Protect Your Intellectual Property with Orlando's Trusted Attorneys.

Intellectual Property is the blossoming of human creativity and intellect! Also known as IP, it encompasses creations of all kinds. Inventions, literary and artistic works, designs, symbols, names, and images and even business processes. There is something important to remember: many of these creations need to be published to the public and/or used in commerce for the protection to apply. Others MUST be kept entirely confidential. Not all creations are equal…but just in classification. Creations are broken into Four areas of Law: Trademark, Copyright, Patent, and Trade Secrets. IP Law is made to incentivize innovation and creativity…by stifling innovation and creativity. I know…seems confusing but consider it a balancing test. Society needs to make people feel comfortable that their creations will be protected but leave enough space for new creators to feel comfortable that they won't have consequences for creating.

So, what does each area protect? 

Trademark: protects brand names, slogans, logos, and images (provided they identify a particular brand: think those spiffy red bottom shoes);

Copyright:  protects original works of authorship such as literature, music, and art, provided that it has been written down in some form;

Patent: protects inventions and improvements to existing inventions, these are very technical in nature;

Trade Secret: protects confidential business information that provides a competitive edge. 

The length and breadth of protection provided by these various areas of IP Law varies both in the U.S. and from Country to Country; However, all the laws around the world share that common goal mentioned above: balancing the interests of innovators and the public interest in fostering an environment where creativity and invention can thrive.    

Here are some qualities that you want in your IP Attorney

1. Detailed knowledge of IP Law: IP Law is a detailed and complex area of law. I like to say that it is engaging in mental gymnastics. As such, there are many decisions that need to be made, and you must have an attorney who is knowledgeable and always learning. For example, did you know that there is a law (36 U.S.C.S. § 220506(c)) which limits the use of the words ““Olympic”, “Olympiad”, “Citius Altius Fortius”, “Paralympic”, “Paralympiad”, “Pan-American”, “Parapan American”, “America Espirito Sport Fraternite”, or any combination of those words.” Thus, if you wanted to trademark Olympic Washers…your application would be denied.

2. Experience: You want an attorney who has actually handled IP Matters. Courtroom experience is always a plus. Ask your Attorney if they have ever done a manual knockout search. Ask how many trademark applications they have completed. How many licensing agreements? There are many factors that contribute to an attorney’s experience.

3. Communication Skills: You IP attorney needs to be able to effectively communicate with you. If they cannot communicate with you, then they might not be able to communicate with the USPTO, or with opposing counsel. You attorney should be able to take the complex legal language and explain it so you know what is happening with your case and all potential outcomes.

4. Strategic Thinking: the IP process is many times a marathon rather than a sprint. Because of that, Your IP attorney should be forward-thinking and provide strategic advice that aligns with your business objectives keeping in mind the legal and commercial; implications of the decisions.

5. Attention to detail: IP work is nuanced and meticulous. Your IP attorney must have a keen eye for detail. There are many forms whether it is drafting an opinion letter, scrutinizing a competitor’s trademarks, or examining the terms of a licensing agreement.

6. Creativity: You need an IP attorney that is as creative as you…both legally and artistically. You should not have to spend extra time explaining to your attorney why your creation is important. I am a creative, I make music, sing, stream, am an entrepreneur, and build gundam models. I understand what you are creating and how important it is to you!

7. Honesty: Whether it is to tell you important information regarding your mark’s strength, the dangers of using someone else’s creation, or eventually a potential mistake, you want an attorney who will be honest and suggest alternative paths.

8. Comfort: Above all else, you should be comfortable with your attorney. There will be many discussions regarding the mark, your business, and your goals. You need to feel comfortable with your attorney because you will confide in them, rely on them, and likely spend a lot of time speaking with them.  The more comfortable you are with your attorney, the better your chances of success.    

No. It is a Trademark. Remember copyrights cover works of authorship…like TV show scripts and songs.

The Lawyer’s answer is it depends! If you are reading this, though, you probably do. If you are starting a new business, you may have unprotected IP…or you may be using someone else’s protected trademark….. so you may want an attorney. If you are in the process of registering a trademark or copyright, there are many things that can slow up your application, or worse, end it. An attorney can help you avoid those issues. IP Licensing and negotiation are another area where an attorney  

The First thing you need to do is contact an IP attorney. As you are doing that, make sure that you document the infringement. It is not what you know, it is what you can prove. Once we have figured out the situation some of the options include sending a cease and desist letter, negotiating a settlement, having a mediation, filing a lawsuit, and then taking action to make sure that your IP is ironclad!

There are many positives to protecting your IP and it is vital for individuals and businesses. Some of the benefits include attracting investments, generating revenue through licensing agreements, creating a competitive edge, ability to commence lawsuits, economic growth,  business expansion, franchisability, consumer trust, and asset diversity.

If you want to spread your brand globally, then you need to worry about global protection. IP such as trademarks and patents do require formal registration and are territorial. This means they are only protected in the countries where they have been registered.

Thankfully, in IP, you can rely on the Madrid Protocol, which allows for the international registration of trademarks in multiple countries through a single application. Patents are truly a national protection, but you can use the patent cooperation treat to somewhat simplify the process. 

Copyrights are a bit different. Thanks to various international treaties, such as the Berne Convention for the Protection of Literary and Artistic Works, member countries recognize copyrights established in other member countries. The Berne Convention has been ratified by most countries worldwide, providing a certain level of international protection automatically.

When your work is created in a Berne Convention member country, it is protected in all other member countries. For instance, if you're a U.S. author and you publish a book in the U.S., your copyright is automatically recognized in all other Berne Convention countries without needing to register your copyright in each one.

Nonetheless, there might be some benefits to registering your copyright in certain jurisdictions.

Proving intellectual property (IP) theft requires demonstrating that your IP rights have been infringed upon and that the alleged infringer has used your protected work without authorization. Here’s a general guide to proving IP theft for different types of intellectual property:

Trademark Infringement:

Valid Trademark: Provide evidence of your trademark registration or, in some jurisdictions, proof that your mark is well-known or has been used in commerce.

Priority: Prove that you were the first to use the trademark in commerce within the geographical area.

Likelihood of Confusion: Show that the infringer’s use of a mark is likely to cause confusion among consumers about the source of the goods or services.

Patent Infringement:

Patent Validity and Ownership: Ensure your patent is valid, enforceable, and that you are the patent owner or have rights to the patent.
Infringement Analysis: Compare the infringer’s product or process with the claims in your patent. Demonstrating that the infringer’s product embodies all elements of at least one claim typically constitutes infringement.

Trade Secret Theft:

Trade Secret Existence: Prove that the information is not generally known or readily ascertainable by others who could profit from its disclosure or use.

Reasonable Measures: Show that you have taken reasonable measures to keep the information secret.

Misappropriation: Provide evidence that the information was acquired by someone else through improper means or that someone used or disclosed the information without your consent.

Of course there are many more steps which is why you should consult with a experienced IP attorney in Central Florida to give you the best shot at winning your case. Protect your brand!

Ok, now this is a little complicated….. but stick with me. It isn’t as bad as it sounds. For trademark purposes, "used in commerce" refers to the use of a trademark in the ordinary course of trade. Again not as easy as that sentence read. In the United States, for instance, the United States Patent and Trademark Office (USPTO) requires that a trademark be used in commerce before it can be registered federally.

So, what constitutes "use in commerce" for different types of goods and services:

Goods (Products):

A trademark is used in commerce on goods when it is placed in any manner on the goods or their containers, the displays associated with the goods, or on the tags or labels affixed to the goods. If the nature of the goods makes such placement impracticable, then documents associated with the goods or their sale must bear the mark. Importantly, the goods must be actually sold or transported in commerce.

Services:

A service mark is used in commerce when it is used or displayed in the sale or advertising of services and the services are actually rendered in commerce. If the services will be provided to interstate or international customers, or if the marketing and rendering of the services cross state or national borders, then the service mark is used in commerce.

"Commerce" is interpreted by the USPTO to mean all commerce that the U.S. Congress may lawfully regulate; this generally includes commerce that crosses state lines or affects interstate commerce. So, for a trademark to be used in commerce, it must be used in a way that has a clear impact on interstate commerce, or it must actually occur in interstate transactions. However, having an impact on interstate commerce can be broad, for example a hotel or rental car service only run in one state will likely still have impacts on interstate commerce.

For online businesses, this requirement has been interpreted to include offering services or goods through a website if the services or goods are available to customers in other states or countries.

In conclusion, "used in commerce" means that the mark is actively being used to market or sell goods or services, and that there is a real commercial transaction, either within a single state that impacts trade between states or directly between states or nations.

As a Creative the 1uplawyer is acutely aware of the challenges and uncertainty. That is Why MC & J Law is prepared to protect your creations be that a brand, a song, or a catchphrase, or a game.

We have experience in the industries and are ready to use that experience with your legal needs!