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Registration of Copyrights and Trademarks
A copyright protects original works of authorship, including literary, dramatic, musical and artistic works. It is not necessary for a person to register a work with the Copyright Office to have copyright protection. A work is protected when it is created and fixed in tangible form. For example, a writer enjoys copyright protection once his or her ideas are expressed in a written form, such as a manuscript. While not necessary, many people register their works because:
- It creates a public record of their copyright and allows them to have a certificate of registration
- If an owner registers a work within five years of publication, it is considered prima facie evidence that the copyright is valid
- If the owner is successful in a lawsuit over the copyright, registered works may be eligible for statutory damages and attorneys' fees (it is often hard to prove actual damages in infringement cases, so the availability of statutory or automatic damages is important)
A copyright owner may also wish to register because registration is required for works of United States origin before the owner can bring a suit for copyright infringement of such works in federal court. Registration before filing an infringement action is not required for works whose country of origin is not the United States. Registration is a simple process and can even be done electronically. The owner must file a completed application, deposit a copy or copies of the work to be protected and pay a fee. Registration is effective upon receipt by the Copyright Office of all the required materials in acceptable form.
While notice is no longer required by law, it may be helpful for a copyright owner to give notice whether the work is registered or not. Notice informs the general public of a person's copyrights in a work, identifies the owner and shows how long copyright protection lasts. Under 17 U.S.C. §401, the requirements for correct notice are:
- The symbol © (the letter C in a circle), the word "copyright" or the abbreviation "copr."
- The year of first publication of the work
- The name of the owner of the copyright in the work
A trademark protects words, phrases, symbols or designs that identify the source of goods or services. Registration is not required; a person can establish rights in a trademark through use. A person may use the ™ (trademark) designation to alert the public to his or her claim of rights in a mark regardless of whether an application for registration has been filed with the United States Patent and Trademark Office (USPTO). The federal registration symbol "®" can only be used on or in connection with the goods and/or services listed in a federal trademark registration only after the USPTO actually registers the mark.
While federal registration of a trademark is not required, registration does provide some benefits:
- Registration gives the public constructive notice of the registrant's claim of ownership of the mark
- Registration creates a legal presumption that the registrant owns the mark and has the exclusive right to use the mark on or in connection with the goods and/or services listed in the registration
- Registration permits an owner to file a suit over the mark in federal court
- US registration may serve as a basis to obtain registration of the mark in foreign countries
- Registration gives the owner the ability to file the registration with the US Customs Service so that the importation of infringing goods from foreign countries can be prevented
An application for a trademark can be filed electronically with the USPTO using the Trademark Electronic Application System (TEAS). An application must include the applicant's name; a name and address for correspondence; a clear drawing of the mark; a listing of the goods or services; and the filing fee, for at least one class of goods or services. An application that includes all of the required elements is forwarded to an examining attorney, who will review the application and search for conflicting marks. If the examining attorney raises no objections to registration, he or she will approve the mark for publication in the Official Gazette, a USPTO publication. Then the USPTO sends a notice of publication, and any party who thinks it may be hurt by registration of the mark can file an opposition to the registration. If no opposition is filed, or if an opposition is unsuccessful, the USPTO will issue a Certificate of Registration for applications based on use or a Notice of Allowance for intent-to-use applications about twelve weeks after the date the mark was published.
Learn More: Reasons to Contact an Intellectual Property Attorney
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