patents, trademarks, and copyrights

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1 post-aia patents, trademarks, and copyrights A Primer prepared by COUNSELORS AT LAW INTELLECTUAL PROPERY RIGHTS, PATENTS, TRADEMARKS, COPYRIGHTS 270 MADISON AVENUE NEW YORK, NY TEL: FAX: INFO@GRR.COM

2 patents, trademarks, and copyrights: a primer Prepared by

3 Table of Contents 1. Introduction What are the Different Types of Intellectual Property Protection Available? Patents...6 What Rights Do I Obtain with a Patent? When Should a Patent Application be Filed?.. 6 Are There Different Types of Patents?... 7 What is Patent Marking?... 7 A. Utility Patents...8 What Can the Subject of a Utility Patent Application be?... 8 Are Computer Programs and Methods of Doing Business Patentable?... 8 What is the Term of a Patent? What is the Process for Obtaining a Utility Patent?... 9 I Plan to Offer My Product For Sale Soon. Can I File Something Quickly to Preserve My Rights?...10 How Do I Take Action if I think My Patent is Being Infringed?...11 Are Patent Searches and Clearance Opinions Important?...12 Can I Obtain International Patent Protection?...12 What Has the New Patent Act Changed? B. Design Patents...14 What is the Process for Obtaining a Design Patent?...15 Are Design Patents of Any Real Value? How Long Do My Rights Last With a Design Patent?...16 B. Design Patents...16 How Do I Tell if Someone is Infringing My Design Patent? Can I Protect My Design Outside the U.S.? Trademarks...17 What is the Difference Between a Trademark and a Service Mark?...18 Should I Undertake a Trademark Search?...18 How Do I Register My Trademark?...18 Why Bother Registering My Trademark?...19 What is the Term of a Trademark?...20 How Do I Give Notice of Trademark Rights?...21 What Should I Do if I Think My Trademark or Trade Dress is Being Infringed?...21 Can I Obtain International Trademark Protection?...22 How Does the U.S. Customs Service Protect Trademarks and Copyrights? Why Place Your Trademark on a Watching Service?

4 4. Copyrights What Rights Does a Copyright Give to the Author?...24 What Rights Does an Employer Have?...24 What Does a Copyright Not Cover?...25 How Do I Obtain a Copyright Registration?...25 What is the Term of Copyright Protection?...26 How Do I Obtain International Copyright Protection?...26 How Do I Enforce My Copyright Rights?...26 Who Do I Contact for More Information? Introduction The questions What s a patent, What s a trademark, What s a copyright?, What do they cover?, and What is the difference between them? are frequently asked by our clients, friends, and colleagues in general practice. To answer these questions in a clear and straightforward manner, we are pleased to present this Primer on patent, trademark, and copyright law (often called intellectual property law). What are the Different Types of Intellectual Property Protection Available? A patent protects a product s utilitarian/ functional or ornamental aspects A trademark protects the brand or symbol that identifies a product s source A copyright protects written and artistic expression Example: A cosmetic manufacturer markets a new perfume, using the name of a celebrity. The art work on the packaging and the artistic shape of the bottle may be protected by copyright. (The shape might also be protected by a design patent.) The name of the manufacturer and the name of the celebrity may be protected as trademarks. The new tamperproof closing for the package and for the perfume container may be protected by a utility patent. 4 5

5 2. Patents A patent is a U.S. Government grant, granted by the United States Patent and Trademark Office ( USPTO ), that gives its owner the right to exclude others from making, using, selling, offering to sell, or importing the invention claimed in the patent. What Rights Do I Obtain with a Patent? The right to prevent others from practicing your invention A patent does not give its owner the affirmative right to make or sell the product disclosed in the patent, since other patents owned by others may exist which cover other aspects of the same product. A patent does however give its owner the right to stop others from making or selling the invention claimed in the patent. These exclusionary rights granted by a patent can be very valuable in part because they allow patent owners to license the right to practice the specific invention claimed in the patent to others. When Should a Patent Application be Filed? Best to file before public disclosure or offer for sale Must be filed within one year of disclosure, public use, or offer for sale U.S. patent applications should be filed before any sort of public disclosure is made or promptly after the invention becomes known to others. Inventions may become known through disclosure such as in a technical talk, public use, or an offer for sale, including by those who obtained information from the inventor. Patent applications in the U.S. must be filed within one year of when the invention becomes known. In many foreign jurisdictions, there is no similar one-year grace period, but if a U.S. application is filed before disclosure, in general, foreign filings can rely on the U.S. filing date. Are There Different Types of Patents? Utility patents protect functionality Design patents protect ornamental appearance Yes. The two most common types of patents are utility patents, which protect the utility or functionality of an inventive product or process, and design patents, which protect the ornamental appearance of all or part of a product. What is Patent Marking? Can use Patent Pending upon filing a patent application Should label with Patent Number when patent issues Notice of patent rights should be given on products to make competitors wary of copying. Pending utility patent applications are initially kept secret by the USPTO for 18 months after filing, unless non-publication is requested. Design patent applications are never published before being granted. Patent Pending marked on a product means that an application for a patent is pending in the USPTO. An inventor may mark Patent Pending on its product or packaging once a patent application is on file. Once a patent has issued or the application has lapsed, this marking is no longer appropriate. Patent No. X,XXX,XXX marked on a product means that a patent has already issued. The use of such a marking notice is required in most circumstances in order to obtain damages from the infringer. Virtual marking is now also available where the marking on products includes the terms patent or pat. followed by a free-to-access web address rather than a list of individual patent numbers. 6 7

6 A. Utility Patents Patent protection is available to anyone who invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvements thereof. What Can the Subject of a Utility Patent Application be? Devices and machines, compositions of matter, systems, and processes, including methods of manufacture and use Utility patent protection can be obtained for apparatus, chemical compositions, systems, and methods of performing a task, to name a few. By way of example, patents may be obtained on mechanical devices, such as motors and carburetors, electrical circuits and electrical appliances, including microprocessors and their programming, chemical processes such as the process for making specific medicines and chemical products, new genetically derived products, and certain plants and agricultural products. Are Computer Programs and Methods of Doing Business Patentable? Computer Programs and Methods of Doing Business may be patented Yes! Utility patent protection is available for certain computer software and for methods of doing business. However, these types of patents are often more difficult to obtain and may result in very narrow patent protection. Methods of doing business include implementations of decision processes. What is the Term of a Patent? 20 years from filing ACTIVE TENSION DEVICE FOR A WINDOW COVERING HYDRODYNAMICALLY OPERATED MULTIFOCAL CONTACT LENS MOUTHPIECE FOR A WOODWIND MUSICAL INSTRUMENT Once issued, a utility patent has a term of 20 years from the filing date. In order to keep its full term maintenance fees must be paid, which are due at 3 H, 7 H and 11 H years after issuance of the patent. The term of a patent may also be extended just prior to issuance if the USPTO takes too much time to examine the application while it is pending. What is the Process for Obtaining a Utility Patent? Application filed with and examined by the USPTO USPTO determines patentability MULTI-LEVEL CHESS GAME WITH ADDITIONAL CHESS PIECES ROBOT SYSTEM AND METHOD METHOD AND APPA- RATUS FOR READING OPTICAL DISCS A patent application is a complex legal and technical document. An application is normally prepared by a registered patent attorney or agent 8 9

7 working in close association with the inventor. In most areas of technology, it is highly desirable, before a patent application is prepared and filed, to conduct a patentability search to determine whether the invention is patentable. A patentability search also allows the patent attorney to present the invention more precisely by enabling the attorney to distinguish it from the prior art found in the search. After an application for a U.S. utility patent is prepared, it is filed with the USPTO. A Patent Examiner who is trained in the technology of the application examines the application. The examination includes the Examiner s own search for prior art patents and printed publications which are then compared to the claimed invention to determine whether the invention is novel and unobvious. The Examiner will also scrutinize the application to make sure that it clearly explains the subject matter sought to be patented from a technical standpoint. If the Examiner issues a rejection based on prior art or raises an objection based on the form of the application, the inventor has up to six months to respond. I Plan to Offer My Product For Sale Soon. Can I File Something Quickly to Preserve My Rights? 10 A provisional utility patent application provides temporary protection by establishing a filing date for the invention If time is running out or if one is not certain whether a complete patent application should be filed, a less extensive provisional application may be filed. This may be followed by a formal or non-provisional application, which must be filed within one year. Because public disclosure of an invention (unless preceded by the filing of a U.S. patent application) generally results in the immediate loss of rights in almost all foreign countries, a provisional patent application is a cost-effective way to preserve rights in the U.S. and around the world. The importance of provisional applications has increased since the passage of the Leahy-Smith America Invents Act (AIA). One of the biggest features of the AIA is that the United States has shifted from a first-to-invent system to a first-to-file system. Under the old rules, an inventor who demonstrated that he or she was first to invent by showing both the conception of a novel idea and the reduction to practice would be rewarded with a patent over another inventor who first filed an application for the same invention. Now, the person who is first to file a patent application, even a provisional application, is the one eligible to obtain a patent. This new rule harmonizes United States patent law with the laws of much of the rest of the world. Therefore, it is important to have something on file as soon as possible. How Do I Take Action if I think My Patent is Being Infringed? Investigate, then consult with intellectual property counsel If you believe that a third party is using, making or selling your patented invention, you should consult with a patent attorney. Your attorney will review with you the nature of the third party s use and whether there has been an incidence of infringement. If there is an infringement, your counsel may recommend that a cease and desist letter be sent to the third party. You are also entitled to file a lawsuit for patent infringement in federal court, seeking an injunction against further infringing use and requesting monetary damages, which may include your lost profits, the infringer s profits, or a reasonable royalty. Damages may also be trebled where the court makes a finding that the infringement was willful, and in certain exceptional cases, attorneys fees can be recovered as well. BLUNT TRAUMA REDUCTION FABRIC FOR BODY ARMOR COCHLEAR IMPLANT ELECTRODE ARRAY HYDROPONIC GROWING SYSTEM 11

8 Are Utility Patents of Any Real Value? Can prevent others from practicing, can license, or can sell Injunctive relief as well as damages available to patentee Today, an increasing number of companies recognize the benefit of protecting inventions with patents. While they are more difficult and costly to obtain than copyrights or trademarks, a patent can give you a competitive edge for many years. Patents are assets which can impact a company s value in several ways. For example, a patent may be used to keep competitors from selling products that compete with products being made by you or your company. Patents may also be licensed to others for a royalty that increases cash flow and profits. A patent portfolio may also be sold outright to another company for millions, or even billions of dollars, depending on the technology that is protected by those patents. conventions and has signed treaties, such as the Patent Cooperation Treaty or PCT, which enable a U.S. patent application to be eligible for filing in other countries. Prior to seeking foreign protection, a patent attorney should be consulted since the attorney is typically familiar with patent laws in foreign countries and has worked with foreign counsel who are well-versed as to their own country s patent laws and practices. Are Patent Searches and Clearance Opinions Important? Useful to determine potential problems Yes! Before you launch a new product or process, you should consult with your patent counsel to confirm that the product or process is not covered by another s patent. You should, additionally, consult with and seek a formal opinion from your counsel if a third party accuses you of patent infringement. This will help you gauge what your defense strategy should be. Can I Obtain International Patent Protection? International protection available An issued U.S. patent only provides protection in the U.S. It is frequently desirable, however, to obtain patent protection in other countries which may be of commercial importance. The U.S. is a member of several 12 13

9 What Has the New Patent Act Changed? The America Invents Act of 2011 includes the most comprehensive changes to U.S. Patent law in decades. The changes are too complex and detailed for discussion here, but one major change is that as of March 16, 2013, the U.S. moved from a first-to-invent to a first-to-file system, meaning that the first-to-file, not the first-to-invent, is considered to have patentable rights. Inventors who were not the first to file an application may still have prior use rights under certain circumstances. What is the Process for Obtaining a Design Patent? Application filed with and examined by the USPTO Like utility patents, applications for U.S. design patents are filed with the B. Design Patents Can be used to protect novel ornamental designs Particularly useful in certain industries Design patents may be used to protect ornamental appearance of an article of manufacture. A design patent may be granted to any person who has invented any new, original, and ornamental design for an article of manufacture. The ornamental design may be embodied in an entire article or only a portion of an article, or may be ornamentation applied to an article. Design patents generally issue more quickly than utility patents and are less expensive. What is the Scope of a Design Patent? Design patents can protect shape and ornamentation of an object Design patents can protect an entire product or particular aspects of it The scope of a design patent may include the shape and surface ornamentation of an object. However, if the overall appearance of the design is dictated by performance and not appearance, then the design is functional and not entitled to protection. For example, if the shape of a shoe or a cap is dictated by function and is not ornamental, it does not qualify for design patent protection

10 USPTO. After the application is filed, a Patent Examiner examines the application to determine whether the disclosed ornamental appearance is new and unobvious compared to what has previously been done or disclosed by others. Are Design Patents of Any Real Value? Prevent others from practicing the design Injunctive relief as well as damages available to patentee Design patents offer affordable protection and are gaining popularity as consumer goods companies seek to incorporate design into a comprehensive branding strategy. Design patents are common in certain industries where ornamental appearance is particularly representative of the source. How Long Do My Rights Last With a Design Patent? 14 years from issuance When a design patent issues, the patent owner obtains the right to prevent others from using, making, offering for sale, selling, or importing the design without permission for a period of 14 years from the grant date of the design patent. While the patent is enforceable, its owner has the right to recover damages for infringement; including an infringer s profits, lost profits and a reasonable royalty; as well as injunctive relief. to the Supreme Court in the recent Egyptian Goddess case, if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other. Can I Protect My Design Outside the U.S.? International protection available Yes! Like utility patents, comparable international protection is also available for design patents. We work with associates around the world to provide protection under treaties with other countries. 3. Trademarks A trademark is any word, phrase, logo, symbol, design or combination thereof (in rare instances, it can also be a color, configuration, sound or scent), which identifies a product or a service and distinguishes it from other products or services. A trademark can be the name of an individual or company, an invented or arbitrary term, or a phrase which has become associated with a product or service through extended use. Examples of well-known trademarks are Ralph Lauren for clothing, Coca-Cola for carbonated beverages, Mercedes-Benz for automobiles, the McDonalds Arches for restaurant services and the Nike Swoosh for footwear. B. Design Patents How Do I Tell if Someone is Infringing My Design Patent? Ordinary observer test used to determine infringement EXAMPLES OF REGISTRATIONS OBTAINED BY GOTTLIEB, RACKMAN & REISMAN, P.C. The scope of enforcement of a design patent extends to products which are close enough in appearance to deceive an ordinary observer. According 16 17

11 What is the Difference Between a Trademark and a Service Mark? A trademark is any word, phrase, logo, symbol, design or combination thereof that identifies a product (or a service) and distinguishes it from other products (or services). A service mark serves the same purpose as a trademark, except that it identifies and distinguishes the source of a service rather than goods. However, for ease, the term trademark is used to refer to both trademarks and service marks. Trade dress protects the look of a product, its design or packaging, to the extent that it acts as a source identifier. Note, however, that trade dress protection may not be claimed for product features that are functional, or only serve a utilitarian purpose. Examples of designs that have attained trade dress protection include bottles, the shape of buildings and the décor of a restaurant. Federal registration for trade dress is available. Should I Undertake a Trademark Search? 18 A search can identify conflicting uses Owners of trademarks already being used have the right to object to the use of the same or a similar mark covering the same or related goods or services. A comprehensive clearance search conducted prior to adopting and using a trademark can determine whether a conflict with identical or confusingly similar trademarks may arise. A trademark attorney can conduct a search of existing federal trademark registrations and pending applications, trademark registrations in all 50 states (each state maintains its own register of trademarks and service marks), and unregistered common law uses, such as trade directories, business listings, domain names and websites. How Do I Register My Trademark? Application filed with and examined by the USPTO Registration of a trademark in the USPTO is highly desirable. The owner of a trademark may file an application to register its trademark if (a) the mark has actually been used on goods or services in interstate commerce, or (b) the owner has a good faith intent to use ( ITU ) the mark in interstate commerce with respect to specified goods or services. Once filed, an examining attorney reviews the application to determine if the mark conflicts with any other pending application or existing registration. If the Examiner subsequently approves the application, it is published in a weekly publication, the Official Gazette (also available in electronic form), and other parties have 30 days in which to oppose the application. For a use-based application, if no such opposition is filed, or if the differences between the owner and a third party are resolved, the USPTO will issue a Certificate of Registration. An ITU application will receive a Notice of Allowance, which gives the applicant an initial 6-month window in which to use the mark on products or with services in commerce. If the mark cannot be used in that time period, then the applicant can obtain up to five successive 6-month extensions of time within which to use the mark by paying appropriate fees and filing the necessary documents. Once the mark is registered, the registrant s rights in the mark automatically relate back to the date on which the ITU application was filed, even though the mark was not actually used until later. Why Bother Registering My Trademark? Provides Nationwide Protection Provides Constructive Notice Federal registration of a trademark gives the owner valuable procedural and substantive rights. While a common law or unregistered trademark can only be enforced in the geographical areas in which it has been used, a federal registration is enforceable nationwide. Federal registrations are respected by the courts and are more readily protected and enforceable than are unregistered marks. If your company is using a brand name for a product, a product ingredient, a process or a service, federal registration will enhance and preserve that asset and expand 19

12 your scope of protection to cover the entire U.S. Once registered, the trademark becomes part of the Federal Trademark Register, accessible to other interested parties conducting their own searches when adopting a new mark. If they find your registered trademark on the Register and it is too similar to the one that they are seeking to adopt, competent trademark counsel will advise them to choose a different mark. In this manner, a federal registration acts as a barrier to the adoption of a confusingly similar mark. Federal trademark registrations have another advantage in this increasingly online world with a federal trademark registration, a trademark owner can enforce its rights on websites and in domain name matters. Because of the difficulty in verifying a claim of common law rights, it is easier to convince website operators and hosts to stop infringing conduct if a trademark owner has already secured a federal trademark registration. Similarly, when new top level domains are introduced, they usually include a mechanism for protecting trademark rights; often, however, those mechanisms only afford protection to registered trademarks. Another benefit of federal registration is the ability to use the symbol which puts the public on notice that you have been granted a federal right to exclusive ownership and constitutes prima facie evidence of exclusive ownership. What is the Term of a Trademark? 20 A trademark s term is perpetual as long as it is still in commercial use. A federal registration initially is valid for ten years (provided that a maintenance declaration is filed by the sixth anniversary of the registration) and may be renewed indefinitely for further ten-year terms, provided the trademark continues to be used on the goods or services specified in the registration, and provided that the necessary documents and fees are filed. What is Trade Dress and How is it Protected? Protection is available for a look Trade dress protects the non-functional look of a product s design or packaging, to the extent that the look acts as a source identifier. Examples of designs that have attained trade dress protection include bottles, the shape of buildings and the décor of a restaurant. Under trademark law, Federal registration for trade dress is available. How Do I Give Notice of Trademark Rights? Notice given with a symbol attached to a mark The symbol next to a trademark indicates that the owner is making a claim of ownership of that trademark for certain goods while the symbol SM indicates the owner is making a claim of ownership of that trademark for services (however neither symbol necessarily indicates that a trademark application has been filed): Nabisco tm JetBlue sm Once a federal registration is obtained, the symbol, signifying registration, should be substituted for marks covering both goods and services: Nabisco JetBlue What Should I Do if I Think My Trademark or Trade Dress is Being Infringed? Investigate, then consult with intellectual property counsel If you find that a third party is using a trademark identical or confusingly similar to a trademark owned by your company, and it is being used on the same or related goods or services, you should speak to your trademark counsel immediately, who will review the nature of the use 21

13 by the third party, its length of use, the products or services on which it is used, and the geographical markets in which it is being used. If you and your counsel agree that the use by the third party is likely to cause confusion or mistake in the marketplace, then your counsel will usually write a cease and desist letter to the third party. If the matter cannot be resolved, you may then file a lawsuit for trademark infringement in federal court, seeking an injunction against further infringing use, as well as damages and, in certain exceptional cases, attorneys fees. If the infringement is deemed willful, triple damages are also available. Can I Obtain International Trademark Protection? International protection available Yes! Unlike the U.S., most foreign countries require that applications be filed and registrations be obtained before the mark will be protected in that country in other words, mere use of an unregistered mark will not generally afford protection in most foreign countries. In the past, applications had to be filed in each country in which trademark protection was desired (often dependent on where products carrying the trademark were being made or sold). In recent years, however, various international treaties have allowed U.S. registrants to obtain rights in certain foreign countries based on a single international filing. One of the most useful such arrangements is that which is available for the European Community. Based on a system set up in the European Union ( EU ), a central filing can be made in the Community Trademark ( CTM ) Office located in Spain, and when the mark is approved, this registration will be effective in the 27 countries which are currently members of the EU; a CTM registration will automatically be extended to countries which join the EU in future years. Using a different international treaty, U.S. applicants with a U.S. pending application or a U.S. registration may file a single International application for over 80 countries under the Madrid Protocol which is electronically filed with the USPTO. Individual filing fees for selected country still have to be paid and separate examinations take place in each of those countries, just as if separate national applications had been filed, but no local attorney or agent fees for filing the application in a particular country will be incurred. Overall, this centralized filing process saves a considerable time and money and can expedite the filing and registration process for U.S. applicants seeking foreign protection who previously had to file applications in individual countries and incur separate local agent s charges. How Does the U.S. Customs Service Protect Trademarks and Copyrights? Trademark (and copyright) registrations can be recorded by their owners with the U.S. Customs Service, accompanied by a list of authorized importers and licensees. Goods deemed infringing will be detained by Customs Inspectors, and entry into the U.S. will be denied if the importation violates the owner s trademark (or copyright). Customs recordations are relatively inexpensive filings, which should be done routinely to protect intellectual property rights from unauthorized foreign knock-offs entering the U.S. Why Place Your Trademark on a Watching Service? You can protect your trademark from infringement by placing the trademark on a Watching Service. A U.S. Watch is an automatic, on-going search for newly filed, published trademark applications, common law uses as well as Internet domain names which may be identical or confusingly similar to yours. A Worldwide Watch also provides notification of publication of the same or confusingly similar marks internationally. These timely notifications of confusingly similar marks allow for better enforcement of your important trademark rights

14 24 4. Copyrights A copyright protects original works of authorship, including literary, dramatic, musical, artistic and certain other works. Copyright protection is available both for published (e.g., sold or leased) works, as well as for works in unpublished form. Examples of protectable works are books and pamphlets; songs, including their words and music; plays and other dramatic performances, including parodies, comic routines, fictional and non-fictional works, pantomimes and choreographic works; paintings and drawings, both original works and reproductions; textile designs; jewelry and toys with artistic aspects; maps and blueprints; photographs; motion pictures and sound recordings in the form of records, disks and tapes; and computer software. What Rights Does a Copyright Give to the Author? A copyright gives the author exclusive rights to the work The author (or any individual or company to which the author has transferred his rights) is the only entity which may lawfully reproduce the copyrighted work, distribute copies of it, perform the copyrighted work, display it publicly or prepare derivative works based upon the copyrighted work, e.g., prepare a translation of it into a foreign language. These are the Author s exclusive rights which others may not exercise without his permission. The Author of a work owns the Copyright as soon as it is created or fixed. What Rights Does an Employer Have? The employer may be the author of a work created for hire When a work is created on behalf of an employer or an independent contractor, the employer - be a firm, organization, or an individual - may be considered the author when there is a certain relationship between the parties. A work for hire agreement, which clearly states that created intellectual property will belong to the employer, is often used to assure that the employer owns the rights. Absent such a contractual agreement, determining the author can require a detailed, fact specific inquiry. What Does a Copyright Not Cover? Only applies to works fixed in tangible form Copyright protection only encompasses works that have been fixed in a tangible form, so it excludes, for example, a speech that is not written down or recorded. Other examples of works not subject to copyright protection include titles and slogans, ideas, procedures, principles and concepts, works that are purely factual in nature and do not contain artistic expression, conventional geometric figures, and forms such as blank diaries and bookkeeping forms. How Do I Obtain a Copyright Registration? Registrations obtained by filing application with the U.S. Copyright Office Registration is necessary to collect some damages due to infringement Although copyright arises as soon as a work is fixed in a tangible form, it is highly desirable to promptly register a copyright claim with the U.S. Copyright Office. Prompt filing of a copyright application in the Copyright Office establishes a public record of the copyright owner s claim, creates a presumption that the copyright is valid, and enables the owner to claim certain statutory damages and even to recover the attorneys fees expended in asserting the copyright against an infringer. Registration is generally required as a condition for filing any copyright infringement suit in a federal court. 25

15 What is the Term of Copyright Protection? Copyright protection can last 120 years Currently, copyright protection lasts for the life of the author plus 70 years, or where a work is created by an employee and is thus owned by the employer, the copyright term lasts for 95 years from the date of first publication or 120 years from the year of creation, whichever expires first. How Do I Obtain International Copyright Protection? International protection is available evaluate the situation and determine next steps. The work may be identical to or substantially similar to the copyrighted work to improperly appropriate elements of the copyrighted work. What Should a Copyright Notice Look Like? Notice has a specific preferable format The desirable form of copyright notice is as follows: 2013David Smith. The year 2013 would be the year in which the work was first published, e.g., sold, distributed or leased, and David Smith would be the name of the copyright owner. Such notices are widely used on books, magazines, films and videotapes, and even on software programs. Copyright protection is available to U.S. citizens in foreign countries; the U.S. is a member of the Universal Copyright Convention and the Berne Convention, which generally offer reciprocal copyright rights in their respective member countries. In most other countries, there is no need to register a copyright. Is a Copyright Notice Required? Notice is no longer necessary in the U.S. but still is helpful No, but it is still a good idea to place a notice on all copyrighted works, in a location where it can be readily seen. The purpose of the notice is both to notify the public that the copyright is claimed and to prevent an infringer from asserting that he is innocent because he was not aware that the work was the subject of the copyright. How Do I Enforce My Copyright Rights? May be enforced through the courts If a copyright owner becomes aware of an unauthorized use of a copyright, the owner should work with intellectual property counsel to 26 27

16 Who Do I Contact for More Information? Since 1970, Gottlieb, Rackman & Reisman, P.C. has provided legal advice and guidance to clients in all aspects of patent, trademark, copyright and unfair competition law. We practice before the U.S. Patent and Trademark Office, the U.S. Copyright Office, and in federal courts throughout the country. Our practice involves acquisition of intellectual property rights and also enforcement or defense of those rights in the U.S. and throughout the world. Our international practice relies on our long-established relationships with a network of associated counsel in each country of the world. Every client gets our full attention. We tailor our representation to our clients real needs and real budgets, and we make it a point to understand their businesses and to appreciate our clients business goals. We counsel our clients on their intellectual property rights while providing guidance to avoid infringing on the rights of others. If litigation is necessary, we are aggressive, thorough and well-prepared. In today s complex world of business, protection and enforcement of intellectual property assets can be instrumental to the success or failure of a company. Gottlieb, Rackman & Reisman has in-depth technical knowledge as well as the broad experience to meet the expectations of its clients and to protect their important proprietary rights. GOTTLIEB, RACKMAN & REISMAN, P.C. 270 Madison Avenue, 8th Floor New York, New York Tel: (212) Fax: (212) info@grr.com 28

17 270 MADISON AVENUE NEW YORK, NY TEL: FAX: