An author acquires a federal copyright to his work in art and music, including prose, by fixing his/her expression of an idea in a “tangible” medium, be it clay, canvas, recording or paper. Fixed in a tangible medium can also mean any electronic file sitting in temporary memory on a computer.
The enforcement of copyrights is the exclusive province of the federal courts. In order to sue someone for copyright infringement, you must register the copyright with the United States Copyright Office. If you choose not to register your copyright before someone infringes your work, you forego statutory damages that only require the proof of infringement in order to collect. Windy City Trial Group can both register your copyright and litigate the infringement in federal court. And unlike most areas of the law, if you win a copyright case, the judge has discretion to order the infringer to pay your attorneys’ fees.
Trademarks are words, phrases, symbols or designs that identify the source of goods of one party from those of other parties. A service mark is the same as a trademark, except that service marks identify and distinguish the source of a service rather goods.
Rights to a trademark are established by using the mark in commerce. Registration of the mark with the U.S. Patent and Trademark Office is not mandatory. However, registration provides a very important trial advantage to the owner. If you want to sue someone for using the mark without permission, it must be registered in order to collect statutory monetary damages under federal law.
Failure to register does not preclude so-called “common law” rights under state law, but you must prove actual damages from the infringing use instead of collecting statutory damages. As a practical matter, actual damages can be problematic to prove at trial.
Even among lawyers, trade secrets law is an often-neglected area of intellectual property. But tell that to the President of a mid-sized business who just lost his Vice-President of Sales to a competitor along with a detailed list of pricing, margins and buying history of his best customers.
A trade secret is legally defined as any information that has value in the marketplace as a result not being generally known in commerce. When reasonably protected, trade secrets can have more long-term value than a patent. Patents must disclose to the public both the invention and how to create it in exchange for a 20-year monopoly. A trade secret has no such restriction and can last forever if properly protected. The longest running trade secret in commerce today is the formula for Coca-Cola, dating back to the late 1800’s.