US-Marken- und Urheberrecht

Nachfolgend ein kleiner Überblick zum US-Gewerblichen Rechtsschutz, Auszug aus der  September / Oktober 2011 Ausgabe German American Trade, der Mitgliederzeitschrift der Deutsch Amerikanischen Handelskammer (GACC), New York, deren Mitglied NIETZER & HÄUSLER ist.

U.S. Trademark Basics.  Generally speaking, a trademark is something that distinguishes the source of goods or services from that of another. Thus, a trademark can be a company name or logo used on a company website, a distinctive shape or color of a particular good, or anything that uniquely identifies and links a particular good or service to a specific source. The strength and value associated with a trademark depends on the distinctiveness of the mark and the reputation and goodwill established by the busi-ness using that mark.

Two main methods exist for attaining trademark rights in the United States. The first is by using a particular mark in trade or business and the second is by filing an appli-cation in the United States Patent and Trademark Office (“PTO”). Applications can be based on use or a bona fide intent to use the mark in the future. Once an entity adopts a trademark, the letters “TM” should be affixed to the item being trademarked to give notice to others. Once the mark is actually registered, this symbol should be changed to an ®. A registered trademark can be renewed as long as it remains in use and has not become generic or diluted so that it no longer identifies its source.

 

Although not required, it is extremely beneficial to register a trademark with the PTO. The main advantage is that it gives the holder nationwide rights even if the mark is used only in certain areas of the United States. Generally, if a lawsuit is filed against an infringer the registrant can seek damages for lost profits or for damages to its reputation.

Additional steps must be taken to protect a mark internationally, namely, by filing applications in each country of interest. This process has been somewhat streamlined since the United States became a party to the Madrid Protocol, which enables registration for foreign trademark protection in multiple foreign countries (who are signatories to the Protocol) via submission of one application to a central body known as the World Intellectual Property Organization. Notably, to file under the Madrid Protocol applicants must first register in their home country. It is important to consult an expert in international trademarks to determine the most effective manner for a U.S. registrant to enforce its rights in other countries.

U.S. Copyright Basics

Businesses involved in visual arts, software fashion, film and music should be keenly aware of copy- right issues. A copyright attaches to any “original work of author- ship” such as books, newspapers, advertisements, television shows, photographs, and computer soft- ware. The copyright in a protectable work arises upon the creation of a work in a fixed form. A copyright is owned exclusively by the author or cre- ator of the work, unless it belongs to the creator’s employer because it was created by an employee within the course of employment or by a consultant who by agreement prior to cre- ation granted rights to the employer. Currently, a copyright covers a work for a finite period of 70 years plus the life of an author (unless the work is deemed a “work-for-hire”) and is not renewable. Upon creation, a copyright notice © can be affixed to the work identifying the name of the owner and year of first publication, and stating “all rights reserved.” The copyright owner has many exclusive rights to the work, such as the right to make and sell or license copies, publicly perform or display it.

 

For U.S. plaintiffs (including foreign businesses operating in the United States), copyright registration is a prerequisite to filing a suit for infringement. Relief available in such a suit can include an injunction stopping the infringement and money damages that may consist of the copyright owner’s lost profits and any additional profits received by the infringer. Moreover, if the copyright at issue was registered prior to any infringement, the owner may be enti- tled to “statutory damages” ranging from $750 to $30,000 per copyrighted work infringed (which can be increased up to $150,000 if the infringement was willful) and attorneys’ fees.

by John Ohman, Vandenberg & Feliu

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