Intellectual Property Law
We have literally searched, cleared and registered hundreds of trademarks and service marks. We also help our clients develop great legally enforceable trademarks and we enforce our client’s trademark rights by drafting demand letters.
Every business uses trademarks and service marks to identify goods and services. A strong trademark or service mark often makes the difference between a wildly successful business and its not-so-successful competition.
Examples of this phenomenon are “Mrs. Field’s” for cookies and “Apple” for computers. The Xerox Corporation spends tens of thousands of dollars each year reminding the public that “Xerox” is not a verb.
But what is a trademark? A trademark consists of words, stylized print style and logos (or combinations of the three) that identify a product from a particular manufacturer of the distributor. For example, “Apple” for computers, “Xerox” for photocopy machines, and “Ivory” for soap are trademarks.
A service mark is like a trademark, but it identifies services instead of goods or products. “Daisy Dry Cleaning” identifies a dry-cleaner; “HBO” is a service mark of Home Box Office, Inc., identifying its television programming services.
The general rules applying to trademarks and service marks are essentially the same. Trademarks and service marks, however, differ from trade names. A trade name is the name of a business but is not necessarily a trademark or service mark. For example, “HBO” is the service mark, but the trade name of the business is Home Box Office, Inc.
Unlike patents and copyrights which are valid for a fixed number of years, a trademark is valid as long as it is used. A trademark can be registered on both the federal level and on the state level. A federal trademark application can be filed without actual use if it’s based on an “intent to use” the trademark within a specified amount of time. On the state level, once the mark is used, it can be registered in every state where the product is sold or the service rendered under mark.
Registration gives the owner of the mark greater rights and power than mere usage, including the right to obtain a court injunction to prohibit an infringer from using a mark confusingly similar to yours. In many cases, this can reduce the possibility of a long, drawn-out court battle.
A registered trademark can also be very valuable for licensing to others. For example, the “Op” mark is licensed to hundreds of businesses; the owners of the mark don’t actually make a single stitch of clothing.
A trademark is also valuable because it helps distinguish your business from your competitor’s and the goodwill of your business becomes intertwined with your reputation and trademarks. Several years ago a court reduced the sale price of a business by over 50% because the seller’s alleged trademark was not capable of being protected or registered.
A good, strong trademark can become a very valuable asset of your business because it helps to identify you and separate you from your competitors, and your customers may continue to buy from you and buy new products from you purely based on the strength of your mark. The development and protection of your marks is a business opportunity that should not be overlooked.
At Branfman Mayfield Bustarde Reichenthal LLP our attorneys have been filing, prosecuting and obtaining copyright applications and registrations for over 40 years. We also help our clients by drafting appropriate contracts to protect their copyrights and we enforce our client’s copyrights drafting demand and cease and desist letters.
A copyright is the legal right to control the duplication, display, performance, and adaptation of an “original work of authorship” such as a song, book, screenplay, poster, t-shirt design, work of art or computer program. The copyright comes into existence at the time of creation, but it must be registered with the U.S. Copyright Office in Washington, D.C. before you can sue an infringer.
However, copyright law does not protect titles of songs or films or books, short phrases, ideas or concepts. Copyright law DOES protect your way of expressing your concept, i.e., the way you write your music, words or express yourself on canvas.
The law pertaining to copyrights in the United States traditionally required all publicly distributed copies of a work to include a copyright notice in order to avoid the loss of copyright protection by injection into the public domain. The law on this changed several years ago, but it is easier and better, in the long run, to use the proper notice format from the beginning.
The proper notice consists of three elements:
- The word “copyright” or the © symbol;
- The year of first publication; and
- The name of the owner of the copyright. For example: © 2015 David P. Branfman
No advance permission from the U.S. Copyright Office is required before using a copyright notice. But it is the owner’s responsibility to ensure that the notice is placed on the work.
The owner of the copyright is not necessarily the author of the work. For example, the owner of the copyright may be the person to whom the author has assigned the copyright (e.g., a publishing company) or the owner may be the author’s employer if the work is a “work for hire”.
Registering the copyright is the next step. Copyrights are registered with the U.S. Copyright Office in Washington, D.C. In many jurisdictions, registration of the copyright is required before one can file suit for copyright infringement. Registration should, therefore, be accomplished at the earliest possible date. Sending yourself a copy of your work in the mail does not have any legal effect; nor does submitting your work to a third party such as The Writer’s Guild.
Branfman Mayfield Bustarde Reichenthal LLP specializes in representing individual authors throughout the entire book writing and publishing process. Branfman Mayfield Bustarde Reichenthal LLP recognizes that every author comes from a different background and faces unique challenges. We take satisfaction in giving every author peace of mind when it comes to the legal aspect of book publishing.
Branfman Mayfield Bustarde Reichenthal LLP represents authors of all genres, including romance, science fiction, non-fiction, fiction, business advice, and many others. We apply the same amount of care, pride, and attention to detail in representing our clients that our authors pour into their works.
The book publishing services is provided by Mark Reichenthal. Mark Reichenthal has an extensive background in book publishing, obtaining a Masters of Science in Book/Magazine Publishing from Pace University in New York. He went on to work for Simon & Shuster, Inc. as a contracts analyst, and then at HarperCollins Publishers, LLC as a contracts manager. After obtaining his law degree, he worked at Wiley Publishing, Inc. for four years. Wiley Publishing is best known for its “For Dummies” series, as well as Cliffs Notes.
At Branfman Mayfield Bustarde Reichenthal LLP, we are proud to offer the following services:
- Copyright applications and registrations
- Copyright infringement
- Reviewing book publishing agreements
- Drafting book publishing agreements
- Negotiating book publishing agreements
- Negotiating merchandising deals
- Reviewing literary agent contracts
- Drafting literary agent contracts
- Illustrator agreements
- Licensing agreements