Intellectual Property

By: Kyle H. Jensen
Clark, Campbell, Lancaster & Munson, P.A.

Q: How do I protect my written works and company logo?

A: A person or company who creates an original work, such as a children’s book or painting, obtains immediate rights in the form of a copyright. A copyright provides creators of literary, musical, pictorial, and other creative works with, among other things, exclusive rights to reproduce, distribute, and display or perform the work. But a copyright protects only those original, unique works that have been expressed in a tangible form. So, the mere idea for a painting or song is not protected until the creator puts pen (or brush) to paper.

While a copyright is immediate and automatic, enforcing your rights is made easier by registering the copyright with the United States Copyright Office. Registration creates a public record of the copyright claim, thereby giving rise to useful evidence in any infringement dispute that may arise. Registration also allows a copyright owner to obtain statutory damages and attorney fee recovery in a lawsuit for copyright infringement that takes place after registration.

Just as a copyright protects an owner’s original intellectual, creative work, a trademark (or service mark) is a protected word, phrase, symbol, or design that identifies a company and its product (or service). The creator of the trademark obtains rights only upon using the mark in commerce, such as by making sales of product. The general rule of “first in use, first in right” applies. Like with a copyright, registration is not required but is helpful. Registration can be made before the Florida Department of State and/or the United States Patent and Trademark Office. Registration discourages competitors from wholesale copying or mimicking of the mark, provides statewide or nationwide notice of your mark, and prevents registration of confusingly similar marks in the same area of commerce. In some cases, registration allows the mark owner to obtain triple damages and attorney fees when the mark is infringed.

Although the process for registration of copyrights and trademarks is highly accessible, some creators and business owners may prefer to consult with an attorney regarding registration. With regard to trademarks, legal counsel can assist in discussions with the registration office to make the registration process smoother. With regard to both copyrights and trademarks, legal counsel can help you best position yourself for proving your case in the event of a later infringement.

The May 7th edition of “The Law” will be the first of two articles written in honor of National Elder Law Month and will cover the guardianship process and determining whether your aging relative may need such legal protections.