Cream of the Crop 1/Cream of the Crop 1.iso/BUSINESS/SBA62.ARJ/FSBA.EXE/F209.SBE

Text File | 1992-04-30 | 10KB | 188 lines

@048 CHAP 9

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

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


If you intend to use some type of distinctive trade name for your bus-
iness 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 substi-
tute 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 1992  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 $10 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)


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.  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 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.