Frequently asked questions

Copyrights protect "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible, so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings; and
8. architectural works.

These categories should be viewed quite broadly: for example, computer programs and most "compilations" may be registered as "literary works;" maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."

Several categories of material are generally not eligible for statutory copyright protection. These include among other categories, works that have not been fixed in a tangible form of expression. For example: choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded; titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents; mere ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration; or works consisting entirely of information that is common property and containing no original authorship. For example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources.

Copyrights are Secured Automatically Upon Creation, but Registration Extends Many Benefits

The way in which copyright protection is secured under the present law is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure a copyright. There are, however, certain definite advantages to registration.

Before 1978, statutory copyright was generally secured by the act of publication with notice of copyright, assuming compliance with all other relevant statutory conditions. Works in the public domain on January 1, 1978 (for example, works published without satisfying all conditions for securing statutory copyright under the Copyright Act of 1909) remain in the public domain under the current act. Statutory copyright could also be secured before 1978 by the act of registration in the case of certain unpublished works and works eligible for ad interim copyright. The current Act automatically extends to full term (section 304 sets the term) copyright for all works including those subject to ad interim copyright if ad interim registration has been made on or before June 30, 1978.

Copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a copy or phono-record for the first time. "Copies" are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm.

Publication is an important concept in the copyright law for several reasons: When a work is published, it may bear a notice of copyright to identify the year of publication and the name of the copyright owner and to inform the public that the work is protected by copyright. Works published before March 1, 1989, must bear the notice or risk loss of copyright protection. Works that are published in the United States are subject to mandatory deposit with the Library of Congress. (See discussion on "mandatory deposit".)

For works first published on and after March 1, 1989, use of the copyright notice is optional, though highly recommended. Before March 1, 1989, the use of the notice was mandatory on all published works, and any work first published before that date must bear a notice or risk loss of copyright protection. (The Copyright Office does not take a position on whether works first published with notice before March 1, 1989, and reprinted and distributed on and after March 1, 1989, must bear the copyright notice.)

Use of the notice is recommended because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if the work carries a proper notice, the court will not allow a defendant to claim "innocent infringement"; that is, that he or she did not realize that the work is protected. (A successful innocent infringement claim may result in a reduction in damages that the copyright owner would otherwise receive.) The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with the Copyright Office. The notice for visually perceptible copies of copyright secured material should contain all of the following three elements:

1. The copyright symbol (the letter "C" in a circle, ©), or the word "Copyright," or the abbreviation "Copr."; and
2. The year of first publication of the work; and
3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

NOTE: There are special rules for copyright notice for sound recordings.

A work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation, and is ordinarily given a term enduring for the author's life, plus an additional 50 years after the author's death.

In the case of "a joint work prepared by two or more authors who did not work for hire," the term lasts for 50 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 75 years from publication or 100 years from creation, whichever is shorter.

Works originally created before January 1, 1978, but not published or registered by that date, have been automatically brought under the statute and are now given Federal copyright protection. The duration of copyright in these works will generally be computed in the same way as for works created on or after January 1, 1978: the life-plus-50 or 75/100-year terms will apply to them as well. The law provides that in no case will the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2027. Works Originally Created and Published or Registered Before January 1, 1978 Under the law in effect before 1978, copyright was secured either on the date a work was published or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The current copyright law has extended the renewal term from 28 to 47 years for copyrights that were existing on January 1, 1978, making these works eligible for a total term of protection of 75 years. Public Law 102-307, enacted on June 26, 1992, amended the Copyright Act of 1976 to extend automatically the term of copyrights secured from January 1, 1964, through December 31, 1977 to the further term of 47 years and increased the filing fee from $12 to $20. This fee increase applies to all renewal applications filed on or after June 29, 1992. P.L. 102-307 makes renewal registration optional. There is no need to make the renewal filing in order to extend the original 28-year copyright term to the full 75 years. However, some benefits accrue to making a renewal registration during the 28th year of the original term.

For more detailed information on the copyright term, write to the Copyright Office and request Circulars 15, 15a, and 15t.

For information on how to search the Copyright Office records concerning the copyright status of a work, request Circular 22.

Any or all of the exclusive rights, or any subdivision of those rights, of the copyright owner may be transferred; however, the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed (or such owner's duly authorized agent). Transfer of a right on a nonexclusive basis does not require a written agreement. A copyright may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

A copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business. For information about relevant state laws, consult an attorney.

Transfers of copyright are normally made by contract. The Copyright Office does not have or supply any forms for such transfers. However, the law does provide for the recordation in the Copyright Office of transfers of copyright ownership. Although recordation is not required to make a valid transfer between the parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties. For information on recordation of transfers and other documents related to copyright, request Circular 12.

Termination of transfers under the previous law, the copyright in a work may revert to the author, if living, or if the author was not living, to other specified beneficiaries, provided a renewal claim was registered in the 28th year of the original term. [The copyright in works eligible for renewal on or after June 26, 1992, will vest in the name of the renewal claimant on the effective date of any renewal registration made during the 28th year of the original term. Otherwise, the renewal copyright will vest in the party entitled to claim renewal as of December 31st of the 28th year.]

The present law drops the renewal feature except for works already in the first term of statutory protection when the present law took effect. Instead, the present law permits termination of a grant of rights after 35 years under certain conditions by serving written notice on the transferee within specified time limits. For works already under statutory copyright protection before 1978, the present law provides a similar right of termination covering the newly added years that extended the former maximum term of the copyright from 56 to 75 years.

For further information, request Circulars 15a and 15t.

There is no such thing as an "international copyright" that will automatically protect an author's writings throughout the entire world.

Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions. (For a list of countries which maintain copyright relations with the United States, request Circular 38a.) The United States belongs to both global, multilateral copyright treaties: the Universal Copyright Convention (UCC) and the Berne Convention for the Protection of Literary and Artistic Works.

Generally, a work by a national or domiciliary of a country that is a member of the UCC or a work first published in a UCC country may claim protection under the UCC. If the work bears the notice of copyright in the form and position specified by the UCC, this notice will satisfy and substitute for any other formalities a UCC member country would otherwise impose as a condition of copyright. A UCC notice should consist of the symbol accompanied by the name of the copyright proprietor and the year of first publication of the work.

By joining the Berne Convention on March 1, 1989, the United States gained protection for its authors in all member nations of the Berne Union with which the United States formerly had either no copyright relations or had bilateral treaty arrangements. Members of the Berne Union agree to a certain minimum level of copyright protection and agree to treat nationals of other member countries like their own nationals for purposes of copyright. A work first published in the United States or another Berne Union country (or first published in a non-Berne country, followed by publication within 30 days in a Berne Union country) is eligible for protection in all Berne member countries. There are no special requirements.

For information on the legislation implementing the Berne Convention, request Circular 93 from the Copyright Office. An author who wishes protection for his or her work in a particular country should first find out the extent of protection of foreign works in that country. If possible, this should be done before the work is published anywhere, since protection may often depend on the facts existing at the time of first publication. If the country in which protection is sought is a party to one of the international copyright conventions, the work may generally be protected by complying with the conditions of the convention. Even if the work cannot be brought under an international convention, protection under the specific provisions of the country's national laws may still be possible. Some countries, however, offer little or no copyright protection for foreign works.

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, except in one specific situation*, registration is not a condition of copyright protection. [*Under sections 405 and 406 of the Copyright Act, copyright registration may be required to preserve a copyright on a work first published before March 1, 1989, that would otherwise be invalidated because the copyright notice was omitted from the published copies or phono-records, or the name or year was omitted, or certain errors were made in the year date.]

Even though registration is not generally a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to register:

- Public Notice; and
- If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate; and
- If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions; and
- Copyright registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.

Registration may be made at any time within the life of the copyright.

In General, to register a work, the following elements are required:

1. A properly completed application form;
2. A nonrefundable filing fee of $30* for each application (although the fee can differ in some situations);
3. A non-refundable deposit of the work being registered. The deposit requirements vary in particular situations. (Special deposit requirements exist for certain situations).

To correct an error in a copyright registration information given in the application, file a supplementary registration form "Form CA" with the Copyright Office. The information in a supplementary registration augments but does not supersede that contained in the earlier registration. Note also that a supplementary registration is not a substitute for an original registration, for a renewal registration, or for recording a transfer of ownership.

For further information about supplementary registration, request Circular 8.

Although a copyright registration is not required, the Copyright Act establishes a mandatory deposit requirement for works published in the United States (see definition of "publication," above). In general, the owner of a copyright or the owner of the exclusive right of publication in the work has a legal obligation to deposit in the Copyright Office, within 3 months of publication in the United States, 2 copies (or in the case of sound recordings, 2 phono-records) for the use of the Library of Congress.

Failure to make the deposit can result in fines and other penalties but does not affect copyright protection. Certain categories of works are exempt entirely from the mandatory deposit requirements, and the obligation is reduced for certain other categories.

For further information about mandatory deposit, request Circular 7d.

For works published in the United States, the Copyright Act contains a provision under which a single deposit can be made to satisfy both the deposit requirements for the Library and the registration requirements. In order to have this dual effect, the copies or phono-records must be accompanied by the prescribed application and filing fee.

The following persons are legally entitled to submit a copyright application form:

The author. This is either the person who actually created the work, or, if the work was made for hire, the employer or other person for whom the work was prepared, i.e. The copyright claimant. The copyright claimant is defined in Copyright Office regulations as either the author of the work or a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author. This category includes a person or organization who has obtained by contract the right to claim legal title to the copyright in an application for copyright registration.

The owner of exclusive right(s). Under the law, any of the exclusive rights that go to make up a copyright and any subdivision of them can be transferred and owned separately, even though the transfer may be limited in time or place of effect. The term "copyright owner" with respect to any one of the exclusive rights contained in a copyright refers to the owner of that particular right. Any owner of an exclusive right may apply for registration of a claim in the work.

The duly authorized agent of such author, other copyright claimant, or owner of exclusive right(s). Any person authorized to act on behalf of the author, other copyright claimant, or owner of exclusive rights may apply for registration.

For Original Registration:

Form TX: for published and unpublished non-dramatic literary works

Form SE: for serials, works issued or intended to be issued in successive parts bearing numerical or chronological designations and intended to be continued indefinitely (periodicals, newspapers, magazines, annuals, journals, etc.)

Short Form/SE and Form SE/GROUP: specialized SE forms for use when certain requirements are met

Form G/DN: a specialized form to register a complete month's issues of a daily newspaper when certain conditions are met

Form PA: for published and unpublished works of the performing arts (musical and dramatic works, pantomimes and choreographic works, motion pictures and other audiovisual works)

Form VA: for published and unpublished works of the visual arts (pictorial, graphic, including architectural works)

Form SR: for published and unpublished sound recordings For Renewal Registration Form RE: for claims to renewal copyright in works copyrighted under the law in effect through December 31, 1977 (1909 Copyright Act) For Corrections and Amplifications

Form CA: for supplementary registration to correct or amplify information given in the Copyright Office record of an earlier registration For a Group of Contributions to Periodicals

Form GR/CP: an adjunct application to be used for registration of a group of contributions to periodicals in addition to an application

Free application forms are supplied by the Copyright Office.

We recommend using an attorney to handle copyright application filing to ensure that the proper form is used and the proper deposit materials are filed, as well as to ensure that good records are kept of the entire process to use as proof for potential future conflicts.

Requestors may order application forms and circulars at any time by telephoning (202) 707-9100. Orders will be recorded automatically and filled as quickly as possible. Please specify the kind and number of forms you are requesting.

All applications and materials related to copyright registration should be addressed to the Register of Copyrights, Copyright Office, Library of Congress, Washington, D.C. 20559-6000. The application, nonrefundable deposit (copies, phono-records, or identifying material), and nonrefundable filing fee should be mailed in the same package.

Applications and fees received without appropriate copies, phono-records, or identifying material will not be processed and ordinarily will be returned. Unpublished deposits without applications or fees ordinarily will be returned, also. In most cases, published deposits received without applications and fees can be immediately transferred to the collections of the Library of Congress. This practice is in accordance with section 408 of the law, which provides that the published deposit required for the collections of the Library of Congress may be used for registration only if the deposit is "accompanied by the prescribed application and fee...." After the deposit is received and transferred to another service unit of the Library for its collections or other disposition, it is no longer available to the Copyright Office. If you wish to register the work, you must deposit additional copies or phono-records with your application and fee.

All remittances should be in the form of drafts (that is, checks, money orders, or bank drafts) payable to: Register of Copyrights. Do not send cash. Drafts must be redeemable without service or exchange fees through a U. S. institution, must be payable in US dollars, and must be imprinted with American Banking Association routing numbers.

If a check received in payment of the filing fee is returned to the Copyright Office as uncollectible, the Copyright Office will cancel the registration and will notify the remitter. The fee for processing an original, supplementary, or renewal claim is nonrefundable, whether or not copyright registration is ultimately made.

A copyright registration is effective on the date the Copyright Office receives all of the required elements in acceptable form, regardless of how long it then takes to process the application and mail the certificate of registration. The time the Copyright Office requires to process an application varies, depending on the amount of material the Office is receiving and the personnel available.

Keep in mind that it may take a number of days for mailed material to reach the Copyright Office and for the certificate of registration to reach the recipient after being mailed by the Copyright Office. If you are filing an application for copyright registration in the Copyright Office, you will not receive an acknowledgment that your application has been received, but you can expect: a letter or telephone call from a Copyright Office staff member if further information is needed; a certificate of registration to indicate the work has been registered; or if registration cannot be made, a letter explaining why registration has been refused.

If your copyright application needs to be urgently filed, such as in the case of litigation, we can provide hand delivery services in Washington, DC

The records of the US Copyright Office are open for inspection and searching by the public. Moreover, on request, the Copyright Office will search its records at the statutory rate of $20 for each hour or fraction of an hour.

Unfortunately, some but not all copyright records are available online (records after 1978).

For information on searching the Office records concerning the copyright status or ownership of a work, request Circulars 22 and 23.

We also provide copyright search services, please call us for a quote on our copyright search fees.

This information attempts to answer some of the questions that are frequently asked about copyright. For a list of other material published by the Copyright Office, request Circular 2, "Publications on Copyright." Any requests for Copyright Office publications or special questions relating to copyright problems not mentioned should be addressed to the Copyright Office, LM 455, Library of Congress, Washington, DC 20559-6000. To speak to a Copyright Information Specialist, call (202) 707-3000 between 8:30 a.m.-5:00 p.m., Eastern Time, Monday-Friday, except Federal Holidays.

Copyright information, including many of the other circulars mentioned in Circular 1, as well as the latest Copyright Office regulations and announcements, are available via the Internet. http://lcweb.loc.gov/copyright.

The Copyright Public Information Office is also open to the public Monday-Friday, 8:30 a.m. to 5:00 p.m., Eastern Time, except Federal holidays. The office is located in the Library of Congress, Madison Building, Room 401, at 101 Independence Ave., S.E., Washington, DC, near the Capitol South Metro stop. Information Specialists are available to answer questions, provide circulars, and accept applications for registration. Access for disabled Individuals at the front door on Independence Avenue, SE

NOTE: That due to terrorism on 9/11, access to the Library of Congress has been restricted.

A patent is a grant of an exclusive property right by the federal government to the inventor to exclude others from importing, making, using or selling the invention in the U.S. There are three main types of patent:

• Utility patent covers new and useful process, machine, manufacture, or compositions of matter (such as chemical compositions and compounds), or any subsequent new and useful improvement.
• Design patent covers new, original and ornamental design for an article of manufacture, and it is only the ornamental appearance of the article that is protected.
• Plant patent covers a distinct and new variety of plant that has been reproduced asexually. Generally all inventions must be novel, and non-obvious to those skilled in that particular discipline in order to qualify for patent protection. For a utility patent, the invention must also be useful.

A utility patent is now valid for a term of 20 years from the U.S. patent application filing date, while a design patent is valid for a term of 14 years from the date of patent issuance. Generally a patent is not renewable except for extremely rare special circumstances. After the expiration of the patent term, the patent owner loses the exclusive patent rights to the invention.

Only the true original inventor, or his authorized representative such as an assignee or licensee, may file a patent application for the invention.

A patent cannot be obtained on simply an idea or suggestion, without actually putting it into practice. However, in recent years contrary to earlier rulings, the USPTO has accepted computer software and computer programs to be patentable subject matter. Also, since 1998 computer business models were upheld by the Court of Appeals of the Federal Circuit to be patentable subject matter.

The inventor may sell his ownership interest (or title) in the invention to anyone through assignment, and the inventor may receive either a lump sum payment, and/or a royalty payment based on the future sales of the invention by the assignee. Frequently an inventor may want to keep the title to the patent but allow others to use the invention through the grant of a patent license in exchange for a fixed fee or in conjunction with royalty payments. Large companies with significant patent portfolio and/or exposure to patent infringement lawsuits frequently have complicated cross-licensing agreements with other companies. Patent licensing is a complicated matter and it is recommended for an inventor to consult with a professional (such as a registered patent attorney) early on regarding assignments and licensing of the invention.

The mailing address of the U.S. Patent and Trademark Office (USPTO) is:

Commissioner of Patents and Trademarks
Washington, DC 20231

Form more information visit the U.S. Patent and Trademark Office https://www.uspto.gov/

After the inventor has submitted a patent application to the U.S. Patent and Trademark Office (USPTO) the inventor may insert the notice 'patent pending' or 'patent applied for' onto the invention and accompanying material (such as brochures) to inform the public and potential infringers that a patent application for the invention is on file at the USPTO.

No. A U.S. patent is valid only within the United States and if one would like to have patent rights and protection in other countries, the owner will need to file the patent in those countries, which generally is a very expensive process. For example, it is not uncommon for a Japanese patent to issue after four years of prosecution, at a cost of well in excess of $50,000.

In most countries outside the U.S., any public disclosure of the invention (such as public sale or offer to sell, or published in a journal) prior to filing the patent application will render the inventor to forfeit all rights to apply for a patent.

• Generally, in the U.S., there is a grace period of one year from the date of public disclosure whereby the inventor has to file for the application. One of the main reasons for such a one year period is to provide small inventors an opportunity to market the invention to determine whether it is feasible to obtain patent protection.
• However, most other countries do not have such leniency toward small inventors. Therefore, a U.S. inventor who would want to obtain foreign patent should NOT make any public disclosure until the patent application has been filed at the USPTO. It is recommended an inventor consult a registered patent attorney regarding patent application filing requirements and deadlines.
  

A U.S. inventor may file patent application in other countries either after obtaining a foreign filing license from the USPTO, or after six months from the U.S. patent application filing date.

A PCT application is an international application filed under the Patent Cooperation Treaty (the "PCT"). It allows you to designate any or all PCT contracting states and simultaneously seek patent protection in each of a large number of countries.

Advantages of filing a PCT application:

• Allows you to evaluate your chances of protecting your invention before incurring major costs in foreign countries.
• Keeps all of your options open for protecting your invention while still investigating its commercial possibilities abroad. Usually gives you an extra 18 months more in which to file in designated foreign Offices.
• Obtains more reliable patents abroad.
• Basic PCT facts - This will take you to the WIPO PCT Web Site (PDF)
• Claiming priority
• PCT contracting states

In an international patent application, you may claim the priority, under the Paris Convention-and to a certain extent within the framework of the World Trade Organization, of an earlier patent application for the same invention, whether it was a national, a regional (for example, European) or an international (PCT) application, for up to 12 months after the filing of that earlier application. If you do not claim priority from an earlier application, the priority date will be the international filing date of the international application (http://www.wipo.org/pct/en/).

• Whether going through the PCT route or directly filing with individual foreign countries, the applicant must fulfill national requirements which differ for each country chosen.
• The process is expensive and fees vary according to each country.
• Timeline:
  
  • Direct: usually must file in a foreign country within one year of the priority filing date. E.g. if a US application is filed on 01/01/2002, the foreign national phase must be entered by 01/01/2003.
  • PCT: must file within 30 months from the priority filing date. This gives the applicant another 18 months to enter foreign national phase.
    
• Most countries require absolute novelty. Therefore, inventors should NOT make any public disclosure of the invention, including offers to sell, until a US application has been filed.

In order to become registered before the USPTO, an attorney or agent must demonstrate that he possesses certain academic credentials in science and engineering, pass a moral character investigation and also pass a very rigorous examination relating to patent laws and patent examination procedures. Only registered patent attorneys and agents may practice before the USPTO on patent matters.

Invention promotion firms generally claim to assist inventors to promote the product and help them find venture capital or manufacturers that have the resources to put the invention into mass production and onto retail store shelves. There are many invention promotion firms that promise inventors special access to independent manufacturers looking for new product. It is recommended for an inventor to obtain clear answers to the following questions before engaging an invention promotion firm:

1. What will be the TOTAL cost of its services?
2. What criteria and system of review does the invention promotion firm use to determine whether an invention is worth pursuing?
3. Who are the firm's invention evaluators and what are their qualifications?
4. What are the names of the manufacturers and/or inventors with whom they have prior working relationships to provide references?
5. What are the firm's success and rejection rates?

It is also recommended that one should investigate the firm before making any commitments, by contacting the local Chamber of Commerce, Better Business Bureau (BBB) , consumer protection agency, or Attorney General Office to learn if these organizations have received prior complaints on this firm.

The U.S. Federal Trade Commission has a booklet designed for consumers and inventors on the subject of Invention Promotion Firms. One may obtain a copy from any of their regional offices, or contact IPLG.

A trademark is any name, logo, shape, color, sound or even smell which is used to send a message to attract potential customers and distinguishes the source of goods from those of others. Any business that uses a name, in advertising or on its web page to attract its customers or identify its goods has entered the realm of trademark law.

Yes. As long as the domain name or web address is used in commerce to identify the source of goods or services. Therefore, by simply reserving the name with a web name registry such as INTERNIC, and posting of a web site, without associating that same name in selling goods and/or services will not be considered sufficient use in commerce for the mark to be registered.

A state trademark registration allows a registrant to enforce his rights against all subsequent users of the name within the state, while a federal trademark is effective throughout the 50 United States. It is recommended that a federal trademark registration be filed if there are sales conducted across state lines or outside the United States.

The most important reason to do a trademark search is to avoid liability from trademark infringement lawsuits. Also, performing a trademark search to identify potential prior users will prevent one from having to change the name later. A trademark search is important because if other companies have been using an identical or similar name in similar goods previously, they may file a trademark infringement lawsuit against you for your use of the mark. They may seek monetary damages such as lost profits, and in some cases even attorney fees and punitive damages. Another reason to conduct a search is to identify any prior registrants and users so that one may determine if the proposed mark is not available. This saves the business owner both time and money. Furthermore, a trademark search opinion from a competent trademark attorney may be used as a defense in a trademark infringement suit, potentially shielding the user from intentional infringement liability that may result in treble damages and plaintiff's attorney fees.

A preliminary scan is a quick, limited search designed to find out whether there are identical and very similar marks. Generally a preliminary scan searches the U.S. federal and the fifty U.S. states trademark registries. A preliminary scan would reveal whether an identical mark has been filed or registered by others. In contrast, a full search will also reveal what trademark professionals commonly refer to as common law usage. Common law usage is name, slogan, etc. used to identify a business in commerce but are not registered in either the federal or state trademark registries. If time is available, then it is strongly recommended that a full search be conducted before filing a trademark application.

A trademark owner with prior rights may require one to cease use of the mark, and potentially sue for monetary damages such as lost profits, and other statutory damages such as attorney fees and triple damages. If one is filing an ITU application, and the use of the mark has not commenced, one may argue that the liability is minimal because without actual use of the mark there are no profits. However various courts have ruled that trademark defendants who intentionally ignored advice of their counsel who recommended a trademark search to search for prior users be conducted were held liable for intentional infringement.

The search performed by the U.S. Patent and Trademark Office (USPTO) is generally limited to marks that are previously filed or registered under the federal registry. Marks that are registered under any of the fifty states' registries, or have earlier common law usage (such as fictitious business names filed with local governments) that may create conflict with the later chosen mark are frequently not revealed. Therefore, it is possible that even after one obtained a federal trademark registration from the USPTO, it may be cancelled in the future when it turns out that a prior entity has been using the same mark for a similar product or service in the same geographic location.

No. In the United States, one can file an Intent-to-Use (or commonly referred to as ITU) trademark application based on one's actual intent to use the mark in the near future.

Normally from 15-28 months, depending on the number of refusals as noted by the examiner, and the number of oppositions filed by third parties after publication. Of course, an opposed mark may take a lot longer depending on the parties' financial resources, merits of the case and the parties' willingness to settle.

A U.S. federal trademark registration is valid for ten years from the registration date in the U.S. The registration is renewable upon payment of renewal fees and satisfying various statutory requirements. For example, failure to file a statement of continued use between the fifth and sixth year after the registration date may result in an abandonment of the mark.

A word mark generally provides the broadest coverage, and prevents others from using the same name on the same products in both non-stylized (block letters mark) or stylized (script or design logo) manner. A design mark prohibits others from using a logo containing similar design elements that may be confusing to potential customers purchasing similar products.

No. This is because, a name, a logo and a slogan are all separate trademarks, and each application is limited to cover only one trademark.

In the U.S., TM (trademark) and SM (service mark) symbols denote that the owner treats the name as a trademark or service mark respectively - they do not represent that the mark is on file at the trademark office. ® symbol denotes that the mark is a U.S. federally registered trademark. Only a mark that has been registered at the USPTO may use the ® symbol. Premature use of the ® symbol is considered deceptive and may result in a mark being refused registration. It is recommended that the TM (or SM) symbol be applied on new names even before an application is filed because this will give notice to the public and establish the owner's intention to treat this name, slogan or logo as a trademark.

Marks used on goods are called trademarks, and marks used to identify services are called service marks. Generally, a trademark for goods appears on the product or on its packaging, while a service mark appears in advertising of the services (such as stationary). Both trademarks and service marks are commonly referred to as trademarks. Frequently, a mark may serve as both a trademark and a service mark.

Some of the most common substantive refusals which a party may encounter are:

• a. Likelihood of Confusion
• b. Mere Descriptiveness
• c. Generic Word
• d. Indefinite Description

In a likelihood of confusion rejection, the examiner has found prior filed or registered marks that are either identical or confusingly similar in the Federal registry. In order to prevail, an applicant must show that the mark is dissimilar, or if the marks are similar, that the respective goods or services in question are too different to be confused.

In a mere descriptiveness rejection, the examiner has found that a mark is descriptive of the product, therefore the applicant should not be allowed exclusive use of the mark. The applicant will then have to prove that recognition by the relevant public or consumer, or "secondary meaning" has been established in this name, i.e. being well known in its industry, through many years of continued sales and through advertising.

In a generic word rejection, the examiner has found that the mark is simply the generic description of the product (instead of the source), and the applicant should be denied rights because the term is simply generic. For example, choosing the name APPLE for the mark of an apple fruit stand would be considered generic. The rationale is that if the applicant is allowed exclusive use of a generic term, then the general public and competitors will not be able to compete effectively because they cannot use the generic term of the product in their name (e.g. Abe's Apple company would not be able to use the word APPLE in its name or to identify the fruit if "apple" had been registered to others for an apple fruit stand.)

In an indefinite description rejection, the examiner has found that the terms used to describe the goods and/or services identifed in the trademark application to be too broad or unclear. Frequently an examiner will attempt to provide more definite terms to assist the applicant. For example, the term "computer software" by itself would be considered indefinite, and a more proper term would be "computer software in the field of business accounting."

The obligations of a trademark owner are many. They include:

1. Maintaining documentation to prove when the mark was first used in commerce.
2. Continue using the trademark properly.
3. Policing the usage of the mark in the marketplace.
4. Filing the required statements in a timely manner and renewing the mark prior to expiration.