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Typical client charges for such a search and
related analysis and opinion is $ 450. A
mark may be registered at the States and Federal level, provided that certain
requirements are satisfied. At the State level, the mark is simply registered
with the Secretary of States and notice must be provided locally.
At the Federal level, applications for
trademark registration are subject to substantive examination in an arcane
administrative proceeding that may span 2-4 years, or more. Registering your
trademark in the Federal System would be done hourly and range from between
$1,000-2,000, plus government fees (filing, publication & registration) of
approximately $ 1000.00 accruing between application filing and mark
registration, depending on the number of different classes of goods and services
for which registration is sought.
Registration at the Federal level requires
actual use or intent to use the mark “in commerce”. Federal registration
provides several desirable benefits, including, among others: nationwide
constructive notice and use; prima facie evidence of validity, ownership and
right of use; Federal jurisdiction; the right to Customs agency enforcement
barring importation of goods bearing infringing marks; treble damages, atty.
fees and other desirable remedies.
Copyright
Copyright protects original works of authorship
fixed in a tangible medium of expression. The law generally requires that the
work embody at least a very minimal amount, or modicum, of creativity, and that
the work be conceptually separable from any utilitarian aspects thereof. Mere
compilations, for example alphabetically arranged directories, have been refused
protection for lack of originality and/or creativity; Hard work, “sweat of the
brow”, alone is insufficient to merit copyright protection.
Statutory works include, among others, literary
works (e.g. poetry, musical lyrics, writings, software, etc.), pictorial,
graphic and sculptural works (e.g. drawings, photos, blue prints, computer
screen displays associated with software, buildings, etc.), and choreographic
works.
The copyright protection afforded software is
generally not very great, since software is inherently utilitarian, but exists
nevertheless. In some cases, software inventions may be eligible for patent
protection in addition to that of copyright, as discussed below.
Original works are protected upon fixation.
Notice, e.g. “© Name, Year, All Rights Reserved”, is not required, but is
recommended. It bars innocent infringement defenses and may deter some copying.
The copyrighted work may also be registered at the Copyright Office.
Registration is generally required for filing an infringement action and
provides enhanced remedies. Copyright registration is therefore recommended for
works having commercial significance.
Trade Secrets And Related Agreements
Trade secret protection is available for any
information having economic value resulting from its not being known generally,
so long as the information is the subject of reasonable efforts to maintain its
secrecy. State law governs trade secrets.
Patents
Utility patent protection is generally
available for useful inventions that are novel and non-obvious. Patent
protection extends generally to articles of manufacture, machines, compositions
of matter, and processes.
Recently, Federal courts have ruled explicitly
that software inventions and business methods or models are not exempt per se
from patent protection, so long as the statutory requirements for patentability
are satisfied. These inventions have nevertheless been protected for some time
under various other guises.
Design patent protection is available for
ornamental designs for articles of manufacture, as opposed to the article
itself. For example, surface indicia on the article, a design for the overall
shape or configuration of the article, and combinations thereof. Design patent
protection has been extended to include computer-generated icons. Designs must
satisfy the novelty and non-obviousness requirements.
Patent protection is the strongest and arguably
the most desirable form of intellectual property protection, where applicable.
For some inventions, however, for example those where the commercial life span
thereof is not more than a couple of years, patent protection may not be as
great, since patents take about two years to obtain. There may nevertheless be
advantages to filing patent applications under these circumstances, since goods
marked with “patent pending” create substantial uncertainty for competitors.
Also, other inventions may be better protected by trade secret, for example some
processes that may not be reverse engineered by mere inspection of the article
produced thereby.
The total cost for a patent is not less than $
7,000 for the simplest of inventions. For example, the minimum cost for
preparation of a simple mechanical patent specification is about $ 3,500, plus
the costs of formal drawings, about $100 per sheet. For individuals and small
businesses, the government costs (filing and issue fees) are approximately $
1,000; the cost is double for entities with more than 500 employees. There are
also attorney fees associated with the procurement of the patent, estimated to
be approximately $ 2,000.
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