A major part of Mr. Capp's practice as a California copyright lawyer relates to copyright, trademark and unfair competition disputes.
Our practice includes the following:
Although not strictly required by law, formally registering a Trademark and/or a copyright provides valuable benefits to the Trademark or copyright owner.
In particular, registration provides powerful advantages to Plaintiffs in copyright and Trademark infringement actions, and at least for copyright holders, is a prerequisite to filing an infringement lawsuit in Federal Court.
Registered copyright owners also benefit from extremely favorable advantages when bringing an infringement action in federal court, including mandatory statutory damages and attorney fee awards.
Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This includes paintings, photographs, poems, books, screenplays, and anything else that could be considered original art. The copyright protects the form of expression rather than the subject matter of the writing.
Copyright Secured Automatically upon Creation
The way in which copyright protection is secured is frequently misunderstood. It is NOT required that the work of art be formally registered with the Copyright Office in Washington D.C..
Copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a copy or phonorecord for the first time. "Copies" are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. "Phonorecords" are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the "work") can be fixed in sheet music (" copies") or in phonograph disks ("phonorecords"), or both.
If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.
Even though registration is not a requirement for protection, the copyright law provides several important advantages to those who register their work with the U.S. Copyright Office. These advantages include the following:
A trademark is any word, name, symbol or device, or any combination thereof, that serves to identify and distinguish the source of one party's goods or services from those of another party. A service mark is the same as a trademark, except that it identifies and distinguishes the source of services rather than goods. In this report, the terms "trademark" and "mark" are intended to refer to both types of marks. Examples of trademarks are Ford, Colgate or Coca Cola
You can establish rights in a mark based on a legitimate use of the mark. As with copyrights, formal registration is not strictly required. However, owning a federal trademark registration on the Principal Register provides several advantages, e.g.
NOTE: In order to gain federal registration the mark must have been used, or intend to be used, in either international or 'interstate' commerce. A trademark that is only used or to be used in one state an not be federally registered. Unlike for copyrights, state trademark registration may be available in such a case.
Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the United States Patent & Trademark Office (USPTO) However, you may use the federal registration symbol "®" only after the USPTO actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.
A trademark infringement action may be brought in either state or federal court. In federal court a federally registered trademark is protected form infringement under the Lanham Act. The owner of a trademark is entitled to the exclusive right to use the mark. This entitlement includes the ability to prevent the use, by unauthorized third parties, of a confusingly similar mark. Marks used by unrelated parties are confusingly similar if, by their use on the same, similar, or related goods or services, the relevant consumer population would think the goods or services come from the same source.
"Confusingly similar" is determined by looking at all the circumstances of the alleged infringement. Crucial to this determination is the nature of the goods or services which the infringer is supplying and the actual marks used.
Trademark and/or copyright infringement normally also constitutes 'passing off' or the act of 'unfair competition' either under Federal or state law. In essence, by using a third party's intellectual property rights the infringing party can often be said to have unfairly competed with the aggrieved party.
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