Frequently Asked Questions

 

Copyright FAQs

 

He stole my idea! Can I sue him?  Ideas are not copyrightable. Only the tangible expression of ideas can be copyrighted. For example, the concept of a “unicorn” is not copyrightable, but a unicorn print design for t-shirts is copyrightable.

 

Is my copyright good in other countries?  The United States has copyright relations with most countries throughout the world, and as a result of these agreements, each country honors each other's citizens' copyrights. However, the United States does not have such copyright relationships with every country.  For a listing of countries and the nature of their copyright relations with the United States please either contact us or view the U.S. Copyright Office for Circular 38a, International Copyright Relations of the United States.

 

Who owns the copyright to something I made at work, my company or me?  Although the general rule is that the person who creates the work is its author, there is an exception to that principle; the exception is a “work made for hire”.  Work made for hire is a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned (as opposed to being paid for an already existing piece of work) from an independent contractor. When a work qualifies as a work made for hire, the employer, or commissioning party, is considered to be the author.


If I live outside the United States, can I register my works with the U.S. Copyright Office?  Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which we have a copyright treaty (see Circular 38a for the status of specific countries), or that are created by a citizen or legal resident of a country with which we have a copyright treaty, are also protected and may therefore be registered with the U.S. Copyright Office. 

 

Trademarks FAQs

 

How do I know if a mark is already taken?  Although not a requirement, an applicant may choose to conduct either a preliminary scan or a full U.S. availability search for conflicting marks prior to applying with the USPTO.

 

Is a trademark search necessary?  A trademark search is recommended to identify potential prior users, so you will not have to incur the time and expense associated with changing a name you have invested time and money in at a later date and to avoid potential liability from a claim of trademark infringement if your mark is the same as or confusingly similar to another mark.

In addition to having a proper search conducted, it is also wise to obtain a trademark search opinion from a competent trademark attorney. Such an opinion can be used as a defense in a trademark infringement suit, which can potentially shield the subsequent user of a registered mark from liability for "willful infringement" as opposed to "innocent infringement." A finding of willful infringement may result in treble damages (that is three times the awarded amount of actual damages) and an award of attorney fees and costs.


Do I have to begin using a trademark before I can apply for federal registration?  No. An applicant may apply for federal registration in three principal ways: (1) an applicant who has already commenced using a mark in commerce may file based on that use (a "use" application); (2) an applicant who has not yet used the mark may apply based on a bona fide intention to use the mark in commerce (an "intent-to-use" application).  The applicant will have to lawfully use the mark in commerce and submit an allegation of use to the Trademark Office before the Trademark Office will register the mark; and (3) under certain international agreements, an applicant from outside the United States may file in the United States based on an application or registration in another country.


I live outside the United States; can I file for federal registration?  Yes. Applicants not living in the United States must designate in writing the name and address of a domestic representative – i.e., a person residing in the United States "upon whom notices of process may be served for proceedings affecting the mark." This person will receive all communications from the USPTO unless the applicant is represented by an attorney in the United States.


I went online to buy the domain for my name and it was already taken. How can somebody else own my personal name? Do I have any recourse if my name is well known?  Someone else can legally own the domain name for your personal name or your company's name. You may have recourse if your name is well known, especially in California which has expanded rights for likenesses and names of well-known persons. You also may be able to get the domain name transferred to you by negotiating with the domain owner through your attorney.


What are trademark licensing agreements?  Trademark licensing agreements are one of the most common IP transactions in the fashion industry. Often a licensor (owner of a trademark) will contract with a licensee (another company) to manufacture and market products using the licensor’s trademark. This benefits a licensor by increasing profits and expanding its brand into new markets, while giving the licensee a pre-existing customer base.

There are many important terms to a licensing agreement, including products covered, exclusivity, specific trademarks, duration and geographic region, compensation, marketing and sales requirements, and quality control. It is important to speak with an experienced IP attorney to find out how to protect your assets.


Someone is infringing my trademark. Is there any danger if I ignore them?  There are several reasons to immediately seek legal counsel regarding infringers. If you wait too long to sue, you may lose your right to sue because your delay will be seen as a contributing factor in increasing the amount of harm. Courts may also find that you abandoned your trademark by not enforcing its use. Delay can also harm your brand by allowing an inferior product damage the reputation of your trademark and to compete with your sales.


Will my U.S. trademark registration protect me in other countries?  No. Trademark protection is region specific. For each country you wish to enforce your trademark, you will need to apply for a trademark under their laws.