Ohio State University Extension Fact Sheet

Ohio State University Fact Sheet

Community Development

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Copyrights, Patents, Trademarks

CDFS-1203-95

Small Business Series

Gregory R. Passewitz

A working knowledge of copyrights, patents and trademarks is useful for anyone who operates his or her own business. This factsheet provides definitions and procedural information.

Copyright

A copyright is a form of protection provided by law to authors of original works. Original works can include: literary, musical (including accompanying words), dramatic (including accompanying music), choreographic and pantomime, pictorial, graphic, sculpture, motion pictures and other audio-visual works and sound recordings. In addition, maps, blueprints, patterns, and computer programs may also be copyrighted.

A copyright provides the author the exclusive right to reproduce or sell the work. This protection is available to published and unpublished works when the original has been fixed in a tangible form--written down, recorded or made. Joint authors of works are co-owners of a copyright, unless there is an agreement stating differently.

Certain materials generally cannot be copyrighted. These include standard calendars, height and weight charts, tape measures and rulers, schedules of events taken from common sources, and works consisting entirely of information from common property and containing no original authorship. Unless original subject matter is included, the following cannot be copyrighted: blank forms, account books, score cards, titles, names, slogans, and ingredient lists.

Securing a Copyright

No publication or registration is required to secure a copyright under present law. Prior to 1978, this was not the case. Currently a copyright is secured automatically when the work is created and fixed in copy for the first time. Publication is no longer a key to obtaining statutory copyright. A copyright is claimed when a copyright notice is included on the item. A copyright notice has three elements:

  1. The copyright symbol is a Circle C, ©, or the word copyright or the abbreviation COPR, or the symbol Circle P, P, for photo records.
  2. The year of the first publication.
  3. The name of the copyright owner or abbreviation, for example, John Doe, 1989.

A copyright notice can appear anyplace in or on the work, as long as it can be readily seen.

In writings, it is usually on the first page or two.

To Register a Copyright

Copyright registration is not a condition for protection, but it is usually a prerequisite for an infringement suit. To be registered requires a completed application form, one copy of an unpublished work or two copies of a published work. For more information and registration, write to: Copyright Office, Library of Congress, Washington, D.C. 20559. Telephone 202-479-0700.

Note: Some businesses such as sewing and woodworking use patterns in the making of products. This may be in violation of the copyright law. It is the responsibility of the maker of the product to check to make sure there is no copyright violation. This can be done by checking the pattern or package and/or by writing a letter to the originator of the pattern. Likewise, makers of original patterns should seriously consider obtaining a copyright registration for protection of their pattern.

Length of Protection

A copyright created after January 1, 1978, generally protects the work from reproduction for the author's life, plus 50 years after the author's death. If the work is joint or co-authored, the protection lasts 50 years after the death of the last surviving author. For works for hire, it is 75 years from publication or 100 years from the creation of the work, whichever is shorter. With works copyrighted before January 1, 1978, the original copyright was for a term of 28 years with a renewal term of 47 years for a total of 75 years. For more information, contact the Copyright Office and request Circulars R15A and R15T.

Sources and Information

"Copyright Basics," Copyright Office, Library of Congress. For a list of all materials published by the Copyright Office, write for "Publications of the Copyright Office," Library of Congress, Washington, D.C. 20559.

Patents

A patent is an exclusive property right granted by the Commissioner of Patents and Trademarks, U.S. Department of Commerce. Patents confer to the inventor the right to exclude others from making, using or selling an invention or idea anywhere in the United States or its territories and possessions. The time period for a patent is generally 17 years. Patents cannot be renewed. Design patents generally offer 14 years of protection.

Securing a Patent

The first step in securing a patent begins with the inventor, who writes the idea in detail. This should be done in the context of originality and superiority of your invention to other similar devices. Next, you must determine the "novelty" of the product or processes. Novelty is a critical step in patenting your invention. There are two phases used to determine novelty: 1) analyze the invention according to specific standards; and 2) determine if anyone else has a patent on yours or a similar invention. In analyzing your product or process, you should answer the following questions:

  1. Is my product or process new, useful and an unobvious process, machine, composition of matter or idea; or is it a new, useful and an unobvious improvement?
  2. Is my product or process new, or an unobvious original and/or ornamental design for an article of manufacture, such as a new design for a product?
  3. Is my invention a new or distinct variety of plant other than tubes-propagated, which is asexually reproduced.
  4. Was my idea known or used by others in this country before I thought of it.
  5. Was my idea or invention patented or described in a printed publication in this or a foreign country before I thought of it.
  6. Was my idea or invention described in a printed publication more than one year prior to the date of the application for patent in the United States.
  7. Was my idea or invention in public use or for sale in this country more than one year prior to the date of patent.

Search for Existing Patents

A search of the Patent Office files is necessary to determine if a patent has been granted to an idea or an invention similar to yours. You do not have to personally search the files. Associates at the Patent Office can do this.

Professional Assistance

It is highly recommended that professional assistance be obtained. The process of establishing your patent is difficult and detailed. A patent lawyer or agent can assist you with this effort plus counsel you on a variety of legal and technical issues, including the scope of coverage for your claim.

Application for a Patent

After you have done an initial search and your idea or invention appears patentable, you should submit a patent application. The application is usually, but not always, in the name of the inventor. The application for a patent is made to the Commissioner of Patents and Trademarks, Washington, D.C. 20231. Generally it should include:

  1. A written document that outlines your request for a patent and descriptions and claims (new features of your invention).
  2. A drawing of your invention when possible.
  3. A filing fee.

The construction of your invention, its operation and advantages should be accurately described in the text of your patent request. For exact requirements of a patent application review document, "Title 37, Code of Federal Regulations," which can be obtained from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402.

When the application is received and filed, an examiner reviews the application. If revisions of your application are necessary due to existing similar patents, you will be notified. If no revisions are necessary, a patent may be obtained by a payment fee, plus printing charges. For more information, the Patent and Trademark Office has published a booklet, "General Information Concerning Patents." Copies can be purchased from the U.S. Government Printing Office and bookstores in Ohio by contacting: First Floor Federal Building, 1240 East Ninth Street, Cleveland, Ohio 44114, or Room 207, Federal Building, 200 North High Street, Columbus, Ohio 43215, or write U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C. 20231.

Trademarks and Other Marks

Marks are defined as "any word, name, including brand names, symbols, logos, or device used to distinguish products or services from the goods of others" and are protected by law. The purpose of a mark is to prevent others from selling the product or service on another business or person's established good will. The U.S. Patent and Trademark Office recognizes four types of marks: trademarks, service marks, certification marks, and collective marks.

A trademark is used by a manufacturer or merchant to identify their goods and distinguish them from those manufactured or sold by others. A service mark is associated with services rather than goods. It is similar in intent to the use of a trademark. A certification mark indicates that the marked goods or services meet standards or requirements established by the owner of the mark. For example, Good Housekeeping has a certification mark. A collective mark identifies members of a group such as an organization, union or association.

Selecting a Mark

As with copyrights and patents, a mark must not be the same or similar to another mark already in use. Once you have chosen your mark it should be checked for duplication. For a fee, search services will provide a printed list of marks most similar to the ones you have selected. An attorney, preferably one specializing in marks, should then determine if the selected mark can be used.

Registering the Mark

To be registered, the mark must be used and products bearing the mark must be sold and shipped to a commercial customer. It must be shown that such a mark is identified with a particular product or service and it points directly to the origin or ownership of the product or service. Almost all states have their own trademark law. If a trademark is used entirely within one state, the only protection it has, other than common law, is registration under the state's trademark law. Federal trademark law applies only to marks used in interstate commerce registering the mark.

A mark does not have to be registered. A non-registered mark has common law rights. Official registration, however, provides additional advantages. Registering the mark with a patent and trademark office offers these advantages:

  1. Registration notifies everyone that the mark is claimed by the person registering it. This avoids the problem of proving an infringer knew of the infringement.
  2. A registrant successful in the lawsuit can get an injunction against the infringer, receive payment for damages and be assured of the infringing label's destruction.
  3. Registration is considered sufficient proof in court of the mark's validity and ownership.
  4. The registrant may obtain relief against imported products bearing an infringement trademark.

These are three types of notices that signify a registered mark. These include: 1) registered in U.S. Patent and Trademark Office; 2) Reg. U.S. Patent and TM Office; and 3) a Circle R, ®. Federally registered marks may be renewed for 36-year periods.

More Information

The procedure relating to the registration of the trademarks is given in a pamphlet entitled "General Information Concerning Trademarks," available from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402. For further information, contact the U.S. Department of Commerce Patent and Trademark Office.

Ohio Trademarks and Service Marks

A trademark or service mark used in Ohio may be registered with the Secretary of State by filling out an application. Ohio law requires the applicant to certify that he or she is the owner of the mark and that no other person has the right to use it. The applicant must also certify that no other person has registration of the same or confusingly similar mark in the U.S. Patent Office or that the applicant is the owner of the concurrent registration in the U.S. Patent Office. The cost of registration with the Secretary of State is $20. Ohio trademark or service mark registrations are effective for a term of 10 years. Upon application, within six months prior to the expiration date, a registration may be renewed for an additional 10-year period on payment of a $10 renewal fee. For more information, contact: Secretary of State, Corporations Section, 30 East Broad Street, 14th Floor, Columbus, Ohio 43215. Telephone 614-466-3910.

Sources

Fuell, Thomas. Avoiding Patent, Trademark and Copyright Problems. Small Business Administration, UNICOR Print Plant, Federal Correction Institution, 1992.

Myers, Donald. Introduction To Trademarks and Other Marks. University of Missouri/Rolla, University of Missouri, 1983.

Udell, Gerald. Ideas, Inventions and Innovations. Small Business Administration, UNICOR Print Plant, Federal Correctional Institution, 1992.

United States Department of Commerce, General Information Concerning Patents, U.S. Government Printing Office, Washington, D.C., 1992.


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