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Intellectual Property
Intellectual property protects commercially valuable products of human intellect. It includes four major subgroups: copyrights, trademarks, patents, and trade secrets. We can help register your copyrights, protect your trade secrets, and license or enforce any type of intellectual property. If you have been wrongly accused of theft or misuse of intellectual property, we can also help you defend against these claims.
**Please note that our attorneys are not licensed to practice before the United States Patent and Trademark Office. If you wish to apply for a patent or need representation in an inter partes review (IPR) proceeding, we will be happy to refer you to qualified lawyers able to fulfill your needs.
Copyright
A copyright protects “original works of authorship,” including literary, dramatic, musical, and artistic works, whether published or unpublished.
Even though copyright attaches when a work is created, you must register your copyright with the U.S. Copyright Office in order to enforce it. The owner of a registered copyright has the exclusive right to copy, prepare derivatives of, redistribute, perform, or display the work. When unauthorized rip-offs or “substantially similar” copies of a work reach the market, a copyright owner can obtain court action to remove the infringing article. We can help you to register a copyright, license, and enforce your copyrights.
However, there are certain limitations on copyrights that owners should be aware of. The most well-known of these is the “fair use” doctrine, which provides that non-commercial and “transformative” uses of a copyright like parody may not be infringement. There are also defenses to copyright infringement, such as independent creation and the scenes a faire doctrine, which may make material effectively not infringeable. Some copyright owners even allege copyright infringement in the absence of real harm, hoping to seek statutory damages. In these circumstances, accused infringers can benefit from committed legal representation to ensure their side of the story is heard.
Trademarks
A trademark protects the reputation – the “secondary meaning” – that a business builds in the marketplace. Whether it’s a word, a symbol, or a package (“trade dress”), a trademark is a symbol of quality to consumers.
There are two core requirements for a trademark: that you use the trademark in commerce (by selling goods or services), and that the trademark be “distinctive.” Whether a trademark is “distinctive” is a question of law – whether your word or logo tells consumers that your products are different. Even registered trademarks can lose their distinctiveness as everyone uses it generically – which is why the makers of “Kleenex,” “Xerox,” and even “AstroTurf” fight so hard to keep their trademarks alive.
Trade Secrets & Patents
A trademark protects the reputation – the “secondary meaning” – that a business builds in the marketplace. Whether it’s a word, a symbol, or a package (“trade dress”), a trademark is a symbol of quality to consumers.
There are two core requirements for a trademark: that you use the trademark in commerce (by selling goods or services), and that the trademark be “distinctive.” Whether a trademark is “distinctive” is a question of law – whether your word or logo tells consumers that your products are different. Even registered trademarks can lose their distinctiveness as everyone uses it generically – which is why the makers of “Kleenex,” “Xerox,” and even “AstroTurf” fight so hard to keep their trademarks alive.
A trade secret is any information which is not generally known or easily learned.
It allows a business to obtain an economic advantage over competitors because of its secrecy. The classic example of a trade secret is the formula for Coca-Cola: Coca-Cola has never revealed the formula for its signature drink, but has a legally protectable interest in that formula because of its secrecy. Trade secrets require owners to take “reasonable measures” to preserve them, which usually entails drafting and enforcing non-disclosure agreements (NDAs) and preventing leaks of the secret to outsiders.
A patent gives its owner the exclusive right to sell, use, or offer an invention for 20 years from the date of filing the patent application.
Unlike trade secrets, patents only cover “inventions,” which means a product or a process that does something – not information in general. What’s more, patents exclude everyone else from using the invention – even if they created the patented invention legitimately – where trade secrets only prevent misappropriation (theft or wrongful taking) of information.
The United States Patent and Trademark Office will only issue a patent to an inventor if the invention is useful, novel and nonobvious as a matter of law. One of the single largest reasons for trade secret misappropriation and patent infringement stems from the employer-employee relationship. Employees often leave companies with extensive knowledge of the inner workings of a company’s secrets and inventions. Without proper agreements in place to ensure the employer’s rights are protected and recognized, today’s loyal employee could become tomorrow’s biggest competitor. We have extensive experience in developing NDAs and assignment for employers to minimize the risk of these issues.
The Power of Trademarks: Protecting Your Brand and Identity
Trademarks
According to the United States Patent and Trademark Office (USPTO), a trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.
A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from the services provided by others, and to indicate the source of the services.
In this world of influencers and brand identity, logos and identifying words or symbols are becoming more necessary and are frequently expensive. Because trademarks protect those identifying words, names, symbols, sounds, or colors that distinguish each separate brand, brand identity is protected. Trademarks can be renewed forever as long as they are being used in commerce.
A trademark gives you exclusive rights to use your mark in commerce. This can prevent other businesses from using a name that is deliberately similar to yours to confuse the target market and siphon off customers or clients. In the event you have not trademarked your identifying logo or phrase, others could trademark that logo or phrase and force a rebranding which is expensive and may not be effective.
In general, Federal trademark registration has several benefits:
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Constructive notice nationwide of the trademark owner's claim.
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Evidence of ownership of the trademark.
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Jurisdiction of federal courts may be invoked.
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Registration can be used as a basis for obtaining registration in foreign countries.
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Registration may be filed with the Customs and Border Protection (CBP) to prevent importation of infringing foreign goods.
We Can Help
Whatever your legal needs might be, the Spencer Law Firm are experts in the field of law. Contact us for a free consultation.