BIZ Economy, Finance & Business
Your Business and Intellectual Property: If You Own It, Protect It by Kevin P. Fitzgibbons
The benefits of registering trademarks and copyrights are substantial and virtually limitless.
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n today’s world, to varying degrees we are all working artists using just the technology at our fingertips. Corporations, entrepreneurs and private individuals can quickly form companies and create literary, visual or auditory works that may evolve into tomorrow’s brands. Within these new formations is intellectual property that may be worth protecting. “Intellectual property” is a work or invention that is the result of creativity whereby the originator may apply for a patent, trademark or copyright. While the patent process is too complex to discuss here, the protections gained through trademarks and copyrights are relatively easy to acquire.
Trademarks
A trademark is a type of intellectual property recognizable in items such as a design, symbol, mark, word, slogan or phrase, and it identifies products or services associated with a company or brand. For example, Nike has three separate trademarks for its symbol (the “swoosh”), slogan (“Just Do It”), and the name Nike. As the registered owner of a trademark, the owner retains rights to use – and prevent others from using – the name or mark. Several years before the late Steve Jobs founded and could trademark “Apple Computer,” the Beatles had formed and trademarked “Apple Corps” as their holding company. In 1978, Apple Corps sued Apple Computer for trademark infringement. The case settled, with Jobs promising that Apple would never get into the music business. In 2003, Jobs broke that promise when Apple introduced iTunes. Five years of costly litigation later, Apple Corps and Apple 46
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Computers settled, and Apple Computer took over all trademarks related to “Apple” and licensed various trademarks back to Apple Corps. You may never start a venture of the magnitude of Apple Corps or Apple Computers, but if you have created a business or service, you can minimize risks by registering your name and other representations as trademarks.
Copyrights
Similar to trademark law, copyright law encourages creativity and innovation, allowing originators to benefit financially for a term of years. Whether writing articles, books or plays; creating music, art, sculpture or photography; or producing computer programs or processes, originators of intellectual property can look to copyright registration for further protection of their rights. Most originators believe a work is automatically copyrighted and protected from acts of infringement the instant the work is completed. They are technically correct; according to the U.S. Copyright Office, the copyright generally originates the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device. However, it would be a mistake to believe that full protection is achieved without taking the action of registering the work. A registered copyright creates a public record of the ownership of the work and, through registration, can prevent misuse of your work. Registering your work proves prima facie that you created the work when you say you did. Without a prior registration, the date of creation can be
contested; with registration, the burden of proof is on the infringer (not you) to demonstrate they created their work before, or independent of, your creation. Should an infringer reproduce aspects of your work without your permission, the court will look to see if the work was registered prior to the infringement. If the work was not registered, the court will limit the infringer’s profits as actual damages. Conversely, if the work was registered, the copyright holder is entitled to statutory damages of up to $150,000 per willful infringement, and the court is authorized to award statutory damages plus the copyright holder’s attorney’s fees and other incidental costs of litigation. The benefits of federally registering trademarks and copyrights are substantial and virtually limitless. If you have created property that has potential value, don’t delay in gaining the protections to which you are legally entitled. To learn more about these benefits and begin the process of protecting your work, contact intellectual property attorney Kevin Fitzgibbons at the Fitzgibbons Law Offices (520-426-3824 or kevin@ fitzgibbonslaw.com). EAR LY SU M M E R 2021
