The three main tenets to protect your intellectual property are trademarks, copyrights, and patents. Each is approached differently and has its own set of filing rules while also protecting different types of property.
Trademarks can be filed at both the state and federal levels. The main difference in which approach to take is to determine where the main source of business occurs. If most or all of the business is taking place in California, then filing at the state level can provide some protection and make your trademark a part of the public record. The downfall is that the trademark is only protected in California. If it isn’tfiled at the federal level, a trademark is not nationally protected.
When filing for a California trademark, you will first conduct a search of trademarks on file with the California Secretary of State to be sure that your trademark is original. Once you have confirmed the originality, then the process moves to filing your trademark, which will need to be accompanied by a trademark sample. This is submitted with your application to show the usage of the trademark and how it differentiates from other similar trademarks.
It is important to note that if you’re seeking to file a trademark for a cannabis-related business, the state application is the only level allowed. Federal trademark filing for cannabis-related businesses is not currently available.
Copyright laws are vital when the intellect becomes physical ideas such as movies, songs, literature, designs, photographs, and more. Protections provided by California copyright laws mean that the creator has the right to distribution and reproduction exclusivity.
Unlike a trademark, copyright applications in California are done through the US Copyright Office and become a part of the federal system. Copyright applications consist of four main parts:
- The specific category of registration for the work
- Details on when the work was originated and completed
- Where (including the country) the work was completed
- Specific information about the work, such as the title
Copyright protections are granted for the lifetime of the creator, plus an additional 70 years. Like anything else, there is always a catch. While copyright applications seem easy to complete, there are some complexities associated with them. Part of the application must include the limitations of the copyright. This entails providing credit to elements influenced by other copyrighted material that require permissions and licensing.
Patents protect your inventions from others who may try to make, use, sell, or import the invention without the patent holder’s permission. There are three types of patents:
- Utility Patent. This type of patent protects a physical device or a new method of doing something.
- Design Patent. This protects a new and non-obvious ornamental design.
- Plant Patent. This applies to an asexually reproducing plant.
Within these types of patents, protections are granted to everything from physical products to originating a new way of using a mathematical formula (the formula itself cannot be patented). Patents, however, are restricted to a specific country with the exception of imported goods in the US. While a person may hold a patent in Japan that is the same as a patent in the US, the product produced in Japan cannot be imported into the US without the permission of the patent holder in the US.
In general, it takes one to three years for patent applications to process.
WHY ARE INTELLECTUAL PROPERTY ATTORNEYS NECESSARY?
Whether you are an individual or a company that is seeking the help of a qualified intellectual property attorney, the most important thing to remember is that they are there to utilize due diligence to protect your rights. An intellectual property attorney can help ensure all the filing details are correct. By going through the process with you, they become familiar with your work. This means they can also help mitigate any situations in which a person infringes on your trademark, copyright, or patent.
INTELLECTUAL PROPERTY RIGHT INFRINGEMENT
When someone infringes on your intellectual property, there are several steps to take, as long as everything is filed properly.
First, your attorney will investigate the infringement compared to your filings to find the specific misuse or unlicensed reproduction. If there has been an infringement, the next step will be to send a “cease and desist.” This grants the other party the opportunity to stop their infringement. In some cases, they may not know they are infringing, and this allows them to use the knowledge that the letter provides to decide how they will move forward. If the letter is not effective, then your attorney may discuss the options for litigation.
If your property is available on the internet, then an attorney may send a “take down letter,” which is authorized under the Digital Millennium Copyright Act. Through this, a letter can be sent to search engines and other online outlets that may list the property without authorization and demand that they remove it. Again, if this is not followed, then your attorney can discuss litigation options.
BLAKE & AYAZ INTELLECTUAL PROPERTY ATTORNEYS
At Blake & Ayaz, our experienced attorneys assist individuals and businesses with their intellectual property. Getting it right the first time is the critical step in making certain that your property is protected. Intellectual property can be difficult to approach, but we’ll help guide you every step of the way. Whether you are looking at trademarking, copyrighting, or patenting, our extensive business law knowledge will go to work for you. Contact our office today and let us help you receive the protection your ideas deserve.