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Patents, Copyrights, and Trademarks: When Do I Need One?

Posted on February 15th, 2019 at 11:39 AM

If you need to consult with an attorney or would like more information on Patents, Copyrights, and Trademarks, please contact the Erie County Bar Association's Lawyer Referral & Information Service.

You need a patent when you have invented or discovered something new and useful and you want to protect your position in the marketplace. A patent is not necessary to make or use an invention. It is a negative right that gives the patent owner the right to prevent others from making, using, selling, offering for sale, or importing the subject matter of the patent in the country in which it is granted. A patent may be obtained for any new and useful process, machine, or article of manufacture, any new, original and ornamental design for an article of manufacture or a new asexually reproduced plant. When a patent is granted, the patent owner is responsible for enforcing the patent and may charge others for making, using, selling, offering to sell, or importing the patented invention through the use of a license.

A copyright is created automatically when you have fixed an original work of authorship or artistic impression in some tangible medium of expression. The subject matter of copyright may be a book, song, play, choreographic work, motion picture, pantomime, sculpture, architectural work, picture, photograph or computer program among other types of works. The owner of the copyright in a work of authorship has the exclusive right to permit the making of copies of the work, to prepare adapted works based on the copyrighted work, to translate the work, to distribute copies of the work to the public by sale, rental, lease, or lending and to perform or display the works publicly. While registration of a copyrighted work with the U.S. Copyright Office is not required to protect an author’s rights in such work, registration is required for a copyright infringement lawsuit to be moved forward in Federal Court.

You have a trademark or a service mark when you use a word, name, symbol, or device in commerce to identify your goods or services and to distinguish them from the goods or services provided by others. The terms “trademark” and “mark” are commonly used interchangeably to refer to both trademarks and service marks. A trademark is meant to indicate to purchasers that the quality of the goods and/or services bearing the mark remains constant and serves as a focal point for your advertising to create and maintain demand for your products and/or services. Trademark rights may be used to prevent others from using confusingly similar trademarks but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. You may obtain a federal trademark registration if you are using your trademark in interstate commerce. Federal registration of your trademark constitutes nationwide notice of your claim of ownership, it creates presumptions of your ownership, of the validity of the registration, and of your exclusive right to use the mark on your goods and services.

If you believe you have something that may be patented, or you have issues with copyrights or trademarks, you should seek the professional advice of an attorney experienced in this area.

Information is current as of 2/2019.