Software of the Month Club 1997 March/Software of the Month Club 1997 March.iso/pc/dos/lg/sba/f209.sbe

Text File | 1996-08-23 | 10.6 KB | 229 lines

@048 CHAP 9

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

If you intend to use some type of distinctive trade name
for your business or trademark for your product or in
advertising 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 infringement.  (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
registration of a name confers a number of significant
benefits, 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 registration
    and your exclusive right to use the mark throughout 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
    infringement regardless of the amount at stake and
    whether 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 1997  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
countries 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
copyright 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
necessary, 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.
Copyright Office, Washington, DC 20559, on Form TX.  A
$20 filing 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 divulge
to the world) or of the source code.  If you don't want to
disclose all of the source code for a large program, 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 useless 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) instead
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 copyrightable, so
you must also submit a written statement or cover letter
with your application, stating that the material 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)

Note that you don't need to have previously registered your
copyright in material you create, to sue someone who infringes
upon (steals or plagiarizes) your work.  However, to sue them,
you will have to do an after-the-fact registration, and you
may have problems proving that you actually were the creator
of the material at the earlier date.  Also, if you have
registered your work when it was first published, before the
infringement occurs, you may be able to win statutory damages
from the offender.  Otherwise, you can only sue for actual,
common law, damages, which may be nominal in many cases.  In
short, don't "economize" by trying to save a $20 registration
fee -- it could cost you a great deal later if you fail to
register your copyright promptly after publication.

For helpful information on copyrights, visit "The Copyright
Site" on the Worldwide Web, at:

                  http://www.benedict.com


PATENTS
───────

Protecting patent rights is a bit more complicated.  As is
the case with copyrights, you cannot patent an idea, no
matter how good or original it may be.  In order to protect
a patentable 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
actually 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,
according 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
qualifies 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
something has been granted the right to patent it, even if
someone 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 revolutionary
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
slowest to file to protect their ideas, will have to pay
much more attention to filing for a patent at the earliest
possible date, or else risk losing their patent rights.
While this may create a "race to the Patent Office," as
some critics claim, it will also cut out a lot of litigation
between 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
application with the Patent Office.

Also, under current law, if an inventor demonstrates the
invention 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 unsophisticated
inventors who unwittingly let a year lapse after they
introduce a product, before they bother to talk to a patent
attorney about patenting it.