Trademarks can be among a company's most valuable assets.
They can include brand names, designs, product shapes, slogans,
and more. Trademarks globally identify the source of a particular
product or service and serve to uniquely distinguish a company's
product from all others. Trademarks also enable a company
to build goodwill, because consumers grow to expect a certain
level of quality from products that bear a particular trademark
even if they do not know the name of the underlying company.
The value of this goodwill cannot be overestimated. Unlike
patents and copyrights, a properly maintained trademark can
remain in force forever.
In the United States, trademark rights are based upon use
of the mark, not registration of the mark. In other words,
one may not secure trademark rights until the mark is actually
used in connection with the public distribution of the goods
or services. Federal "intent-to-use" applications
now allow one to begin the registration process during the
product development period, although registration will not
be complete until the mark is in use.
In many foreign countries, trademark rights are obtained
only by registration. Unlike the U.S., many countries of the
world allow, and some even require, registration of trademarks
before use has actually begun. It is therefore important for
a company to evaluate the potential foreign market for its
goods or services so as to protect its trademark in those
countries. It is especially important for a company to protect
its mark in foreign jurisdictions where counterfeiters abound.
Medlen & Carroll, LLP's role regarding trademarks is
three-fold. First, we help our clients determine whether an
intended mark is a suitable trademark. We do this by verifying
that the intended mark meets the statutory requirements, and
by searching public records to determine if there are other
users of similar marks. Clients should make this important
determination before investing money in advertising, collateral
materials and labeling.
Second, we help our clients obtain federal, state and/or
foreign registrations for their marks. Though registration
is not required to develop common law trademark rights, it
provides certain beneficial statutory rights. We can assist
in determining the scope of protection available for a mark.
Third, we help our clients aggressively protect their trademarks
against subsequent infringers in both domestic and foreign
markets through litigation or licensing. Such aggressive protection
is required to maintain rights in the mark, and serves to
protect the goodwill obtained through use of the mark.
Copyright law protects the original writings of an author.
The word "writings" has broad meaning and includes
any fixed, tangible expression such as books, recordings,
plays, films, software, photographs, images, fabric designs,
sculptures, etc. A copyright is secured automatically when
the work is created in fixed form and runs for a prescribed
period of time. Federal registration is not required. However,
there are definite advantages to registration, such as the
right to sue another party for infringement in federal court.
Copyright is a property right that can develop enormous value
through use or licensing, and should be aggressively protected
as a valuable asset.
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