“Protecting Your Intellectual Property: Easier Than You Think” by Jay Preston
Most people, attorneys included, probably don’t give much thought to protecting their intellectual property through formal registration; intellectual property in this article referring to trademarks and works subject to copyright protection. Whether it is because we don’t think such registration is necessary, isn’t worth it, or are unaware of exactly how to procure it. Given the low cost of registration and the substantial benefits available to registered works and marks it is advisable to register any work or mark that is distributed publicly or that is created with any intention to sell.
The most well known form of intellectual property protection is copyright. This protection extends to material that is authored, original, and fixed in a tangible medium of expression: including books, articles, music, plays, pictures, sculptures, movies, drawings, and a multitude of other material. As of 1978 copyright protection is exclusively a matter of federal law. The protection under federal law attaches immediately once the work is created, registration of the work is not a pre-requisite for protection.
However, registering your copyright and taking steps to insure that others are aware of your authorship of the work provide significant advantages should a dispute arise involving the work. One important step to take is to place a copyright notice on the work itself. This is especially important if you plan to publicly distribute the work. Generally, this notice should include: (1) the word Copyright, the abbreviation “Copr.”, or the symbol ©; (2) the year the work was first published; and (3) the name of the owner of the work. The notice must be displayed so as to give reasonable notice of the claim of copyright, meaning that it should be of sufficient size and clarity to be read by the naked eye. By affixing this notice a defendant in a copyright infringement suit may not claim that his or her infringement was innocent in the hopes of lessening the amount of damages awarded.
Apart from the placement of the copyright notice it is even more important to register the work. The fee charged by the copyright office for registration is thirty five dollars. By registering the work the author or owner creates evidence establishing the validity and ownership of the copyright, is allowed to file suit to enforce the copyright in federal court, and if registered within three months of the work being first published or within one month after learning of the infringement a court may award statutory damages and/or attorney’s fees. The availability of statutory damages, as opposed to actual damages, is important as proving actual damages, usually profits lost as result of the infringement, in a copyright case is often difficult and uncertain.
Protection is also available for trademarks and service marks. A trademark being a name or symbol that distinguishes goods made or sold by a business, and a service mark being the equivalent for a business that offers services as opposed to goods. Protection for these marks is available under both Missouri and federal law. The mark will obtain common law protection in Missouri once it is used. “Used” requires that the mark be placed on the good sold or displayed in the sale or advertising of the service in Missouri.
Once “used” in Missouri a mark may be registered with the Missouri Secretary of State, thereby obtaining both common law and statutory protections; the registration fee is fifty dollars. The registration lasts for ten years and may be renewed for a ten dollar fee. A registered mark enjoys several benefits over an unregistered mark. The owner of an unregistered mark is able to file suit to prevent the use of an infringing mark if such mark is likely to cause injury to the owner’s business reputation or dilute the distinctive character of the owner’s mark. If the mark is registered the owner may also seek an award of all profits that were derived from the use of the mark or damages suffered by the wrongful use of the mark. This is in addition to the fact that registration creates evidence of ownership, just as in copyright. A mark may also be registered at the federal level by filing an application with the U.S. Patent and Trademark Office.
Formal registration of a mark or a copyrightable work may not generally come to mind or appear important when the work or mark is first used or created, but the advantages available to registered works and marks are substantial if a conflict involving ownership or use should ever arise. These advantages, weighed against the low cost of registration, require that any business or individual with registrable material give serious consideration to registration.