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Natural Awakenings Oklahoma

ASK A LAWYER w/ Kevin Steinman

Apr 24, 2022 10:49PM ● By Kevin Steinman

Ask a Lawyer

by Attorney Kevin Steinman

One of the most common questions (mistakes) I see is the confusion between the
differences and distinctions between a trademark, copyright, and patent. Please find
below a short explanation of how each one is distinguished from the others.

Trademark: A trademark can be any word, phrase, symbol, design, or a combination
of these things that identifies your goods or services. It's how customers recognize you
in the marketplace and distinguish you from your competitors. The word “trademark”
can refer to both trademarks and service marks. In short, it’s your “brand” and it’s how
your customers make decisions about whether to buy your product or services.

While it is not required to register your trademark with the US Patent & Trademark
Office (USPTO) there are a myriad of benefits that come with registration. If you intend
to enforce your mark it is a very cost-effective means of protecting your brand and could
save you hundreds of thousands of dollars in the event of litigation. Prior to registration
you should secure an opinion, from an experienced attorney, as to whether the mark
you have chosen is potentially infringing upon another’s mark; whether it functions as a
mark; and whether it can be registered.

Trademarks are governed by both Federal and State laws and suit can be brought in
either venue to enforce them. However, by obtaining a Federal Registration a Registrant
is entitled to a number of “short-cuts” and enhanced damages.

Copyright: First, a human being must have created the work. Selfies taken by a very
talented monkey or paintings by an artistic elephant aren’t eligible. Similarly, a work
produced by a machine without any creative input or intervention from a human author
doesn’t qualify.

Second, the work must be an independently created original work of authorship. This
means that an author can’t copy someone else’s work and claim it as their own. But if
two authors create similar works without ever knowing of the other’s work, copyright
protects both.

Third, a work must possess a minimum degree of creativity to successfully claim
copyright. A basic or routine expression lacking a creative spark, such as a telephone
directory with names and numbers listed alphabetically, is not enough for copyright —
no matter how much effort it took to compile.

And fourth, the work must be fixed in a tangible medium of expression, meaning it has
been captured in a sufficiently permanent medium that can be perceived, reproduced or
communicated for more than a short time. If an individual walks around singing a
spontaneously created song but then doesn’t write it down or record it, copyright can’t
protect it.

In order to bring suit in the USA to enforce a copyright, the work MUST be registered
(or in process of registration) with the US Copyright Office. It is solely a matter of

Federal Law per the US Constitution, and no State Court has jurisdiction over
Copyrights.

Patent: A patent for an invention is the grant of a property right to the inventor, issued by the
United States Patent and Trademark Office. Generally, the term of a new patent is 20
years from the date on which the application for the patent was filed in the United
States. U.S. patent grants are effective only within the United States, U.S. territories,
and U.S. possessions

The right conferred by the patent grant is “the right to exclude others from making,
using, offering for sale, or selling” the invention in the United States or “importing” the
invention into the United States. What is granted is not the right to make, use, offer for
sale, sell or import, but the right to exclude others from making, using, offering for sale,
selling or importing the invention.

There are three types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful
process, machine, article of manufacture, or composition of matter, or any new and
useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and
ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually
reproduces any distinct and new variety of plant.\

To ask questions, or for a free consultation, please contact “The Branding Lawyer” at
[email protected] and check out my simple web page at
www.thebrandinglawyer.com. Please identify yourself as a reader of Natural Awakenings
in your communications.
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