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1-3. Copy Rights, Trademark, licensing, and Trade Secret

Claims What is a Copyright?

  Copyrights protect the owner from the unauthorized copying, distribution, performance and display of the Works and unauthorized creation of derivative works. Copyright in the United States also protects the "moral" rights of attribution and integrity, for the visual arts. Thus, copyrights do not protect the owner from use by others of any idea, procedure, process, system, method of operation, concept, principle or discovery revealed by the Work.

  Copyrights to a Work automatically vest in the author or joint authors of the Work at the time the Work is first expressed in a tangible form. Registration or filing is not necessary for vesting purposes, however it is necessary to pursue an infringement action.

  copyright and trade secret protection is often applicable to software programs.

  The duration of copyright protection depends upon details regarding the author(s), the date upon which the work was created and the date of registration with the US Copyright Office. For works created after January 1, 1978 the following terms apply. These terms may not be renewed or extended.

  A work of an individual author is protected for the life of the author plus fifty years.

  Joint works prepared by two or more authors are protected for the life of the last surviving author plus fifty years.

  Anonymous works, pseudonymous works and works made for hire are protected for 75 years from the date of publication or 100 years after creation, whichever is shorter.

What is a Trademark?

  Typically a trademark is a name or word capable of distinguishing goods or services of one source from those of other sources. Other examples of trademarks include: a symbol, logo, graphic design, phrase, series of letters, set of numbers, three dimensional object, fragrance, distinctive design of container, series of sounds, a telephone number, distinctive combination of colors. Function is not protected by trademark.

  Federal and State law govern trademarks. The laws derive from the principle that a merchant has an inherent right to the exclusive use of those marks which distinguish its goods or services. No registration is required for trademarks used in commerce, however, registration provides the assumption that the owner of the registration has exclusive rights to use the mark in commerce for a particular purpose. Such a presumption is not easily overcome.

  First come, first serve, is the policy with trademarks. Whoever registers or uses a mark in commerce first, has the exclusive rights to that mark for the purpose(s) or in the industry.

  In addition, trademark rights may also be registered based on "intent to use," if use in commerce will not occur until after the application is filed.

What is a Trade secret?

  Trade secrets are protected by civil and criminal statutes and common law (note, statutes are enacted by legislative bodies and common law is created by the courts). A trade secret may consist of any formula, pattern, device or compilation of information or other know-how that is used in a business, and gives that business an opportunity to obtain an advantage over competitors who do not know or use it. Some examples of trade secrets include: confidential business information such as new product lines or marketing initiatives and customer lists, formulae for chemical compounds, processes of manufacture, patterns for machines or other devices.

Contact a business law attorney at the Williams & Williams Law Firm

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