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Location : Arizona/Michigan

PostSubject: RE: copyright   Sun Feb 14, 2010 11:38 pm

The basis of my new product line is appearance (art/design) i have not invented something new rather I have changed the form of a traditional product. Am I correct in assuming that it is automatically protected by copyright law such as a sculpture or painting would be? I have also taken the additional step of documenting and dating drawings descriptions/names and prototype photos in a set of inventors journals...should these be notarized or just witnessed and do I need to have the witness or notary sign a NDA?
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Bill Goldblatt

PostSubject: Re: RE: copyright   Mon Feb 15, 2010 11:55 pm

Its tough to say without more detail. But this is an interesting topic, because situationally, in a scenario like this, patents, trademarks, and copyrights can all enter the equation at the same time.

If your product line primarily consists of, well, art...yes the art will be covered by copyright law and protection will be automatic. However, if your product line is, say, a decoratively shaped and/or designed dinner plate w/decoratively shaped accessories - which are all meant to be used and not to simply sit in a musuem and look pretty...it's possible that copyright law will not come into play, there is gray area. Design patents are meant to protect the ornamental, non-functional design of an otherwise functional product. Under US law, there is generally not supposed to be overlap between a design patent and a copyright. Of course, this is where complications can arise, because if you tried putting a famous, copyrighted painting on a t-shirt, I am fairly sure you still run afoul of copyright law (i.e. where confusion exists and stakes are high enough, you could do a bit worse than consulting with an attorney).

If what you have falls under the category of "design patent," the good news is that filing a good design patent is quite a bit cheaper than filing a good utility patent. The bad news is that you will only be offered relatively narrow copyright/trademark-esque protection.

You may also, over time, be able to develop trade-dress protection, a type of trademark protection. i.e. if you got to a point where relevant consumers clearly associated particular product designs with you or your company, you could claim trade dress protection, which would apply automatically (although registration would have benefits). This protection would never expire until you stopped marketing your product line, too. In a sense, you can theoretically use a design patent to help buy yourself the time needed to obtain trade-dress protection. Anyways, for more information, Google "trade dress."

If you are going the design patent route, NDAs before you have filed are probably smart. Should you have a notary sign an NDA? I haven't heard that question before, and it's a good one. I'd imagine that would be smart. I am unsure if notaries have a code of ethics to follow and whether confidentiality is implied.

I would say, you might as well get the notebook notarized. But, be aware of the limitations of an inventor's notebook - http://theinventorsmentors.forumo.biz/is-this-true-f28/inventor-s-notebooks-t253.htm.

Meanwhile, if you believe that what you have is protectable by Copyright law - register your copyright(s). Registration is relatively cheap and beats any random notebook re:documentation (at least for copyright-able stuff). Protection is automatic and does not require this, but again, registration is relatively cheap, and it will make it easier for you to enforce your copyright protection down the line if need be. Learn more at Copyright.gov...
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Location : Arizona/Michigan

PostSubject: RE: copyright   Tue Feb 16, 2010 1:45 pm

Interesting...My company name is a word+image design/logo does that fall under copyright? The product is a series of designs that will house a clock insert which is manufatured by another company so basically what i have done is developed a seperate artistic case that holds someone elses clock. Also how is trade dress established simply by use ?
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Bill Goldblatt

PostSubject: Re: RE: copyright   Tue Feb 16, 2010 5:39 pm

Re: the company name - the design/logo would be subject to copyright law. The copyright holder is the designer or possibly yourself if the work was done "for hire" (it is something to that extent). This protects against others directly copying the design/logo or part of it.

You are more interested, though in trademark law. Here is something of an FAQ -


Note the difference between copyright/trademark - copyright law protects the exact artwork, trademark protects the identity. It protects against others using similar designs/names/etc which could cause consumers to confuse your competitors for you. With copyright law, all that generally matters is whether copying occurred...

And once again, trade dress is a type of trademark protection. Like any trademark protection - it is established by use - registration merely enhances protection that does or will exist in the future. However firmly establishing trade dress protection can get more complicated, you may need to be able to show evidence that your trade dress has come to function as a trademark, i.e. as a feature or a "device" that has come to distinctively identify your goods...

Regarding your products, it sounds to me like a design patent(s) is most specific to a direction that you might want to look in. But you might want to register the copyright(s) anyways, as that cannot hurt. I imagine that its also possible that there are steps you could take to leverage potential copyright protection, but that gets complicated and I unfortunately don't think I can help you with guidance there...
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Troy Robison

Location : Sunny, Florida

PostSubject: Re: RE: copyright   Tue Feb 16, 2010 8:06 pm

Great info as always Bill........

Troy Robison

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