her own creativity to create any such work owns the copyright in that work. Whether you are an architect, writer, artist, performer, software developer, website designer or content provider, you need an attorney who understands how copyright laws crafted for more traditional works can also be applied in a creative way to more cutting-edge technologies.
An author automatically owns his or her creative expressions. An employer is the “author” for purposes of creative content created by employees in the ordinary course of their employment. “Purchasing” creative content does not typically give the purchaser ownership of the copyright in the content. For example, a company or person that hires an independent contractor to author a design, write a brochure or draw a house plan most likely does not own the copyright in the resulting works – despite having paid for it. We routinely assist our clients with reviewing and securing ownership in their creative content.
How long is it good for?
The duration of a copyright depends on the type of author and the date of publication. Currently, works authored by an individual last for the duration of the author’s life plus 70 years. Works made for hire and anonymous or pseudonymous authors are copyrighted for 95 years from first publication or 120 years from creation, whichever is shorter.
Protecting Your Vision
As the phrase “copyright” implies, the author has a right to prevent others from using or copying the work. However, it is not a monopoly right. For example, someone can author an identical expression without prior knowledge of your work. It is also important to keep in mind that copyrights protect the expression and not the underlying idea.
Copyright law also allows unauthorized copying under “fair use” circumstances. These include criticism, comment, news reporting, teaching, scholarship and research. The federal Copyright Act also lists four factors in determining if a particular use is fair:
- The purpose and character of the use, including whether the use is for commercial vs. nonprofit educational purposes
- The nature of the copyrighted work
- Amount and substantiality of the portion used in relation to the whole copyrighted work
- The effect of the use upon the potential market for or value of the copyrighted work
The distinction between “fair use” and infringement is not easily defined. I assist my clients in evaluating whether certain uses may be characterized under this exception. For example, affixing a notice (ex: © The Baner Law Firm 2020) can prevent an infringer from claiming innocent infringement.
I often advise to register your copyrights with the United States Copyright Office, which can provide for substantial damages if someone infringes on your work. The registration provides evidence of ownership and satisfies requirements for filing a lawsuit.
