Trademarks are symbols or devices which are distinctive, being capable of distinguishing one supplier of goods and/or services from another. Rights in such symbols as trademarks are gained by use to advertise products or services of a particular class.
A trademark may become the generic name for a product and will no longer be considered distinctive. A trademark owner should carefully monitor use of its trademarks to avoid use in a generic or descriptive sense.
Trademark infringement occurs when there is a likelihood of confusion as to source, sponsorship or affiliation between the products or services of two different suppliers as a result of the similarity of trademarks, the similarity of the products or services, and similar channels of distribution.
It is always advisable to conduct a comprehensive trademark search prior to adopting a trademark.
Copyright protects against copying of artistic expression in tangible form.
Copyright only protects against copying of the subject matter for which a copyright is obtained. Copyright does not protect against reproduction of a particular work which occurs without copying.
A copyright is not required to be registered to remain in existence. However, a federal copyright registration is required to enforce rights under US copyright laws.
A Copyright Registration obtained prior to an act of infringement will provide for statutory damages (damages set by statute), so that proof of actual damages resulting from the infringement do not have to be presented at trial.
LICENSE NEGOTIATING AND COUNSELING
A License is a contract which transfers rights to use a patented invention, a trademark or a copyrighted work without being subject to a suit for infringement.
License Agreements will usually contain provisions for addressing which party assumes the obligations and risks of marketing the licensed products and for enforcing the exclusive rights of the licensed property against infringement by others.
A Royalty is usually paid in return for the grant of a license, often with the amount of royalty payment due being determined according to a percentage of the sales price for a licensed product.
Royalty payments may also be based on a flat rate, such as an annual amount or a price per product. A license may require the payment of a minimum royalty to maintain a license or to maintain the exclusivity of a license.