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Intellectual property, despite popular opinion, is not the sole playground of software companies and multinational corporations. Small businesses and individuals face greater and greater exposure to potential violation of intellectual property law as our society creates and shares information over the internet more and more quickly. Small business owners face potential liability with every software download, advertisement, and new product they introduce into commerce.
Bowen Law Firm works with our clients to protect their intellectual property and limit exposure to potential lawsuits.
A trademark is any distinctive word, name, symbol, or device that a person or entity uses to distinguish its goods or services from those of its competitors. The owner has the exclusive right to use the mark in its advertising and promotion of its business in the marketplace. At common law, trademarks were created by using them in the course of business and were protected as long as they were in use. The Lanham Act of 1946 offered statutory protection for trademarks so that businesses could be protected from competitors who hoped to confuse the public and dilute the value of the trademark by using substantially similar marks for their own products. A trademark may be registered with the State or Federal government if (1) if it currently used in commerce or (2) if the applicant intends to put the trademark into commerce within six months.
Small business owners must be careful in selecting a name for their business and creation of any designs/logos for their products. Simply checking to see if a name has been registered with the California Secretary of State is insufficient. A business owner should do a thorough search of the United States Patent and Trademark Office to ensure that the mark is not already in use. Business owners can also protect themselves by choosing strong marks which are distinctive. A mark is much easier to protect if it is new to the market and cannot be easily compared to competitors.
Trademark infringement may be remedied with (1) an injudction prohibiting use of the protected trademark, (2) any actual damages caused by the infringing use, (3) profits earned by the infringing party, (4) destruction of the infringing materials, and (5) costs and attorneys fees. These remedies can carry significant weight. For example, if you use a website such as www.partyextreme.com, and list the title of your website and advertising materials as "Partyextreme.com Catering," you may be fairly well protected. However, if another entity has trademarked "Party Extreme," you may face a nasty and expensive legal fight over the use of the name. Not only that, you may be placed in a position where you cannot expand your business as you had planned. If you are considering a trademark, Bowen Law Firm can assist you in navigating the process of selecting a mark and registering it so that your business is protected.
A copyright is an intangible property right granted by federal statute to the creator or originator of literary or artistic works. A copyright is acquired automatically once the work is put in a tangible form, but the protection extends only to the "expression" of the idea, not the underlying idea itself. Copyright protection for authors lasts for the life of the author plus an additional 70 years. For publishers, the copyright protection lasts 95 years from the initial date of publication, or 120 years after creation.
Copyrights may be registerred with the United States Copyright Office. The work does not need to carry a special mark denoting that it has been copyrighted to be protected as an original work.
Copyright violation is remedied with actual damages plus the infringing parties profits or statutory damages. The injured party may also recover attorneys' fees. Copyright infringement also carries criminal penalties including fines and/or imprisonment. However, the Copyright Act allows the "fair use" of copyrighted materials, or portions thereof without paying royalties in specific situations, including (1) criticism, (2) news reporting, (3) educational purposes, and (4) research.
A patent is a grant from the government to an inventor providing the exclusive right to make, sell, and use an invention for a period of twenty years. Designs can also be patented, but they are generally provided only 14 years of protection. After this time, the invention is part of the public domain and anyone can make use of the design or process without compensating the patent holder. Patent infringement carries penalties including monetary damages, including royalties and lost profits, plus attorney fees. If the infringement is intentional, then damages may be tripled. The courts no longer automatically grant permanent injunctions to patent holders who must prove they will suffer an irreparable harm and that the public interest would be disserviced without such an injunction.
Trade secrets are a catch-all category of intellectual property reserved for all other forms of information that provide a business with an advantage over its competitors. A trade secret could be a closely held secret (such as the formulas for Coca-Cola and Kentucky Fried Chicken), lists, patterns, plans, processes, or programs. Unlike the forms of protection listed above, trade secrets have no fixed duration so long as they remain the sole property of the protected party. For this reason, litigation for something as simple as a slip and fall accident may raise serious risks for a company that may be asked to disclose their internal safety protocols, hiring practices, or the customer traffic of specific stores.
Trade secret information could be used by competitors to gain a competitive advantage, so every business must carefully protect all information that belongs to them and them alone. These protections include signed confidentiality agreements signed by every employee who has access to the protected information. In litigation, trade secrets should be protected by a stipulation and order limiting the access and use of any information.
If trade secrets are misappropriated by a competitor or former employee, the injured party may seek monetary damages plus attorneys' fees and costs. The Uniform Trade Secrets Act also allows the injured party to seek recovery of punitive damages if the misappropriation was willful. The Economic Espionage Act of 1996 has also made it a federal crime to steal trade secrets.
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