Q&A with Monica P. McCabe, Esq. as she shares her extensive expertise on the differences between trademark and copyright laws. Monica is a partner and chair of the Intellectual Property Practice at Phillips Nizer LLP in New York.
What is the legal difference between a trademark, copyright and patent?
Trademarks are usually names, symbols, designs or phrases that are used by a person or business to identify its/his products and/or services and to distinguish those products or services from com- petitors’ products or services. As long as a trademark is in use in commerce in the U.S., it can last indefinitely. Five years after registration, the owner must show commercial use of the mark in the U.S.A. A trademark registration must be renewed every 10 years from the registration date. An example of a trademark would be the Golden Arches that McDonald’s restaurants use.
Copyrights cover artistic works such as literary works like books, magazines and computer code; visual works such as paintings and sculptures; musical and dramatic works such as sound recordings, films, and theatre; and architectural works such as designs. Copyrights now last for the life of the creator plus 70 years or for 95 years if it is considered a work for hire. Copyrights can no longer be renewed but the span of a copyright has been changed over the years by Congress so it will vary depending upon when the work was created.
During your extensive experience as an attorney specializing in copyright, trademark issues, what mistakes are commonly made with new start up businesses?
Probably the biggest mistake that start ups encounter is not checking to make sure that no other business or person is using the name that was selected. Sometimes, a new owner will check the records with the Department of State in which he is doing business but he fails to obtain a trademark search. The state records only show what businesses are incorporated. They do not indicate what names have been registered with the U.S. Patent & Trademark Office or which names are in use in the state but have not been formally recorded.
The best way to handle it is to go to an experienced trademark attorney. Business owners should look into smaller firms where the rates will be lower. If the owner cannot pay any attorney, he at least should conduct a search on the U.S. Patent & Trademark Office Web site. There are instructions on the Web site to assist in conducting such a search. In addition, the owner should do his own internet search with a reliable search engine to see if there are any similar names that are being used for the same or similar goods or services that the owner intends to offer.
The other mistake that new business owners make is assuming that it is acceptable to use a name that is similar but not exactly the same as the name the owner intends to use. For example if someone is selling shoes under the trademark Fishskin, the owner should not use the name Red Fishskin to sell boots.
That is why it is best to consult an experienced trademark attorney who can guide you as to what names are confusingly similar. Also, a federal trademark registration covers only the U.S. and its territories like Puerto Rico. To obtain protection in other countries, separate filings need to be made.
Another mistake is copying works from others and using them in the business or using personal information without permission. For example, a business person cannot post pictures on his web site without permission from the photographer and the person depicted in the pictures.
What are some common misconceptions regarding copyright protection?
One common misconception is that a creator must register a work with the U.S. Copyright Office in order to receive copyright protection. Copyright protection is afforded as soon as the work is created. Creators should indicate that they have ownership by placing a © date of creation, name of owner on the work. So, for example, at the bottom of the text, the creator should use the copyright symbol with the name of the owner and the date of creation. In any event, it is a good idea to copyright a work. It can be done online or you could consult a copyright attorney to complete the form and deposit a copy of the work with the U.S. Copyright Office.
To bring a lawsuit against another person or entity, the owner must have a copyright registration, and it is done before the infringement occurs or within a few months of the first publication of a work, the owner can obtain its attorneys fees and certain damages provided in the Copyright Act called statutory damages if it prevails in the litigation.
Do copyright and trademark laws differ for authors, musicians and musical artists?
No, essentially the law is the same.
What resources are available for Free legal information on how to trademark your company’s name for your products or services or how to obtain a copyright?
As stated above the U.S. Patent & Trademark Office Web site, http://www.uspto.gov is a good tool to use when trying to register trademark for a company’s products or services. Some bar associations put out free flyers regarding trademarks and other intellectual property.
Check on the American Bar Association web site, your state or city bar association web site. Also, the Department of State web sites will have information about obtaining a state registration. The same is true for copyrights.
The U.S. Copyright Office Web site is http://www.copyright.gov and it is a good resource to use.
Article originally printed in Modern Miracles Magazine
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