When is the Proper Time to File for Patent, Trademark, Copyright Protection?

Trademarks are privy to a certain level of common law protection. This protection is generated through actual use in commerce and is afforded to the first user of the mark in commerce within the geographic area in which it is used. Filing for a trademark registration on either the state or national level is not required but can expand and enhance the common law protections granted to the first user of the mark. A state trademark registration will provide protection within the specific state. A federal trademark registration will protect goods or services sold in interstate commerce, or between the United States and another country. A federal registration provides exclusive rights to the mark throughout the U.S., as to any mark first used after the filing of the registration. This prevents latecomers from using a similar trade or service mark on similar goods or services anywhere in the U.S.

Similar to trademarks, copyrights are afforded protection under common law.  Copyright automatically vests in the author of an original work at the time the work is expressed in a tangible medium. However, a copyright infringement case cannot be filed in federal court until the user has registered his/her mark. Moreover, an author may not seek statutory damages if the registration is filed after the infringement begins.

A patent registration must be applied for within one year of any of the following: 1) any public use of the invention by the inventor, a sale of the invention, an offer of sale, or public use of the invention in the United States, or 2) any description of the invention by the inventor in a published document in any country.  Failure to timely file a patent application results in the invention becoming part of the public domain.  Unlike trademarks and copyrights, there is no common law protection for inventions or methods of use. The exclusive rights afforded by a patent are purely statutory and do not exist without formality.

Tags: , , , , ,

Comments are closed.

Hot Topics


Practice Areas

Trade Secrets
Internet Law
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of a lawyer/client relationship.