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Trademarks and Copyright

There are many sites that will explain the details of trademarks, copyrights and their registration. The intent of this page is to give you an overview so that you can then make informed decisions as to your next steps to protect your intellectual property.

Copyright and Ideas

After reading this page, if you need help with filing a copyright or trademark, we recommend Legal Zoom. For help with intellectual property of all types, visit Legal Zoom and check out their services.

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A basic tenet of copyright law is that ideas are not copyrightable because they are not considered an "expression of an author."

As courts sometimes observe, "ideas are as free as the air." Similarly, concepts, themes and titles are not protected by copyright law. A copyright can protect embellishments upon ideas, however. So while a single word cannot be copyrighted, the particular manner in which a writer organizes words - his craft, his approach - can be protected. While other writers remain free to create work on the same topic, theme or idea, they cannot copy the particular expression of the first writer.

Since one cannot protect an idea under copyright law, a writer who pitches a story idea to another is vulnerable to theft. Fortunately, there is another way to protect ideas. An idea can be the subject of a contract. A writer can protect himself by getting the recipient of an idea to agree to pay for it.

If you are forming a business, the business proposal should be in writing. You should have a page at the beginning of the proposal informing the reader that is it copyrighted and confidential.

If your business is producing any sort of a product that will be sold retail or on Amazon.com the packaging must contain an UPC barcode, or if sold outside of the U.S., an EAN barcode. For more information and the best deal on barcodes visit our Barcode Page.

Copyright

Every work is considered copyrighted by the author. Although you do not have to place the notice on everything, you should place a legal copyright notice on each work of significance. If the work is very important or major, you should file the copyright notice and an example of the work with the U.S. Copyright Office in Washington, D.C.

As mentioned above, titles are not protected by copyright. You may copyright your web site, but that does not protect the URL or name of the website or the name of your business. To protect those names, you must file for and receive a trademark or service mark.

Trademarks

Unlike most web based legal services, Legal Zoom has partner law firms in all states. For help with trademarks of all types, visit Legal Zoom and check out their services.

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Legal Zoom

There are two ways to get a trademark. Everyone is familiar with the U.S. Patent and Trademark Office. A federal trademark protects your mark on a national basis. However, your mark may not qualify for trademark protection or the trademark might be registered by someone else. Further, federal trademarks are registered for specific classes of goods and services. If you need to register the mark in multiple classes it will get expensive. You should also have a qualified trademark attorney in that case.

Another condition of a federal trademark is that it is used in interstate commerce. If you are only a local business, chances are your name is not used in interstate commerce. You can use it on a website, and that qualifies as interstate commerce, but you need to have several examples of its use in interstate commerce.

You are able to file for a federal trademark before the mark is used in interstate commerce on an-intent-to-use basis. If the trademark filing was based on an Intent-to-Use basis, the USPTO trademark attorney will issue a Notice of Allowance about four months after the date of publication. The applicant then has six months from the date of the Notice of Allowance to either (1.) use the mark in commerce and submit a Statement of Use or (2.) request a six-month extension of time to file a Statement of Use. If the Statement of Use is filed and approved, the USPTO trademark attorney will issue a registration certificate.

Prior to publication of your trademark, it will be reviewed by a trademark lawyer from the USPTO. The trademark lawyer from the USPTO may also refuse the mark because he deems the mark to be primarily geographically descriptive, primarily geographically misdescriptive, a generic term, primarily merely a surname (Smith Apples), or a scandalous or immoral trademark. The most common grounds for the trademark lawyer from the USPTO to refuse a trademark registration are likelihood of confusion between the applicant's mark and a previously registered mark or that the mark is merely descriptive in relation to the applicant's goods or services

When you file for a federal trademark it is published for review in the Official Gazette. Small businesses pay no attention to the trademark review but larger companies will have employees, staff counsel or an outside company reviewing trademark applications for them. If they find something that conflicts with one of their marks, they can file objections to the mark. In this case, you will need an attorney qualified to practice before the patent and trademark office.

Oppositions must be filed within 30 days of publication. If there are no objections the trademark will usually be issued in about four months.

USPTO Official Gazette Online

Unlike most web based legal services, Legal Zoom has partner law firms in all states. For help with intellectual property of all types, visit Legal Zoom and check out their services.

Legal Zoom logo, Click Here
Legal Zoom

State Trademarks

The second way to get a trademark is on the state level, in Florida filed with the secretary of state. Your mark is protected in Florida and can be enforced in state courts. Chances are that your main competition is going to be local or state-wide, so a state trademark offers important protection. The state trademark in any particular class costs only $70.00.

State trademark registration usually follows the federal designation of classes of goods and services. A few states have registration fees of only $10 and some are at $30. A few states are notable for having filing fees nearly as much as the federal fee.

Many businesses think that a state trademark is unnecessary if they have or plan to get a federal trademark. This way of thinking is a mistake. Many large corporations have state and federal trademarks. This has a number of benefits. One of them is that you have a choice of forum for enforcing your trademark in court. If your trademark is being violated locally, you could file a civil action in the county court to enforce your mark. In the case of Blue Planet Offices, Inc. for example, to enforce a trademark in U.S. District Court, we would have to file it in Miami and if there were hearings required, we would have a long drive of over 300 miles round-trip each time.

The cost of a state trademark is far less than a federal one and you don't have to worry about classes of goods and services, nor publication and waiting months for it to be issued.

If your business strictly operates within Florida or any other single state you will have difficulty getting a federal trademark, if you can get one at all. One of the big requirements is that the mark is used in INTERSTATE COMMERCE. If you use it only within a single state, it is not used in interstate commerce. Even if you do get it granted, when you have to go to court to enforce it, chances are it might be invalidated if you can not prove how it is used in interstate commerce.

Personally, I would always have state trademarks even if I had federal marks. There are any number of reasons why you might want to stick to the state court in your county rather than going to United States District Court. However, if you do have a federal trademark and the infringement is not local or is widespread involving multiple jurisdictions, then the federal route is the only way to go.

Many businesses operate only locally or within a state but they file for federal trademarks. In a court fight, the opposition is going to try to invalidate that trademark because it is not used in interstate commerce. In fact, I personally had a federal court battle with Ameritech over their "Bell" trademarks (Wisconsin Bell, Illinois Bell, Ohio Bell, etc.) because none of them were ever used in interstate commerce. They also had state trademarks and relied upon those. This is a good example.

Florida State Trademark Search

Incorporate to Protect Your Trademark in Florida

If you have your name protected with a federal trademark, this provides important protection, but does not prevent anyone else from incorporating a company with your name in Florida or any other state. No secretary of state checks federal trademark registrations. If another company is using your name in Florida, and you wanted to then register your company here, the secretary of state would refuse your registration. You would then have to go to court and get a court order, probably after a very expensive trial, to make the other company change their name.

Registering your foreign corporation in Florida, even if you do not plan to operate here until the future, is an economical protective step to help protect your federal trademark in one of our largest and most important states. The registration, annual report fee and registered agent charges are nothing compared to the cost of a civil action.

Everything You Need to Incorporate, Protect and Operate Your Business.
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