Copyright - Trademark Attorneys
Intellectual Property - Business Lawyers
The law firm of Michael T. Chulak & Associates represents clients throughout California regarding copyrights, trademarks and intellectual property - business matters including the following:
| • | Trademark Registrations and Renewals |
| • | Copyright Registrations and Renewals |
| • | Trademark Infringement, Mediations, Arbitrations, and Litigation |
| • | Copyright Infringement, Mediations, Arbitrations, and Litigation |
| • | Misappropriation and Protection of Trade Secrets |
| • | Domain Name Disputes |
| • | Plagiarism |
| • | Unfair Competition Claims |
| • | Business Formations - Transactions |
| • | Purchase - Sale of Business |
| • | Partnership and Shareholder Disputes |
| • | Franchise Formations and Disputes |
| • | Licensing Agreements |
| • | Asset Protection |
| • | Preparing employment agreements, independent contractor agreements, and policy and procedures manuals |
We represent business owners, buyers, sellers, franchisees, franchisors,
borrowers, lenders, brokers, agents, plaintiffs, and defendants.
The
attorneys with Michael T. Chulak & Associates have extensive expertise in the
areas of business startups, business dissolutions, partnership - shareholder
disputes, reorganizations, and obtaining business capital and loans.
For additional information and a no cost initial consultation, please call us.
See our fee schedule for business formations, trademarks, and copyrights.
Barter for Legal Services
Franchise Glossary
Franchise Questions and Answers
Frequently Asked Questions
| Q. | What is intellectual property? |
| A. | Intellectual property refers to what has been created
by people as opposed to physical property or real property (real estate). Intellectual property includes trademarks, copyrights, trade secrets and patents. |
| Q. | What remedies are available for infringement of intellectual property rights? |
| A. | Courts can grant injunctions, restitution, monetary damages (including actual damages, the amount of the infringer's gain), and punitive damages. In addition, the losing party's intellectual property rights may be canceled, and the losing party may be liable for fees and costs. |
| Q. | What is a trademark? |
| A. | A trademark or service mark is a name, phrase, work or symbol used to identify a specific product or service offered by a specific person or company. A trademark or service mark distinguishes a product of a specific person or company from a similar product of another. Examples: Coke, Kleenex, Xerox |
| Q. | What are the advantages of registering a copyright? |
| A. | As soon as a work is created, the author automatically receives federal copyright protection for the work. Registration of a copyright is not required for protection, but registration has significant advantages: |
| • | Registration of a copyright creates a public record of the copyright claim |
| • | Registration grants a copyright owner the right to sue for copyright infringement |
| • | Registration within five years of publication creates prima facie evidence that the copyright is valid |
| • | When a copyright is registered within three months from publication, the copyright owner may be able to recover attorney's fees and statutory damages without having to prove monetary loss. |
| Q. | What is a trade secret? |
| A. |
Trade secrets include ideas and information that is not known to others. It provides the user with an advantage over its competitors.
Example: Formula for Coke. |
| Q. | What is a logo? |
| A. | A logo is a graphic mark or emblem used to represent a company. |
| Q. | Is it possible to apply for a name, logo and slogan in one application for a trademark? |
| A. | No. They are separate trademarks requiring separate applications. |
| Q. | What is the purpose of obtaining a trademark? |
| A. | There are two primary purposes: |
| 1. | To prevent competitors from stealing the goodwill that a business has created, and |
| 2. | To prevent consumers from being mislead by the use of confusingly similar names, logos and other marks. |
| Q. | What is a mark? |
| A. | Marks include: |
| 1. | Words that are used in a distinctive way. Examples would include Apple Computers and Mustang Automobile; |
| 2. | Coined or made up terms such as Exxon and Kodak; |
| 3. | Graphical arrangements such as Toys R Us (with a backwards R); and |
| 4. | Terms that suggest rather than describe a characteristic or quality such as Jaguar Automobile. |
| Q. | What is a service mark? |
| A. | A service mark is any name, phrase, symbol or device used to identify the source of a service rather than a product. |
| Q. | Our company has created and published informative materials to use with our customers. Now a competitor is using it without our permission. What can I do about it? |
| A. |
If the competitor is using parts of your written materials verbatim, then you may have a claim for copyright violation. On
the other hand, if the competitor is using your concepts, then you may have a claim for unfair business practices.
California's Unfair Competition Law protects competitors and consumers from illegal, fraudulent, and unfair business practices. It provides for relief and civil penalties in cases of unfair competition. |
| Q. | I published information on my Web site. Now I see excerpts from it on a stranger's Web site. What are my rights? |
| A. | If you designated the Web site pages as copyright you may be entitled to an injunction to stop the unauthorized use. If the copying and republishing is of a registered copyright of a book or e-book with the U.S. Copyright Office, then you may be entitled to an injunction to stop the misuse and to statutory damages and fees for copyright infringement. |
| Q. | How can I protect my trade secret? |
| A. | By keeping it a secret. Trade secrets are not subject to trademark protection or patent. However, trade secrets can be valuable intellectual property rights that can be protected through the courts. |
| Q. | Are trade secrets registered with any government agency? |
| A. | No. They must be kept absolutely secret. |
| Q. | A former employee has provided a new employer with our trade secrets without permission. Is there anything I can do? |
| A. |
Yes. California law protects trade secrets and provides for remedies for their misappropriation, including injunctive relief,
general and punitive damages, and attorney fees.
Generally, a trade secret misappropriation claim requires a finding that the offending person knows or has reason to know that the information is a trade secret, that it was acquired improperly, and that it is being used without the owner's express or implied consent. |
| Q. | I created software then licensed to another company. That company now refuses to pay me. How can I enforce my rights? |
| A. | You can enforce your intellectual property rights and enforce your license agreement. If initial requests to cure are unsuccessful then you should file a lawsuit requesting a restraining order, seizure order, and/or preliminary injunction, and a demand for damages, costs, and attorney fees. |
| Q. | We are at the stage of product development where we need to solicit external support, and the most likely source is a company that might be interested in marketing our invention. How do I protect my intellectual property rights? |
| A. | You should always protect any proprietary information at the earliest stage of development and maintain an active protection program. You should not communicate the details of your invention in any discussions, whether oral or written without a signed confidentiality agreement. All subsequent communications to any outside company should have a cover letter identifying the information as proprietary and privileged and within the scope of the confidentiality agreement. Under the terms of the confidentiality agreement, the company is not to divulge your information to any other company and not use it for any other purpose except to evaluate for a business relationship. The agreement must also specify that providing the information to the company does not mean that you are transferring or licensing your intellectual property rights to them. |
| Q. | How can I protect computer software that I wrote? |
| A. | Computer software can be protected by copyright by the original author or to the author's assignee. Depending on the nature of the software with regard to novelty and non-obviousness it may be eligible for a patent. While most ordinary programs, or the mathematical algorithms used, usually are not patentable, it may be possible for patent protection of algorithms used to implement novel and non-obvious processes. Copyright is the most widely used protection for computer software because it is easier and less costly to obtain. Copyright protection can be obtained for original software, whether an application program, an operating system or a database. The holder of the copyright may license the software to others by contractual agreement. Copyright protection only protects the specific work, not the idea. Others may independently create programs with identical or equivalent capabilities and not infringe your copyright. |
| Q. | What is "work made for hire"? |
| A. |
A copyright is owned by the author or artist who created the work; unless the author sells (assigns) the copyright or the work
was "made for hire." When a work is created by an employee while on the job or by an independent contractor who was hired to
create the specified work, the work is usually considered as a made for hire work. The copyright on work made for hire belongs
to the employer or the party who commissioned the work.
In general, an employee who writes or creates a work for an employer is creating a work for hire. An independent contractor may have copyright to a work unless there is an agreement with the employer which should include an assignment of the copyright to all work product produced. |
| Q. | What is a right of publicity claim? |
| A. | The right of publicity is a claim that you have used someone's name or likeness to your commercial advantage without consent and resulting in injury. The plaintiff generally must prove that you are using their image or likeness for advertising or other solicitations. Freedom of speech rights protect your use of a public figure's name and likeness in a truthful way, but you can still be liable if a court determines that your use implied a false endorsement. |
| Q. | What is a copyright? |
| A. | It is a set of exclusive rights granted to the author or creator of an original work such as a book, article, music, motion picture, or computer program. These rights can be licensed, sold and / or assigned. |
| Q. | What is a patent? |
| A. | A patent is the grant of a property right or privilege made by the government to a person who invents something. A patent gives the inventor the right to prevent others from making, selling or using the same process or item for a period of time. |
| Q. | What agency of the government grants patents? |
| A. | Patents are granted by the United States Patent and Trademark office. |
| Q. | What can be patented? |
| A. | Inventions that fall into one of four classes: |
| 1. | Machines |
| 2. | Processes |
| 3. | Articles of manufacturer |
| 4. | Composition of matter |
| A. | Patents must not be frivolous and proof must be provided that the invention will be operable. It must also have some utility. |
| Q. | Can a patent be sold? |
| A. | Absolutely. They can be sold in their entirety or an interest can be sold. |
Glossary of Intellectual Property Terms
Intellectual Property Law and Licensing
Intellectual property (IP) law encompasses the protection a wide variety of property created by businesses, authors, musicians, artists, and inventors. Copyright, trademark, trade dress, trade secret, and patent laws protect intellectual property. IP law protects the property rights of businesses and individuals from infringement, unauthorized use, and misuse. By maintaining property rights, an individual or business can control the use and distribution, including the sale and licensing of such property.
Licensing is a key business strategy because it is a way to gain earnings from inventions and creative works. Licensing is the process where you grant some rights to intellectual property you own to others. It is really a business relationship between the licensor, who owns the IP, and the licensee, who is given the limited right to use it.
Technology licensing by the author or inventor of a new product or technology requires both IP protection and contractual agreements to realize an economic benefit from its production. For instance, the author of a software program or an inventor can grant a license to a corporation that has the resources to produce and distribute the embodied intellectual property.
Copyrights are exclusive rights granted to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. To qualify for copyright, the creative work must be original and must exist in some tangible form; it cannot exist only in the author's mind. The owner of copyright has the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. Copyrights arise automatically as soon as creative works are made; however, registration affords owners of copyrighted materials additional legal benefits.
A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. Trademarks allow businesses to protect the symbolic information that identifies the source of goods and services by preventing use of the information by competitors. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. To receive protection, a word, name, symbol, or device must be distinctive and must be used in commerce. A trademark need not be registered, but if it is registered the owner of the mark has put others on notice that the trademark is already in use.
Trade dress is a distinctive visual appearance of a product or service that uniquely identifies the product or service to signify the source to consumers, and is similar to trademark. The shape, color, and design of a product or its packaging can be trade dress as can be the design of a building, or the decor and color scheme of a restaurant or store. To gain registration or common law protection under the Lanham Act, a trade dress must not be "functional." That is, the configuration of shapes, designs, colors, or materials that make up the trade dress in question must not serve a utility or function outside of creating recognition in the consumer's mind.
Trade secrets are a class of proprietary information that has commercial value and are "owned" by a business entity. Trade secret laws protect formulas, patterns, devices, and compilations of information from use by unauthorized persons. Protection of trade secrets with other parties is by contract and formal agreements that are legally enforceable by the trade secret owner.
A patent for an invention is the grant of a property right to the inventor for new and non-obvious technologies. A patent gives the inventor "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States for a period of time, usually 20 years. During this time the inventor can profit from the invention by controlling its availability. Patents can be granted for designs of manufactured products, machines, processes, and combinations of matter, and in certain cases for plants and other life forms. A United States patent must be applied for through the US Patent and Trademark Office and issued US patents are effective only within the US, US territories, and US possessions.
Franchise Your Business
The attorneys with Michael T. Chulak & Associates can provide you with the legal services needed to franchise your business for a fixed legal fee. Payment plans are available and we may accept all or a part of your fee based upon barter. Call us to discuss your plans to develop a franchised business. Initial consultations are free.
Disclaimer
The information presented on this site was prepared for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for consulting with a licensed attorney in your state. The law is constantly changing. In addition, the information presented may not be up – to – date or 100% complete. Our attorneys are licensed to practice law in California and seek to represent clients only in California. Sending us an email or other communication does not create an attorney – client relationship. Only signing a retainer agreement will establish an attorney – client relationship. This is an advertisement.
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