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Trademark & Copyright Registration

Trademark & Copyright Registration

What is Trademark?

A trademark or 'trade mark' is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities.

A trademark is designated by the following symbols

(for an unregistered trade mark, ie. a mark used to promote or brand goods)
   
® (for a registered trademark)

A trademark is a type of intellectual property, and typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories.

The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand.

Fundamental Concepts

The essential function of a trademark is to exclusively identify the commercial source or origin of products or services, such that a trademark, properly called, indicates source or serves as a badge of origin. In other words, trademarks serve to identify a particular business as the source of goods or services. The use of a trademark in this way is known as trademark use. Certain exclusive rights attach to a registered mark, which can be enforced by way of an action for trademark infringement, while unregistered trademark rights may be enforced pursuant to the common law tort of passing off.

It should be noted that trademark rights generally arise out of the use or to maintain exclusive rights over that sign in relation to certain products or services, assuming there are no other trademark objections.

Different goods and services have been classified by the International Classification of Goods and Services into 42 Trade Mark Classes (1 to 34 cover goods, and 35 to 42 services). The idea of this system is to specify and limit the extension of the intellectual property right by determining which goods or services are covered by the mark, and to unify classification systems around the world.

Symbols

The two symbols associate trademarks (the trademark symbol) and ® (the registered trademark symbol) represent the status of a mark and accordingly its level of protection. While can be used with any common law usage of a mark, ® may only be used by the owner of a mark following registration with the relevant national authority, such as the U.S Patent and Trademark Office (USPTO or PTO). The proper manner to display either symbol is immediately following the mark in superscript style.

Registration

The law considers a "trademark" to be a form of property. Proprietary rights in relation to a 'trademark' may be established through actual use in the marketplace, or through registration of the mark with the trademarks office (or "trademarks registry") of a particular jurisdiction. In some jurisdictions, trademark rights can be established through either or both means. Certain jurisdictions generally do not recognize trademarks rights arising through use.

The registration process entails several steps prior to a trademark receiving its Certificate of Registration. First, an Applicant, the individual or entity applying for the registration, files an application to register the respective trademark. The application is then placed in line in the order it was received to be examined by an examining attorney for the Trademark Office. Second, following a period of anywhere from three to six months the application is reviewed by an examining attorney to make sure that it complies with all requirements in order to be entitled to registration. This review includes procedural matters such as making sure the applicant's goods or services are identified properly.

It also includes more substantive matters such as making sure the applicant's mark is not merely descriptive or likely to cause confusion with a pre-existing applied-for or registered mark. If the application runs afoul of any requirement, the examining attorney will issue an office action requiring the applicant to address certain issues or refusals prior to registration of the mark. Third, and after the examination of the mark has concluded with no issues to be addressed or an applicant has responded adequately to an examining attorney's concerns, the application will be published for opposition. During this 4 months period third-parties who may be affected by the registration of trademark may step forward to file an Opposition Proceeding to stop the registration of the mark.

If an Opposition proceeding is filed it institutes a case before the Trademark Trial and Appeal Board to determine both the validity of the grounds for the opposition as well as the ability of the applicant to register the mark at issue. Fourth, provided that no third-party opposes the registration of the mark during the opposition period or the opposition is ultimately decided in the applicant's favor the mark will be registered in due course.

What is Copyright?

Copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. These rights can be licensed, transferred and/or assigned. Copyright lasts for a certain time period after which the work is said to enter the public domain. Copyright applies to a wide range of works that are substantive and fixed in a medium. Some jurisdictions also recognize "moral rights" of the creator of a work, such as the right to be credited for the work.

Copyright has been internationally standardized, lasting between fifty and one hundred years from the author's death, or a shorter period for anonymous or corporate authorship. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.

Exclusive rights granted by copyright

"Copyright" is literally, the right to copy, though in legal terms "the right to control copying" is more accurate. 'Copyright' are exclusive statutory rights to exercise control over copying and other exploitation of the works for a specific period of time. The copyright owner is given two sets of rights: an exclusive, positive right to copy and exploit the copyrighted work, or license others to do so, and a negative right to prevent anyone else from doing so without consent, with the possibility of legal remedies if they do.

Copyright initially only granted the exclusive right to copy a book, allowing anybody to use the book to, for example, make a translation, adaptation or public performance. At the time print on paper was the only format in which most text based copyrighted works were distributed. Therefore, while the language of book contracts was typically very broad, the only exclusive rights that had any significant economic value were rights to distribute the work in print. The exclusive rights granted by copyright law to copyright owners have been gradually expanded over time and now uses of the work such as dramatization, translations, and derivative works such as adaptations and transformations, fall within the scope of copyright. With a few exceptions, the exclusive rights granted by copyright are strictly territorial in scope, as they are granted by copyright laws in different countries. Bilateral and multilateral treaties establish minimum exclusive rights in member states, meaning that there is some uniformity across Berne Convention member states.

The print on paper format means that content is affixed onto paper and the content can’t be easily or conveniently manipulated by the user. Duplication of printed works is time-consuming and generally produces a copy that is of lower quality. Developments in technology have created new formats, in addition to paper, and new means of distribution. Particularly digital formats distributed over computer networks have separated the content from its means of delivery. Users of content are now able to exercise many of the exclusive rights granted to copyright owners, such as reproduction, distribution and adaptation.

Works subject to copyright

The type of works which are subject to copyright has been expanded over time. Initially only covering books, copyright law was revised in the 19th century to include maps, charts, engravings, prints, musical compositions, dramatic works, photographs, paintings, drawings and sculptures. In the 20th century copyright was expanded to cover motion pictures, computer programs, sound recordings, Choreography and architectural works.

Copyright Law is typically designed to protect the fixed expression or manifestation of an idea rather than the fundamental idea itself. Copyright does not protect ideas, only their expression and in the Anglo-American law tradition the idea-expression dichotomy is a legal concept which explains the appropriate function of copyright laws.

The copyright symbol

The copyright symbol, designated by © (a circled "C"), is the symbol used in copyright notices for works other than sound recordings (which are indicated with the 'P' in a circle symbol). The use of the symbol is described in United States copyright law, and, internationally, by the Universal Copyright Convention. The C in circle stands for copyright.

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