Garage door industry magazine for garage door dealers, garage door manufacturers, garage door distributors, garage door installers, loading docks, garage door operators and openers, gates, and tools for the door industry.
Issue link: https://idoi.epubxp.com/i/105596
LEGAL&LEGISLATION; (continued from page 10) application, nor is there a need to intend to profit from the work. However, unlike trademark rights, copyright protection is available exclusively from federal law, and can only be enforced if an author has registered the copyrighted work. The distinctions between trademark and copyright are significant for business owners, because they will protect different aspects of a company's intellectual property. For instance, a door dealer's company name and logo are trademarks (or service marks, if the dealer only performs services rather than selling product), as are slogans that are specifically identified with the company's brand. On the other hand, the text on a company's web page is copyrighted material, as may be the instruction manuals and brochures prepared by the company. The importance of figuring out which right you are trying to protect stems mostly from where and how you would need to enforce those rights. As noted above, copyright protection is subject to federal pre-emption, whereas trademarks can be enforced through both federal or state laws. Knowing which type of right you are enforcing will let you evaluate the procedures to use, as well as the potential damages or other remedies you can recover. Steps to Take to Protect Your Rights Without question, the most important way to protect your intellectual property rights is to register those properties. The process of registering a trademark with the PTO is reasonably simple, although it may require the use of an attorney, especially if there are competing companies or similar marks. Once a registration is obtained, the mark will thereafter be protected nationally, and the owner of the mark will be entitled to various remedies in the event of an infringement. Those remedies include the right of injunctive relief, to stop another party from using the trademark in the future, as well as a variety of potential damages. When an injunction is ordered, the infringing party is legally prohibited from continuing to use the mark, and must immediately remove it from advertisements, web sites, and the like. Failure to obey the court order can carry contempt sanctions, including fines or even imprisonment. One element of damages can be a recovery of profits earned by the infringer as a result of the infringement. Another available form of damages are any actual damages that may be proven by the owner of the mark. For certain types of infringements – known as counterfeit marks – treble damages and statutory damages can be recovered. Those damages are available when an infringer duplicates a registered mark, whether or not the user actually knew the mark was registered. Another aspect of protection available from being registered is the ability to recover costs and attorney fees through litigation against the infringing party. Admittedly, this requires going through litigation, but the ability to recover those fees – which can be expensive, especially if there is strong resistance from the infringing party – can help mitigate the risk of going to court. Finally, just the threat of these sanctions can often get an infringing party to stop the misuse. Many times, someone may not realize that the use was improper. One of the ceaseand-desist parties that I contacted had previously been an IDA member, and continued to subscribe to the magazine, but claimed he did not realize that he couldn't continue to use the logo on his website. The combined threat of legal action, along with the available license to use the IDA logo, convinced that individual to reinstate his IDA membership. It is frequently a better outcome – especially for IDA – to bring a company into the fold, rather than trying to hunt down the misuse through the blunt instrument of litigation. Conclusion This article provides only a brief summary of trademark and copyright law, and how those protections can be applied to the intellectual property of IDA and its members. There are endless levels of complexity involving how trademarks in particular can be applied or infringed, such as the issues involving listings on Google+ and other search engines or social networking sites. If a member has a basic question, this firm is available to members to answer those questions. For anything more complex, we can assist members in locating an intellectual property lawyer in your community, who can help you through the processes of registration and/or protection of your rights. Brian J. Schoolman is an attorney with Safran Law Offices in Raleigh. The practice includes construction litigation, commercial litigation, and appellate practice. For more information on how Safran Law Offices went less-paper, and for advice on implementing your own less-paper systems, please contact Joe Zoller at (919) 828-1396 x242, or by e-mail at jzoller@ safranlaw.com. V O L U M E 4 6 I S S U E 1 2 0 1 3 13