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Copyright Law & NFTs

May 13, 2022/in Intellectual Property /by taulersmith

The explosion of Bitcoin and other cryptocurrencies has led to interest in related digital assets. Among the most popular – and volatile – of those digital assets are Non-Fungible Tokens, or NFTs. As more and more investors consider NFTs, questions are being asked about the legality of this technology. Specifically, people want to know about copyright law & NFTs. Is it possible to hold a copyright for an NFT? Are you allowed to create derivative copies of your NFT and reproduce it? If an NFT was created from an original work, what are the copyright implications for that original work? This is a murky area of the law that is still developing, and it has implications for a lot of people: NFT buyers, NFT sellers, and pretty much anyone who owns a copyright.

To learn more about NFTs and copyright law, keep reading this blog.

What Are NFTs?

On a superficial level, Non-Fungible Tokens (NFTs) are just digital works of art. Some of the most well-known NFTs are digital copies of original works that exist in the real world, such as paintings, music, collectibles, and even tweets. Other NFTs were created exclusively as digital artworks.

Of course, NFTs are significant for reasons that go beyond art appreciation. NFTs are non-traditional assets with a unique quality to them: they are not interchangeable and cannot be divided. By contrast, a Fungible Token like Bitcoin can be broken down into fractional values, so that the owner of a Bitcoin can sell 50% of it and keep the other 50%. The uniqueness of each NFT is what generates a great deal of interest in them, since they are perceived to be incredibly scarce.

Another interesting aspect of NFTs is that they exist entirely on something known as the blockchain, which is a kind of technology that allows information to be permanently stored on a computer network. When someone purchases an NFT, they are purchasing a link to the Token on the blockchain. NFTs essentially function as certificates of ownership. Importantly, the Tokens are entirely digital, with the transaction records traceable online. In one sense, this makes NFTs similar to both real property and intellectual property in that their ownership history is recorded. Additionally, NFTs and Bitcoin are assets that can be traded on certain digital platforms.

Is an NFT Copyright Protected?

NFTs have been in the news lately because the cryptocurrency market has seen sharp declines in value, with many observers wondering if the bottom has fallen out on the NFT market as well. The fact remains, however, that NFTs still have a great deal of value, especially as some owners look to sell their digital assets. This makes it vital to understand how copyright law might impact NFT owners.

First, anyone who buys an NFT should understand that the sale typically does not involve the copyright for the original work that exists outside the blockchain. That’s because an NFT is a derivate of that real-world work, even if the NFT itself is unique. As set forth by the Copyright Act of 1976, only the copyright holder has the right to reproduce the work, distribute copies of the work, and publicly display or perform the work for commercial benefit. The bottom line is that when you buy an NFT, you don’t own it. You cannot create derivative works and sell copies because doing so will impact the intellectual property rights of the person or entity who holds the copyright to the original work.

Given that many NFTs are based on original works, there is also some question about copyright enforcement. Since only the copyright holder has the authority to use their original work commercially, and since NFTs are by definition “reproductions” made for commercial purposes, the NFT market has created a need for copyright holders to monitor social media platforms, websites, message boards, and other areas of the internet for copyright violations. In some instances, NFT copyright violations are so flagrant that it may be necessary to speak with an attorney about sending a copyright demand letter or DMCA notice to the offending party.

Contact the California Copyright Lawyers at Tauler Smith LLP

If you are an artist, business owner, website operator, or other individual whose copyright has been infringed, the Los Angeles copyright lawyers at Tauler Smith LLP can help you. Our legal team understands federal intellectual property law, and we know how to win these types of disputes. Call 310-590-3927 or submit an online contact form to schedule a free consultation.

The Benefits of Trademark Registration

January 12, 2022/in Intellectual Property /by taulersmith

Trademark protection is extremely important because it ensures that a company’s brand doesn’t get tarnished by misuse, and that customers don’t get outright stolen by a competitor due to unauthorized use. While common law trademark rights afford a certain level of protection since ownership of a mark is established the moment that mark is used, the best way to ensure that your trademark is truly protected in both the short term and the long term is to register it with the U.S. Patent and Trademark Office (USPTO). The benefits of trademark registration are wide-ranging, including the ability to take legal action if someone ever violates your intellectual property rights. Simply put, making sure that your trademark is officially registered can have a significant impact on your company’s bottom line.

To learn more about the advantages of trademark registration, keep reading this blog.

Why Should You Register Your Trademark with the USPTO?

Although you have common law trademark rights the moment you begin using your product or service, there are a number of exclusive rights that come when you formally register your trademark with the USPTO. Some of the most significant benefits of trademark registration include the following:

You get trademark rights in every state and U.S. territory. Regardless of how limited your use may be, official recognition of your mark by the USPTO will give you trademark protection in all 50 states. This could be especially important if a competitor ever infringes on your trademark in a state or region where you don’t normally do business.
You can use the trademark registration symbol. You are not allowed to use the trademark registration symbol ® on your product packaging or any other product-related materials (e.g., a website, advertisements, etc.) until your trademark is registered with the USPTO. When people see this symbol, it can offer immediate credibility because they will know that you have obtained an official trademark. Moreover, the ® symbol can also have the effect of discouraging others from possibly trying to infringe on your trademark because they know that doing so will expose them to liability.
Your trademark will be entered in the USPTO database. The USPTO maintains an online database of all trademarks that have been officially registered in the United States. The database includes information about the trademark, whether the trademark is registered for a good or service, and the date on which the trademark registered. The federal trademark register serves as notice to anyone who might think about violating your trademark, whether the infringement is intentional or unintentional. The USPTO will be able to quickly identify your trademark in the database if anyone ever attempts to register a similar trademark. Additionally, since all marks listed in the database are enforceable, your competitors will know that you can sue them in federal court if they violate your trademark.
You can file a trademark lawsuit in federal court. One of the most important benefits of trademark registration is that you will be able to enforce your trademark with legal action. Although common law trademark rights exist, only a registered trademark holder can file a Lanham Act claim in U.S. district court, which is how you pursue damages when someone violates your trademark. Beyond that, if your case does reach trial, the fact that you have a trademark registration certificate may be sufficient as proof that you own the trademark.
You will have trademark licensing rights. Intellectual property rights can be incredibly valuable, and not just because they are enforceable as a way to ensure brand integrity and maintain your share of the market. When your trademark is registered with the USPTO, it will open up another potential revenue stream by allowing you to sell, license, or otherwise transfer your trademark rights in the future.

Contact the Los Angeles Trademark Lawyers at Tauler Smith LLP

The L.A. trademark attorneys at Tauler Smith LLP have a comprehensive understanding of intellectual property laws, and they are ready to protect your interests in both California state court and federal court. Call us anytime at 310-590-3927 to discuss your trademark case. You can also fill out the online contact form to schedule an initial consultation.

How to Register a Trademark

January 5, 2022/in Intellectual Property /by taulersmith

It isn’t technically necessary to register a trademark in order to get trademark protection because common law trademark rights exist as soon as you create and use a trademarkable feature of your brand. However, many companies still decide to register their trademarks with the U.S. Patent and Trademark Office (USPTO) because doing so comes with several advantages, including the ability to file a lawsuit in federal court if you discover a competitor infringing on your trademark rights.

To learn how to register a trademark and protect your intellectual property rights, keep reading this blog.

What Is the Trademark Registration Process?

Registering a trademark is not a simple matter. For starters, you should expect the trademark filing process to take at least eight (8) months even in the best cases, and up to 18 months if there are delays or legal issues with your application.

There are several stages to the trademark registration process, including the following:

Trademark Clearance Search
Prepare & Submit the Application
Monitor Your Trademark Application Status
Review of the Trademark Application
Publication of Your Trademark
Registration Certificate Issued

Stage #1: Trademark Clearance Search

You must first select a name, design, or other type of mark to be trademarked, and the success or failure of your application for formal trademark recognition will hinge on whether another company already has an existing trademark for a similar name or design. So, before submitting your trademark application to the USPTO, either you or an attorney should perform what is known as a trademark clearance search. By looking through the USPTO trademark database, you can make sure that no one else has already registered a similar trademark before you file your application. The federal trademark register provides information about when a trademark was initially registered, its design, and its product application.

In the event that a trademark already exists for a similar product, the USPTO will likely reject your application. If your application is successful despite the existence of a similar product name or design, you could later find yourself exposed to liability when the other company files a trademark infringement claim against you.

Stage #2: Prepare & Submit the Trademark Application

The USPTO has made it easier to register a trademark by allowing individuals to file their trademark applications online. You can set up a USPTO.gov account on the Trademark Electronic Application System (TEAS). Once your online account has been created, you will be able to file your trademark application. There is a non-refundable application/processing fee of up to $350, as well as additional fees if you need to request more time to show your intent to use the mark. (Assuming your trademark application is ultimately successful, you will then need to pay a filing fee for declaration of use after 5 years, and then a renewal fee every 10 years.)

Stage #3: Monitor Your Trademark Application Status

After submitting your trademark application, it will be your responsibility to keep track of its progress. You’ll be able to do this by using the Trademark Status and Document Retrieval (TSDR) system, which provides easy access to your application and registration information, including the status of any documents that you sent to the USPTO, messages about deadlines for submitting additional documents, and the progress of your application. The system can be accessed 24 hours a day, and logging in requires you to enter either the trademark serial number or the trademark registration number.

You are expected to log in and check your trademark application status at least once every six (6) months, and you should continue checking the status until you’ve received notice that your trademark application was successful. You should also make sure that all personal contact information is correct, including your mailing address and your email address.

Stage #4: Review of the Trademark Application

After you file your trademark application, a review will be assigned to a USPTO examining attorney. The examining attorney will first make sure that your application is compliant with all laws and regulations, and then conduct a thorough search for any conflicting trademarks. At the conclusion of the review, the examining attorney will either accept your trademark or refuse to register your trademark.

If your trademark is rejected, the examining attorney will issue an “office action” via official letter. The office action will provide grounds for the refusal by listing any legal issues that exist with the trademark. If these are minor issues that can be easily remedied, you may be allowed to fix them and still get your trademark approved. You or your attorney will need to respond to the USPTO within six (6) months of receiving the office action. Failure to respond in a timely manner will result in your application being considered “abandoned.”

Stage #5: Publication of Your Trademark

If your trademark application is approved with no objections, the mark will be published in the Trademark Official Gazette (TMOG). This is the official journal of the USPTO, and it is published every week on Tuesday. The publication serves as notice to the public of the existence of your trademark. Once the mark is published in the Trademark Official Gazette, other parties will have just 30 days to take action if they wish to oppose your trademark registration. If an opposition is filed by someone who believes that you are attempting to register a trademark that they already own, the case will go before the USPTO Trademark Trial and Appeal Board (TTAB).

Stage #6: Registration Certificate Issued

After 30 days have passed without objection to your trademark since its publication in the Official Gazette, the registration process will enter the final stage. The issuance of a trademark registration certificate won’t happen quickly, so it is imperative that you continue to monitor your application status online. In many cases, it takes another three (3) months before the USPTO officially registers the mark and sends you a registration certificate. You will then need to file all required maintenance documents (e.g., Declaration of Use, Declaration of Incontestability, etc.) in order to ensure that your registration remains active. This can be done through the online system.

What Happens If Your Trademark Application Is Successful?

At the conclusion of the trademark registration process, the USPTO will issue a decision and either accept or reject your trademark application. If the agency accepts your application and grants your trademark, and there is no subsequent opposition to the trademark after notice is published, you will be able to use the trademark registration symbol ® on your product’s packaging and other materials, which is a good way to deter any possible competitors from attempting to use your trademark.

Once your trademark has been officially registered, the USPTO will enter it in an online database. This will serve as legal notice to everyone in the United States and throughout the world that your trademark is enforceable. If anyone ever violates your trademark rights, you will be able to file a lawsuit in U.S. district court.

Contact the L.A. Trademark Attorneys at Tauler Smith LLP Today

The legal team at Tauler Smith LLP includes Los Angeles intellectual property lawyers who have extensive experience representing both plaintiffs and defendants in trademark disputes. If you received a trademark violation letter, or if you need help protecting your trademark against infringement, we can assist you. Call us today at 310-590-3927 or submit the online contact form to schedule a consultation.

When Can You Use Trademark Symbols?

December 29, 2021/in Intellectual Property /by taulersmith

There are three main symbols to indicate trademark rights: TM, SM, and ®. These symbols often appear as subscript or superscript in a product or service’s marketing materials. If you use one of these symbols, it will indicate that you are claiming trademark ownership. This doesn’t automatically establish your trademark rights since the claim may still need to be litigated in the event of a dispute, but placing a trademark symbol near the relevant word, phrase, logo, or design can still serve as a strong deterrent to any competitors who might want to violate your trademark. The key question is: Exactly when can you use trademark symbols? And what are the differences between the trademark symbols?

To find out when you can use the various trademark symbols on your product packaging, advertising materials, etc., keep reading this blog.

The Benefits of a Trademark Symbol

A trademark symbol can let people know that you are claiming ownership of the trademark. In other words, the trademark symbol is a visual cue to anyone who might be looking at your product, putting them on notice that you hold the trademark. For consumers, the symbol indicates that this particular product is associated with your brand, which can put the consumer at ease that what they are about to purchase is the right product. For competitors, the symbol tells them that this product is off limits if they are thinking about copying it and trying to pass it off as their own, an infringement that not only threatens to take away your customers but can also do serious damage to your brand integrity.

What Do the Trademark Symbols TM, SM, and ® Mean?

There are three different trademark symbols that are commonly used:

TM – This is short for “Trademark,” and it is typically used for goods.
SM – This is short for “Service Mark,” and it applies to services.
® – The R inside a circle signifies that a trademark has been federally registered.

Since you have common law trademark rights the moment you begin using your trademark, you also have a legal right to use the “TM” or “SM” symbols on your product packaging and in ads, depending on whether you want to indicate a trademark (TM) for goods or a service mark (SM) for services. It is only through official registration of your trademark, however, that you can legally use the trademark registration symbol ®.

Restrictions on Use of the Trademark Registration Symbol

It is important to understand that there are certain restrictions on use of the ® symbol, including the following:

The trademark registration symbol can only be used by an officially recognized trademark holder, which means that the mark must be registered with the U.S. Patent and Trademark Office (USPTO). If your trademark application is still pending, you are not allowed to use the registration symbol.
The trademark registration symbol cannot be used for aspects of your brand that are not listed in the federal trademark register. In other words, the particular good or service must, in fact, be officially trademarked and viewable in the USPTO online database.
The trademark registration symbol must be placed near or around the word, slogan, logo, or design that is actually trademarked. It should be clear to the consumer which good or service has been registered.

Contact the California Trademark Attorneys at Tauler Smith LLP

If someone has infringed on your IP rights and you need to enforce a trademark or copyright, having an experienced California intellectual property lawyer on your side can make all the difference. The Los Angeles trademark lawyers at Tauler Smith LLP are here to help you. Call us anytime at 310-590-3927 or submit the contact form to schedule a consultation.

What Is Trade Dress?

December 22, 2021/in Intellectual Property /by taulersmith

If you are a business owner, you may know about the various options you have for protecting your intellectual property rights, such as trademark, copyright, and patent rights. Depending on the nature of your business, another IP right that you might possess is trade dress. What is trade dress? In the broadest terms, trade dress refers to the visual appearance of a product or service, or its packaging, that lets consumers know the product’s source.

To learn more about trade dress, including how it differs from trademark, keep reading this blog.

What Kind of Intellectual Property Right Is Trade Dress?

Trade dress is an intellectual property right that specifically applies to the promotional aspects of a product or service. For example, trade dress would protect the packaging of your product against infringement by a competitor, as long as your packaging is unique and can be clearly distinguished from other kinds of packaging. In addition to product packaging, examples of trade dress for a product might include a product display, or even the design of the product itself. For a service, trade dress can apply to the décor or interior design of a business location or space. (E.g., the look, feel, and ambience of a restaurant chain or theme park.)

Just as with trademark rights, trade dress that has been registered with the U.S. Patent and Trademark Office (USPTO) can be protected in court by having an experienced California trade dress attorney file a Lanham Act claim. Trade dress is also similar to trademark in that there are common law trade dress rights: the use of a particular packaging design or logo is what creates trade dress, regardless of whether it is listed in the federal trademark register. If a competitor violates your trade dress by using packaging or other design aspects that might confuse consumers when it comes to the origin of the product, you may need to take legal action.

When Can Trade Dress Be Protected?

While trademark rights can be both common law and statutory, trade dress is typically a common law IP right. That’s because there are significant restrictions on the types of trade dress that may be recognized by the USPTO, and it can be extremely difficult to get your trade dress listed in the federal trademark register. One of the major advantages of receiving official trademark recognition from the USPTO is that the trademark will be enforceable in U.S. district court if you ever need to file a lawsuit against an infringing competitor, and the same is true for trade dress. That’s why, despite the potential difficulties in receiving approval, it may still be worth it to file a trade dress application with the USPTO.

In order to register your trade dress, certain conditions must be met:

The trade dress must be inherently distinctive, or it must have a secondary meaning.
The trade dress must be non-functional.

What Does “Inherently Distinctive” Mean?

An “inherently distinctive” trade dress is generally one that is novel, unusual, and largely inseparable from the product or service itself. In cases involving trade dress infringements, courts tend to issue more favorable rulings for plaintiffs looking to protect trade dress for services as opposed to products. The United States Supreme Court has ruled that the décor of a restaurant can be inherently distinctive in certain circumstances, whereas product designs alone cannot be inherently distinctive without having acquired uniqueness through advertising and consumer reaction.

If a product’s packaging is found to be similar to the packaging for other products on the market, this doesn’t necessarily doom a trade dress claim to failure. That’s because the plaintiff would still have an opportunity to show that, despite the similar packaging used by other brands, this particular brand’s packaging has acquired a “secondary meaning” among consumers who tend to associate the packaging, design, etc. exclusively with the one brand. For example, the design of the Coca-Cola bottle is shaped in a way that has come to be associated with the Coca-Cola brand. Even if other sodas or beverages use a similarly shaped bottle, consumers instantly connect this particular bottle’s shape to Coca-Cola. This is why Coca-Cola would have a viable claim if a competitor infringed on their trade dress.

Functional vs. Non-Functional Trade Dress

Since trade dress tends to focus more on a product’s packaging than on the actual product, courts have held that trade dress can only be protected legally when it involves visual qualities that are used to market a product or service. Although the Coca-Cola bottle is technically functional in that it contains the beverage being sold to consumers, that’s not the source of the company’s trade dress rights. Since a bottle with a different design and shape could serve the same function, it’s clear that the Coca-Cola bottle was designed primarily for advertising and promotional purposes. This non-functional aspect of the bottle’s design is why it can be afforded trade dress protection.

Contact the Los Angeles Trade Dress Attorneys at Tauler Smith LLP

Whether you’ve received a letter alleging a trade dress violation, or you’ve become aware that someone might be infringing on your trade dress, it is imperative that you speak with a knowledgeable intellectual property attorney as soon as possible. The Los Angeles trade dress lawyers at Tauler Smith LLP represent both plaintiffs and defendants in IP cases, and we are prepared to help you resolve your trade dress case.

To get started, call the Tauler Smith legal team at 310-590-3927 or fill out the online contact form.

Best Defenses to Trademark Infringement Claims

December 15, 2021/in Intellectual Property /by taulersmith

A trademark is supposed to provide protection against infringement by a company that misleadingly uses another company’s slogan, logo, or design to confuse consumers about a product’s origin. But it is sometimes the case that a trademark infringement claim is brought in bad faith by a plaintiff who either misunderstands the law or who is trying to make a quick buck. When this happens, it may be necessary to secure the services of an experienced California intellectual property lawyer who understands IP law and who can offer the best defenses to trademark infringement claims.

To learn more about strong defenses that may be raised in your trademark infringement case, keep reading this blog.

What Defenses Are Available in a Trademark Dispute?

A trademark dispute often arises when one company is accused of interfering with another company’s branding and marketing strategies. If you received notice that your company has infringed on someone else’s trademark, a knowledgeable Los Angeles trademark lawyer can help you explore your best options for contesting the claim.

Some of the most common trademark defenses include the following:

Non-Infringement: When a person or company sells or markets a product, good, or service that has a similar name, logo, or design to another product in the marketplace, it may constitute a violation of the other party’s exclusive trademark rights. If the other party has a registered trademark with the U.S. Patent and Trademark Office (USPTO), that party may then seek to bring an end to the unauthorized use of the trademark by filing a lawsuit. But if the goods or services in dispute are not similar in such a way that they are likely to confuse the average consumer, then you may be able to defend yourself against a trademark infringement claim by asserting that there was no infringement at all.
Fair Use: If a competitor’s use of the mark is likely to cause confusion among consumers, then it could constitute trademark infringement. But there are still limits on exactly what kind of words or designs can be trademarked, and the trademark fair use defense establishes one of those limits. The more generalized or broad a particular use is, the less likely a court is to enforce the trademark. For example, a fruit company with a symbol or design incorporating a red apple may not be able to enforce its trademark, whereas a computer company logo incorporating a multi-colored apple with a piece missing from the side might constitute a violation of Apple’s trademark rights because it is likely to cause confusion between the brands. In other words, any use of a word or symbol that matches that word or symbol’s plain meaning may constitute a fair use, while other uses may not constitute a fair use.
Prior Use: “Prior use” is exactly what it sounds like. Basically, if you can show that you were using the trademark before the other party, then any subsequent use by them would be an infringement on your trademark rights. Since trademark rights are established by actual use, it won’t necessarily matter whether the other party had already registered their trademark.
Different Markets: Even if a particular product is only sold in one state, the product’s trademark is protected in every state across the country. If the products are sold exclusively in certain markets, however, then brand confusion may be unlikely, and the company might find it difficult to enforce the trademark in the other market.
Abandonment: Sometimes, the fact that a trademark was registered isn’t enough to protect it against use by another company. For example, if the trademark registrant has failed to use the trademark for a period of at least three (3) years, this may be considered “abandonment” of the trademark rights. That’s because trademark rights can only be enforced when the trademark is being actively used, and it won’t matter if the abandonment was unintentional. Additionally, a trademark registrant must also vigorously enforce their trademark or risk losing their trademark rights. (Along those same lines, if you are a trademark owner and you wish to protect your rights, you may need to file a trademark renewal application with the USPTO every 10 years.)

Contact the Los Angeles Trademark Lawyers at Tauler Smith LLP

If you’ve been served notice of a trademark violation lawsuit, the skilled Los Angeles trademark attorneys at Tauler Smith LLP can help you raise effective defenses against the infringement claim. Depending on the circumstances, it may be possible to avoid costly legal action by getting the case dismissed early in your favor, or by reaching an agreement with the plaintiff to drop their claim.

Call us today at 310-590-3927 or fill out the firm’s contact form.

Copyright vs. Trademark vs. Patent

October 4, 2021/in Intellectual Property /by taulersmith

“Intellectual property” covers a wide range of business assets, such as books, screenplays, photos, movies, computer software code, inventions, and formulas. Copyrights, trademarks, and patents are the main types of intellectual property. Federal law provides strong protections for the creators of original works, inventors, and licensors of IP rights, but the law is complex. In fact, people often confuse copyright, trademark, and patent because each kind of intellectual property protects creators or licensors against unauthorized use or infringement by others, but they do so in different ways. If you are involved in an intellectual property dispute, you need to have a solid understanding of what the law says with respect to copyright vs. trademark vs. patent.

To learn more about the differences between copyright law, trademark law, and patent law, keep reading this blog.

What’s the Difference Between Copyrights, Trademarks, and Patents?

Intellectual property can be an extremely valuable business asset. That’s why it is important that only the rightful owner of the asset’s IP rights be allowed to exploit the intellectual property for profit, whether that involves selling it or licensing it. The three most common tools used to protect the intellectual property rights of certain types of assets are:

Copyrights

As set forth in the Copyright Act of 1976, copyright protects original creative works like novels, songs, paintings, videos, photographs, drawings, clothing, jewelry, and even websites. Only the copyright holder may copy, sell, perform, or display the work for profit, or license the work to someone else for commercial reproduction, distribution, performance, or display.

When it comes to securing copyright ownership, the original creator of a work technically doesn’t need to do anything to acquire the copyright of that work. But there are a number of benefits only available to those who actually register their copyright with the U.S. Copyright Office. For example, if someone does infringe on your copyright, you will first need to file for copyright registration before you can bring a lawsuit in federal court to enforce your copyright. Additionally, copyright registration will probably make it easier for you to back up your case in court because there will be a public record of the copyright claim: all officially copyrighted works published after 1978 are deposited with the Copyright Office and entered into an online database.

Trademarks

While copyright applies to original works of authorship, a trademark covers unique words, phrases, slogans, symbols, and designs that can be used to identify a good, product, or service. A requirement for a company trademark is that the name or logo being trademarked should distinguish the product or service from any other products or services. For example, the product name for Coca-Cola is trademarked because it stands out from all other soft drinks on the market, and everyone who hears the name knows exactly what it refers to.

Just as with copyright law, a trademark does not actually have to be registered in order to get trademark ownership. Even without registering the trademark, you can still use common law to protect against trademark infringement by competitors who attempt to copy the look of your product and pass it off as their own. Just as with copyright law, however, official registration of your trademark comes with certain advantages, including the ability to file a lawsuit in federal court to enforce your trademark against unauthorized use.

To get trademark protection solely within your home state, or in the state where you conduct business, you must register with that particular state. To get federal trademark protection that crosses state boundaries, you must file a trademark registration application with the United States Patent and Trademark Office (USPTO). Once you’ve registered your trademark, you will be allowed to use the registered trademark symbol (®). Otherwise, you are limited to the common law trademark symbol (™).

Patents

Generally speaking, patent law protects inventors by giving them the exclusive right to make, use, copy, or sell their inventions or discoveries, or to license their inventions to another person or entity. Obtaining a patent can be extremely difficult, and it often requires the assistance of an experienced intellectual property lawyer.

Unlike with copyrights and trademarks, the only way to avail yourself of patent protection is to apply for and be granted a patent by the U.S. Patent and Trademark Office (USPTO), the same agency that handles trademark applications. Absent patent registration, the formula or process used in the invention may be considered a “trade secret.” The main advantage to obtaining a patent is that you can then sue anyone who infringes the patent by using or selling your invention without consent. But patent registration does come with a significant downside: you must publicly disclose the unique process or composition of your product. For certain companies that wish to maintain trade secrecy (e.g., pharmaceutical drug manufacturers), this can present a dilemma.

Contact the California Intellectual Property Lawyers at Tauler Smith LLP

If someone has infringed on your exclusive intellectual property rights, or if you have been accused of violating someone else’s intellectual property rights, your best move is to speak with a knowledgeable IP lawyer immediately. The California intellectual property attorneys at Tauler Smith LLP, with a main office in Los Angeles, are prepared to help you bolster your IP claim or build a strong defense against an accusation of copyright or trademark infringement. Call us now at 310-590-3927 or fill out the online contact form.

Determining Copyright Ownership

October 1, 2021/in Intellectual Property /by taulersmith

When it comes to determining copyright ownership, it helps to understand exactly what a copyright is and who can benefit from a copyright. Copyright is a form of intellectual property that provides the creators of original works of authorship with protection against infringement by competitors or anyone else who is not authorized to use, display, or present the work for profit. The general idea behind copyright protection is that painters, photographers, filmmakers, authors, and other artists will be motivated to continue producing if they know that no one else will be able to steal or otherwise misappropriate their work. Importantly, it is only the author of the work, or a person to whom the author has licensed their IP rights, who can legally claim copyright ownership.

To learn more about how to determine who owns a copyrighted work, keep reading this blog.

Who Owns the Copyright for a Creative Work Generally?

Copyright protection applies to most creative works, including films, book manuscripts, photographs, songs or sound recordings, and even computer software. If you have created one of these types of works, then it will typically be assumed that you are the person who holds the copyright. If you were not the author and you want to have the copyright assigned to you, it is best to do so in writing. That’s because mere possession of a work – even if it is the only copy of that work – is not the same as copyright ownership. In other words, if the author sells you the actual work (e.g., an original book manuscript), that might not be the same thing as selling you the work’s copyright ownership.

The bottom line is that, in the absence of a contract to transfer the copyright, the default rule will usually be that the copyright is owned by the work’s original author or creator.

Who Owns the Copyright for Joint Works?

A joint work is defined as an original work that was created by two or more people. Copyright disputes can arise when a work has more than one author because each of the authors is considered a co-owner of the copyright. This means that each author has the ability to license the copyright, as long as they share the licensing profits with the other copyright owners. It is also possible for joint authors to reach an agreement in advance of publication, or after the fact, to transfer sole ownership of the copyright to a single person.

Copyright Ownership of Works Made for Hire

In certain situations, it’s not the actual author of the work who gets copyright ownership but instead someone else who derives their intellectual property rights from the original author. For example, if the author was an employee who created a work for hire during the course of their job duties, then it is usually the employer who gets copyright ownership and who can profit off the work in the future.

Works Created by Employees

Section 101 of the United States Copyright Act addresses works made for hire. As set forth by the statute, a work that was prepared by an employee acting within the scope of their employment constitutes a work for hire.

Works Created by Non-Employees

What about works created by non-employees, such as independent contractors or freelancers? The federal copyright law stipulates that, in these situations, an employer may be the copyright holder of a work if that work was specifically commissioned for use in one of the following ways:

A contribution to a collective work.
Part of a film, video, or other audiovisual project.
A translation of another work.
A supplement to another work.
A compilation.
An instructional text.
A test or answers to a test.
An atlas.

Keep in mind that even if the work fits into one of the above categories, there should still be a signed agreement between the parties in order for ownership of the copyright to transfer from the original author to the company or other party. The presence, or absence, of a written contract stipulating that the work is, in fact, a work made for hire will go a long way toward determining copyright ownership.

Involved in a Copyright Dispute? Contact the Los Angeles Copyright Lawyers at Tauler Smith LLP

If you are involved in a copyright dispute, the Los Angeles copyright lawyers at Tauler Smith LLP can help you. Our legal team has experience representing clients in intellectual property cases involving copyright infringement, trademark infringement, and other IP claims. Call us now at 310-590-3927 or submit the online contact form.

What Are the Benefits of Copyright Registration?

September 29, 2021/in Intellectual Property /by taulersmith

Copyright protection is a vital part of ensuring that your creative work is not used or appropriated for profit by someone else without express authorization. In fact, one of the reasons that copyright laws exist in the first place is so that authors, musicians, painters, photographers, filmmakers, and others have a financial incentive to create original works of authorship, and so that they don’t have to worry about their hard work being stolen after the fact. One of the best ways to make sure that your work is granted copyright protection and is safeguarded against intellectual property theft is by registering your copyright with the U.S. Copyright Office. Although copyright registration is not technically a requirement for protection under federal copyright law, it is often a very good idea, and it also provides the copyright holder with many advantages.

What are the benefits of copyright registration? Keep reading to find out.

Filing for Copyright Protection with the U.S. Copyright Office

The primary function of the United States Copyright Office is to maintain all of the country’s records of copyright registration. When someone needs to determine whether a particular work has been formally copyrighted, they can search for the work’s chain of title in an online Copyright Catalog on the U.S. Copyright Office website. All copyrighted works published since 1978 are entered in the online database.

If you are the author or owner of a work, you can apply for copyright registration by filling out an application form (called a Certificate of Registration), paying a filing fee, and submitting a copy of the work that will be deposited with the Copyright Office and that will be viewable on the agency’s website. When you file your Certificate of Registration with the Copyright Office, you will need to include certain information on the form:

The title of the work for which you are seeking copyright protection.
Important dates, including the year in which the work was completed and the exact date on which the work was first published.
The country where the work was first published.
The name and address of the person or company who identifies as the copyright claimant.

The copyright application can be submitted online with the Copyright Office, or a paper application can be downloaded from the website and then mailed to the agency. You are allowed to do this at any point after creating the work. Additionally, if you register the copyright before the work has been published, you will not have to re-register the work after publication.

The Advantages of Copyright Registration

Although you can still receive copyright protection even if your original work is not officially registered with the U.S. Copyright Office, it is often a good idea to do so. Copyright registration can provide you with a number of important benefits, including the following:

You are required to register your work with the U.S. Copyright Office before you can bring a copyright lawsuit in federal court. However, you can do this at any time – even after you learn about the copyright infringement.
Copyright registration will create a public record of your copyright claim, which can be important later if there is ever a legal dispute about when the work was first created and by whom.
Early registration (typically within three months of the work first being published) can give you more options when seeking damages later in a copyright lawsuit. For a work that was already registered, you can pursue statutory damages and attorney’s fees if you win your legal action, in addition to actual monetary damages caused by any copyright infringement.
Later registration (within five years of the work’s publication) may create a presumption in your favor if the copyright is ever disputed through litigation. Basically, anything you stated on the Certificate of Registration will be assumed to be true.
Copyright registration will give you an additional tool if a copyright infringer ever attempts to import unauthorized copies of your work from foreign countries. You will need to provide a record of your registration to U.S. Customs and Border Protection.

Responding to Copyright Trolls

Registering your book, screenplay, film, photograph, song, or other work with the United States Copyright Office comes with a number of benefits. Regardless of whether your work is officially registered, however, you can still be targeted by copyright trolls who claim that you do not have a right to use the work. If you have received a copyright cease & desist letter or DMCA takedown notice, you need to speak with a copyright defense lawyer immediately.

Contact the L.A. Copyright Lawyers at Tauler Smith LLP Today

The legal team at Tauler Smith LLP includes Los Angeles IP attorneys who have experience responding to copyright demand letters and dealing with copyright trolls. You can call us anytime at 310-590-3927 to discuss your case. You can also submit the online contact form to schedule a consultation.

How Long Does Copyright Protection Last?

September 27, 2021/in Intellectual Property /by taulersmith

Copyright protection exists to ensure that the creators of original works of authorship, such as movies, photographs, and novels, are able to enjoy the fruits of their labor, so to speak. As set forth by U.S. copyright law, creative artists and authors are generally afforded the exclusive right to profit from their work for a certain period of time. The idea is that people will be motivated to create works that benefit society if they know that they, as well as their descendants, will be able to generate income from the creation, performance, and public display of those works in the future. But how long does copyright protection last? Keep reading this blog to find out.

The U.S. Copyright Act and the Length of Copyright Protection

While the U.S. Constitution gives Congress the power to pass laws that protect copyrights, it is the U.S. Copyright Act of 1976 that sets a time limit for federal copyright protection. According to the statute, the creators of original works of authorship can only have this protection for a certain amount of time before the works enter the public domain and can then be used by anyone. Until that happens, however, only the original author is allowed to sell copies of the work or display the work in public for a profit. When a copyright dispute arises, one of the first questions that almost always gets asked is this: is the work still subject to copyright protection, or has the copyright protection expired?

The precise duration of copyright protection depends on the answers to a number of other questions, including the following:

What type of creative work is it?
When was the work created?
Was the work published? If so, when was it first published?
Were there any copyright renewal procedures for the work that needed to be followed?
Were there multiple authors?
Was it a “work made for hire”?
Do we know the identity of the work’s author, or was the author anonymous?

Copyright Duration for Works Created After 1978

The default rule for any work created after January 1, 1978 is that copyright protection lasts for a period of either 70 years from the date on which the original author died. This is also the length of copyright protection for any work created prior to January 1, 1978, as long as that work was not published or registered until after 1978.

Additionally, the length of copyright can vary according to the answers to the questions listed above.

Type of Creative Work

The term of copyright protection follows the same rules for most types of creative works, including literary works, photographs, and films. However, there are some exceptions. For example, sound recordings were affected by the Music Modernization Act, which was signed into law in 2018. The legislation established date ranges (e.g., 1923-1946, 1947-1956, 1957-1972) with different durations for audio recordings and musical compositions.

Identity of Author

Anonymous works (as well as works where the author used a pseudonym) created after 1978 have a copyright duration of either 120 years from the date when the work was created or 95 years from the date when the work was initially published, whichever expires first. However, the default length of 70 years after the author’s death will apply if, at any point, the author’s identity is revealed through an official registration of the work with the U.S. Copyright Office.

Joint Works

When the work had multiple authors, the copyright lasts for the life of the last surviving author plus an additional 70 years after that author’s death.

Works Made for Hire

Works created by an employee during the course of their employment are subject to different copyright rules because it is the employer who is technically considered the legal author of the work for the purposes of federal copyright law. Works for hire have the same copyright duration as works created anonymously: either 95 years from the date of publication or 120 years from the date of creation.

Copyright Duration for Works Created and Published Before 1978

Things get more complicated for works that were created and published before 1978 because of subsequent intellectual property laws that allowed for automatic copyright renewal. Since these creative works already had federal copyright protection prior to 1978, they are generally subject to the U.S. Copyright Act of 1909 when it comes to calculating the length of copyright protection. The initial term of protection was 27 years from the date of first publication, with copyright protection able to be extended with renewals. These renewals became automatic with the passage of the U.S. Copyright Renewal Act of 1992.

Contact the California Copyright Lawyers at Tauler Smith LLP

Do you want to know how long the copyright will last on your creative work? Do you have another question about your intellectual property rights? The Los Angeles intellectual property attorneys at Tauler Smith LLP can assist you. You can call us anytime at 310-590-3927, or you can fill out the contact form here.