ASP Advantage 1993/The Association of Shareware Professionals Advantage CD-ROM 1993.iso/files/business/sba93_3a/f209.sbe

Text File | 1993-07-01 | 10KB | 212 lines

@048 CHAP 9

        ┌───────────────────────────────────────────────┐
        │     PROTECTING TRADE NAMES AND TRADEMARKS     │
        └───────────────────────────────────────────────┘

@Q       "Steal only the best." -- Jenkins' Third Law of
@Q        Business Survival and the Reverse Engineers'
@Q        First Principle of Intellectual Property

If you intend to use some type of distinctive trade name
for your business or trademark for your product or in adver-
tising your services, it will usually prove to be advisable
to consider taking steps to protect the use of the name or
mark by registration under state or federal law, or both.
Also, it may be necessary to perform a search (which can be
expensive) to determine whether someone else has already
registered the same or a very similar name or symbol, so
that you will not open yourself up to a lawsuit for in-
fringement.  (You may be able get a large metropolitan
library in your area to do a quick name search for you
through their subscription to a computerized name research
service for only $15 or so--this can be very useful, but
is no substitute for a thorough search by a trademark
attorney.)

Since not every trade name can be registered, you will need
to consult a trademark attorney if you are interested in
protecting a particular name used by your business.  Note
that most small local businesses will have little need for
federally registering their trade name.  But if you have
plans to expand nationally, protecting your trade name at
an early stage can be of critical importance.  Federal reg-
istration of a name confers a number of significant bene-
fits, including the following:

 .  Nationwide notice to others of your exclusive right
    to use the name or mark;

 .  Prima facie evidence of the validity of the registra-
    tion and your exclusive right to use the mark through-
    out the country;

 .  With certain exceptions, registration gives you an
    unquestionable right to use the name or mark;

 .  If you prove in court that someone violated your
    rights under the Trademark Act of 1946, you will be
    entitled to recover their profits from its use and
    damages (in some cases, triple damages);

 .  The right to sue in federal court for trademark in-
    fringement regardless of the amount at stake and whe-
    ther or not there is diversity of citizenship" (i.e.,
    regardless of whether you and the defendant operate
    in the same or different states); and

 .  The right to have customs officials halt importation
    of counterfeit goods using your trademark (such as
    fake "Levi" bluejeans).

        ┌───────────────────────────────────────────────┐
        │       PROTECTING PATENTS AND COPYRIGHTS       │
        └───────────────────────────────────────────────┘

Under our legal system, protection is also afforded for
intellectual property, such as patent rights, if you are
careful to protect your rights.

COPYRIGHTS
──────────

While you cannot copyright an idea as such, you can use the
copyright law to protect the original expression of an
idea, such as a written document, or a computer software
program.  To do so, you have to be sure to place a proper
copyright notice on the item you wish to protect when you
publish it.  The proper form of copyright notice ("the
legend," as copyright lawyers refer to it) should appear as
follows:

              (C) Copyright 1993  John Doe
                  All Rights Reserved

Under U.S. law, you can use the "(C)" (which actually should
be a "c" with a circle around it), OR the word "copyright"
and receive full copyright protection.  However, you will
have trouble enforcing the copyright in some foreign coun-
tries if you leave out the "c" in a circle.  Also, note
that many South American countries require that you add the
statement "All Rights Reserved" in order to make the copy-
right legend valid.  Thus, if you have a copyrightable work
that has potential value outside of the U.S., be sure to
add the "All Rights Reserved" phrase to protect your rights
overseas.  For a work like this program, which is of little
use or value to anyone outside the boundaries of the U.S.,
the "All Rights Reserved" statement probably isn't neces-
sary, although it doesn't hurt to add it.

In addition to using the legend correctly (being sure to
include the year of publication--not the year of creation
-- and the name of the copyright holder), it is important
to file a copyright registration form with the U.S. Copy-
right Office, Washington, DC 20559, on Form TX.  A $20 fil-
ing fee is generally required, which should accompany the
filled-out registration form.  If you are registering a
book or other written publication, you must also enclose 2
copies of it with Form TX, which will become your small
contribution to the Library of Congress' collection.

If you are filing a copyright for a computer program you
have written, the Copyright Office requires you to file a
copy of either the object code (which you should do if your
source code contains trade secrets you don't want to di-
vulge to the world) or of the source code.  If you don't
want to disclose all of the source code for a large prog-
ram, you need only file the first 25 pages and the last 25
pages of the source code (and, if you are a crafty and
secretive sort, you can add a lot of meaningless and use-
less code to the beginning and end of your program, so that
you still don't give away any secrets).  Note that if you
choose to file your object code listing (which will look
like gibberish to the folks at the Copyright Office) in-
stead of source code, they will accept your registration
subject to what is referred to as the "rule of doubt."
The meaning of this scary characterization is that they
can't really examine your code to determine if it is copy-
rightable, so you must also submit a written statement or
cover letter with your application, stating that the mater-
ial submitted is a work of copyrightable authorship.  Also,
in such a case, it is a good idea to arrange it so that on
the first page of the object code listing you submit, your
copyright notice prints out in a form such that the good
people at the Copyright Office can read it.

In general, a copyright is valid for the rest of the life
of the author, plus fifty years thereafter.  However, if
the copyrighted work is a "work for hire" (the author was
hired to create it) or a joint work, the copyright term is
75 years from publication or 100 years from the date of
creation of the work, whichever is shorter.  (17 U.S.C. 302)


PATENTS
───────

Protecting patent rights is a bit more complicated.  As is
the case with copyrights, you cannot patent an idea, no mat-
ter how good or original it may be.  To protect a patent-
able device, process, or design, you will need to actually
invent and construct one widget or whatever the item is --
conceptualizing an interstellar warp drive for spaceships,
or putting drawings or descriptions of such an engine down
on paper generally won't do; you'll have to build one.  In
short, patents are granted to doers, not dreamers.

The type of things you can patent vary widely, including
gadgets, chemical processes, drugs, some computer programs
(very rarely), or even genetically engineered bacteria, ac-
cording to one recent ruling.

Once you have invented something worth protecting with a
patent, you will then need to hire a patent attorney, and
have the attorney file an application for a patent at the
U.S. Patent Office.  Since the Patent Office takes a rather
adversarial position to applications, forcing you to prove
to them that you have a way of doing something that quali-
fies for the 17-year monopoly of patent protection, you
can expect to wait a year or two and spend a lot of money
on legal fees to get your better mousetrap or left-handed
screwdriver patented.  And that is if no one challenges
your patent or claims that it infringes on theirs.

In the U.S., for over two centuries, the person who could
prove that he or she was the first in time to INVENT some-
thing has been granted the right to patent it, even if some-
one else filed for the patent first.  However, this well-
established rule of law is about to change, it appears,
under pressure from most foreign countries to conform to
their patent rules, which protect the first person to FILE
for the patent.  Bills have been introduced recently in
both the House and Senate that would make this revolution-
ary change in U.S. patent law if enacted, so that we, too,
may soon be on a "first to file" basis of granting patents.

If this legislation is adopted, small businesses and lone
wolf inventors, the people who have traditionally been slow-
est to file to protect their ideas, will have to pay much
more attention to filing for a patent at the earliest pos-
sible date, or else risk losing their patent rights.  While
this may create a "race to the Patent Office," as some cri-
tics claim, it will also cut out a lot of litigation be-
tween well-funded giant companies and dirt poor inventors,
over who actually invented something first.  Such a change
in the law may actually benefit small inventors, if they
are diligent about filing quickly, since it's pretty hard
for even the most silver-tongued patent lawyer to make much
of an argument over who was first to file their patent ap-
plication with the Patent Office.

Also, under current law, if an inventor demonstrates the in-
vention in public or places it on sale for more than a year
before filing a patent application for it, the inventor is
no longer eligible to obtain a patent.  Under the proposed
new legislation, this would no longer be the case, a rule
which would tend to protect a lot of legally unsophistica-
ted inventors who unwittingly let a year lapse after they
introduce a product, before they bother to talk to a patent
attorney about patenting it.