When is a patent obtained? A valid patent may not be obtained if the invention was in public use or on sale in this country for more than one year prior to the filing of your patent application. The one year use or sale of the invention bar may arise from either the applicant’s use or sale or from someone else’s use or sale.

TRADEMARKS

What is a trademark? A trademark is words or symbols associated with a product. A servicemark is words or symbols associated with a service. The property right is created by first use of the mark in the marketplace. Once created, the property right is the right to prevent consumer confusion as to the source of goods in a given market. In other words, trademarks or servicemarks are really source indicators. Trademarks can be registered both at the State and Federal level.

What words or symbols can be used as a trademark?Most words or combination of words and symbols can be used as trademarks. However, the type of mark will determine the amount of protection and thus the extent of exclusive use of the mark. A mark that is arbitrary and fanciful (Ex. "Apple" for computers) is the strongest type of mark. Suggestive and descriptive marks get weaker protection. A mark that is generic gets no protection and thus has no intrinsic value.

Is State registration or Federal registration better? A State registered trademark gives its owner more rights than an unregistered trademark, however, a Federal registration gives the greatest protection and preempts any conflicting State rights. For example, say one company (Company 1) has a common law trademark but is only selling a product bearing their trademark in, geographically, one-half of the State (State 1). Another company (Company 2) selling a similar product bearing the same or similar mark, whose mark is Federally registered, decides to expand their market into State 1. Company 2 because of its superior Federal registration, may prevent Company 1 from expanding the use of its common law trademark into the other geographic half of State 1 due to likelihood of confusion as to the source of the goods. A Federal registration does not supplant pre-existing rights (prior user rights) in a mark. In the above example Company 2 could not prevent Company 1 from continuing to use its mark in the geographic part of State 1 where it had previously marketed its goods prior to Company 2’s Federal registration. Company 1 also cannot prevent Company 2 from using its mark in the same geographic market as Company 1. Furthermore, if Company 2 had secured a Federal registration prior to Company 1’s use of its mark, Company 2 could stop Company 1 from using its mark completely.

Should I apply for Federal registration? A Federal registration requires that the mark be used on goods in interstate commerce. Marks used on goods for sale only in commerce within a single State do not qualify for Federal registration. If you are currently selling goods or offering services in interstate commerce, your mark qualifies for Federal registration. A Federal registration is highly recommended for those companies who plan to expand beyond their immediate geographic market and intend to use their trademarks and/or servicemarks in their expansion.

What is a copyright? A copyright is the expression of an idea. It is established when the expression (i.e. product) is fixed by the author on some acceptable medium. No governmental action is required. Unlike patents, companies can be authors.

What rights does a copyright give me? A copyright gives the author the exclusive right to reproduce, adapt, publizice, perform, and display the creative work. Infringement occurs when any of these rights are violated.

Do I need to register my copyright? No, registration is not required because a copyright is created when the expression is fixed by the author on some acceptable medium.

Are there advantages to copyright registration? Yes, Federal registration has advantages particularly when dealing with remedies to copyright infringement. Statutory damages are available to registered copyright owners even if actual damages can’t be proved. These statutory damages can range from $500 to $100,000 per infringement. Attorney fees are also available under the Copyright Act. Probably the most important characteristic of registration is that, if the work was created in the U.S., the author cannot bring an infringement action until the work is registered.

What is the cost for copyright registration? The current fee charged by the Copyright Office of the Library of Congress is $30 per work or collection of works.

How long does a copyright last? A copyright lasts for the life of the author plus 50 years UNLESS the work is a work-for-hire then it is the shorter of 75 years from publication or 100 years from creation.

What is a trade secret? A trade secret is anything with commercial value, ideas included.

How do I protect trade secrets? Trade secrets are protected by keeping the information secret. This is accomplished usually by employment contract agreements, limiting access to the information to specified individuals in an organization, and retaining control of the information that is regarded as a trade secret.

How do I know when something is a trade secret? As mentioned earlier, anything of commercial value that is independently discovered or created is a trade secret. A good example of a well-kept trade secret is the formula for Coca ColaÒ (Coca Cola is a registered trademark of the Coca Cola Company).

What are the limitations of trade secrets? The only protection one has is the threat of damages for misappropriation of trade secrets. Trade secret law is based on State common law, State statutory law (Uniform Trade Secret Act) or both. If someone is able to reverse engineer your product or discovers it through his/her own independent discovery, you will have no recourse. Anything that can be easily reverse engineered should be patented.