Intellectual Property

Intellectual property law consists of copyrights, trademarks, patents and trade secrets. The Foster Law Group, PC is fully prepared to assist you in protecting your ideas and business image through registering your copyrights and trademarks, preparing licensing agreements, and drafting other intellectual property related contracts.  The firm however does not deal with patent or trade secret law. 

Copyrights

What works may be Copyrighted?
Literary works, musical works, dramatic works, pantomime, pictorial, graphic, sculptural, motion pictures, sound recordings, architectural works.
Why Register a Copyright?
As soon as a work has been completed it has obtained a copyright.  However in order to enforce your copyright in court you must have registered your work with the United States Copyright Office.  By registering your work you are putting it on record that you are the first and only creator of a certain work.  Having your copyright registered is always a good idea to ensure that your business has the ultimate protection from anybody who may want to infringe upon your work without compensating you. 
What are the Rights of a Copyright Holder?
  1. To reproduce the copyrighted work in copies or phonorecords.
  2. To prepare derivative works based on the copyrighted work.
  3. To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
  4. To perform the copyrighted work publicly; and
  5. To display the copyrighted work publicly. 
  6. To perform the copyrighted work publicly by means of a digital audio transmission.
How long do Copyrights last?
  • For works created on or after Jan 1, 1978
  • General- life of author + 70 years.
  • Joint Works - last surviving author +70 years.
  • Works for Hire - 95 years from first publication; or 120 years from its creation; whichever comes first.

Trademarks

What is a Trademark
Section 45 of the Lanham Act defines the term "trademark" to include any word, name symbol, or device, or any combination thereof used (or with intent to use) by a person in commerce to identify and distinguish goods from those sold by others while indicating the source of the goods.
Why Register a Trademark?
Although it is true that a person or company may obtain rights to a trademark from use, registering a trademark with the United States Patent Trademark Office (USPTO) allows for a trademark to gain rights nationally rather than only locally in the jurisdiction where the trademark is being used. This allows for your company to be protected against anybody else who may want to use your company's name, image or likeness for profit, not matter their location.

Should I register a trademark if I only use the trademark in one state?

If a product will only be sold locally within a state and have no effect on interstate commerce, it will not be possible to apply for a federal trademark mark registration. Generally, a mark cannot be registered at the state level unless and until that mark has actually been used in connection with the sale of goods or services.  While a state trademark registration is relatively inexpensive and easy to obtain, depending on the evidentiary effect each state allots to its own registrations, the protection offered by obtaining the registration is limited.  Registering a trademark on the state level provides notice to the public that you are the registered owner of the trademark in the community in which your business operates.  If your trademark is infringed upon in your local community you may peruse common law rights against any infringer but are only limited to the area in which your business is conducted. 

How Does the Trademark Registration Process Work?

Trademark registration is a process that includes several phases in order to best protect your intellectual property. 

The first phase is the trademark search phase.  Before adopting, using and attempting to register a trademark, it is advisable to make a search of the federal and state trademark registrations, and common law rights in unregistered trademarks and trade names to determine if there are any prior conflicting rights. However, it should be noted that even the broadest search cannot guarantee that there would not be a conflict, particularly where others have common law rights which have not been registered.  From the search results it will be determined whether you have a strong or weak trademark and whether you should proceed in registering your chosen trademark. 

The second phase of trademark registration is the preparation and filing of the trademark application.  Two different types of trademark applications may be filed depending on whether or not the client has actually used the mark in interstate commerce.  An "intent to use" application is based on the client's bona fide intent to use the mark in the near future.  An "in use" application is based on the client's actual use in the United States in interstate or international commerce. A trademark must be registered in a particular class that encompasses goods or services of a particular type and the trademark.  Additionally a trademark may be registered in several classes for the best protection if applicable. 

The third phase is the trademark prosecution and negotiation phase.  Once a trademark application has been filed, it is assigned to a Trademark Examiner. The Examiner will perform a search of active marks in the records of the United States Patent and Trademark Office to determine if your mark is entitled to registration.  Some trademark applications are allowed by the Examiner on the first pass while some are rejected by the Examiner, and require additional work to continue prosecution. 

The fourth phase of filing statements of use, intent to use applications or requests for extension of time may or may not be required.  For a trademark application based on intent to use the mark, additional paperwork will be required to show use of the mark in commerce or to request an extension of time.

The fifth phase is the publication for opposition and registration phase.  Once a mark is approved for registration and actual use in interstate commerce is claimed to the satisfaction of the Examiner, the Examiner issues a Notice of Publication that indicates the date on which the mark will be published in the Trademark Gazette.  Any parties that feel they may be harmed if your mark is registered may file an opposition to your registration within 30 days of publication.  If no opposition is filed, your mark will be registered, and a Certificate of Registration will be issued by the United States Patent and Trademark Office.

The sixth phase is the trademark renewal phase.  A trademark is valid for ten years from the date of registration, assuming all requirements have been met which include filing an affidavit of continued use at the end of 6 years following the date of registration. Trademarks may be renewed for subsequent 10 year terms. 

What types of Trademarks are Available?
There are several types of trademarks that one may register such as:
  1. Arbitrary Marks:
    When the trademark has no relation to the use for the mark.
    Examples: Apple, arbitrary as applied to a computer. Geographical mark if consumers don't associate product with geography.
  2. Fanciful Marks:
    Made up marks that don't mean anything by themselves.
    Examples: Kodak, Exxon, Xerox
  3. Suggestive Marks:
    Words that suggest what the products are.
    Examples: Krispy Kreme, Coppertone, Tide
  4. Product Packaging and Trade Dress

We are confident to say that we have the most affordable pricing in the Denver area. Call (303) 297-7729 today to schedule a free initial consultation and discuss your options with our intellectual property attorneys.

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