We are also going to use the definitions and examples here to peel Quagmyr' s claims of owning the copyright away in layers as one might peel the skin of an onion one layer at a time. What is a trademark?(1)A trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name. An identifiable mark on a product that may be a symbol, words, or both, that connects the product to the trader or producer of that product. A trademark (Commonwealth English: trade mark) is a distinctive sign of some kind which is used by a business to identify itself and its products or services to consumers, and to set the business and its products or services apart from those of other businesses. A trademark is a type of intellectual property, and in particular, a type of industrial property. A trade mark MUST by officially registered and legally restricted to the use of the owner or manufacturer. A registered trademark is a trademark the US Patent and Trademark Office (USPTO) has accepted and registered for a certain class of goods. Registered trademarks are identified with an ®. A Trademark must be able to satisfy applicable statutory requirements. In order to qualify as a trademark, the mark must be used in federally regulated commerce, and the mark must be distinctive. Trademarks may be registered with the US Patent and Trademark Office, and similar offices worldwide. However, in the US and in other countries with legal systems based on English common law, trademark rights also accrue through common law usage. See Service Mark. A symbol and/or name representing a commercial enterprise, whose right to the exclusive use of that symbol is, along with patents and copyrights, one of the fundamental intellectual property rights that is the subject of the WTO TRIPS agreement. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. A word, phrase, logo, symbol, color, sound or smell used by a business to identify a product and distinguish it from those of its competitors. If the business uses the name or logo to identify a service, such as photo copying, it is called a service mark. The legal protections for trademarks and service marks are identical. What are the benefits of a U. S. Trademark(2) Federal trademark registration has
several benefits: Constructive notice nationwide of the trademark
owner's claim. Evidence of ownership of the trademark. Jurisdiction
of federal courts may be invoked Registration can be used as a basis
for obtaining registration in foreign countries. Registration may
be filed with U.S. Customs Service to prevent importation of infringing
foreign goods. How long
does a trademark registration last? The
period of protection for a trademark varies, but can generally be renewed
indefinitely. For a trademark registration to remain valid, an Affidavit
of Use (Section 8 Affidavit) must be filed: (1) between the fifth and
sixth year following registration, and (2) within the year before the
end of every ten-year period after the date of registration. The registrant
may file the affidavit within a grace period of six months after the end
of the sixth or tenth year, with payment of an additional fee. The registrant
must also file a Section 9 renewal application within the year before
the expiration date of a registration, or within a grace period of six
months after the expiration date, with payment of an additional fee. Assuming
that affidavit of use is timely filed, registrations granted PRIOR to
November 16, 1989 have a 20-year term, and registrations granted on or
after November 16, 1989 have a 10-year term. This is also true for the
renewal periods; renewals granted PRIOR to November 16, 1989 have a 20-year
term, and renewals granted on or after November 16, 1989 have a 10-year
term. You can fill out an
application called a trademark application, it is recommended you have
an attorney help you in doing this. After a trademark application
is filed, the USPTO will conduct a search of the records as part of the
official examination process. The official search is not done for the
applicant but rather to determine whether a mark which has been applied
for can be registered. Once you receive a filing receipt containing
the serial number of your application, you may check the status of your
application through the Trademark Applications and Registrations Retrieval
(TARR) database at http://tarr.uspto.gov/ How
long does it take to register a trademark? It
is difficult to predict exactly how long it will take an application to
mature into a registration, because there are so many factors that can
affect the process. Generally, an applicant will receive a filing receipt
approximately three weeks after filing, which will include the serial
number of the application. All future correspondence with the USPTO must
include this serial number. You should receive a response from the Office
within six to seven months from filing the application. However, the total
time for an application to be processed may be anywhere from almost a
year to several years, depending on the basis for filing, and the legal
issues which may arise in the examination of the application. Applicants
should check on the status of their pending applications every six months.
What is the fee for a trademark? The filing fees for a trademark application
are as follows: (1) $275 per class for a TEAS Plus application that
meets the requirements of 37 C.F.R. §§2.22 and 2.23 (2) $325 per
class for an application filed electronically using the Trademark Electronic
Application System (TEAS); or (3) $375 per class for an application
filed on paper. These fees will be charged not only when a new
application is filed, but also when payments are made to add classes to
an existing application. If your application is filed based
on a bona fide intent to use the mark in commerce, additional forms and
filing will be required at a later time.
1. A document granting exclusive
right to publish and sell literary or musical or artistic work. 2.
A copyright is a set of exclusive rights granted by government for a limited
time to protect the particular form, way or manner in which an idea or
information is expressed. Copyright may subsist in a wide range of creative
or artistic forms or "works", including literary works, movies, musical
works, sound recordings, paintings, photographs, software, and industrial
designs. Copyright is a type of intellectual property. 3. The legal
proprietary right to reproduce, have reproduced, publish, and sell copies
of literary, musical, and other artistic works. The rights to literary
properties reside in the author from the time the work is produced - regardless
of whether a formal copyright registration is obtained. However, for legal
recourse in the event of plagiarism or other infringement, the work must
be registered with the US Copyright Office, and all copies of the work
must bear the copyright notice. 4. Copyright is a form of protection
provided by the laws of the United States (title 17, US Code) to the authors
of "original works of authorship," including literary, dramatic, musical,
artistic, and certain other intellectual works. This protection is available
to both published and unpublished works. 5. The right of an author,
artist, publisher etc to retain ownership of works and to produce or contract
others to produce copies. In 1996, the full term of copyright was extended
throughout the European Union to 70 years (previously 50 years in the
UK) from the end of the year in which the author died. 6. Legal rights
to commercialize, license, transfer, broadcast or reproduce an original
piece of work, irrespective of its supporting media. 7. In accordance
with international copyright law, everything is copyrighted, whether or
not it includes a copyright notice. 8. A legal notice that protects
"original works of authorship" both published and unpublished. However,
these works must be in a form accessible to others. You can't copyright
ideas. The copyright is automatic and assumed from the moment the work
is produced. However, it is easy for works to "slip into the public domain."
All that needs to happen is for the author to "publish" without proper
copyright notification. 9. Legal protection given to intellectual
rights such written and published works in a variety of forms such as
books, audio and software. 10. Body of United States federal laws
and international laws that protect original and creative expression that
is in a fixed and tangible form. 11. The guaranteed legal right of
the creator or originator (and heirs or assignees) of a written work or
creative work to publish or duplicate the work or conditionally allow
others to publish or duplicate it. 12. The exclusive right, granted
by law, of the creator of a work (or his/her assignees or employers) to
make or dispose of copies of and otherwise to control the use of a literary,
dramatic, musical, artistic or other work. Ownership of copyright in a
work does not necessarily pass with ownership of the work itself. The
laws relating to copyright are complex and require specialist legal advice.
What is copyright Registration? In general, copyright registration
is a legal formality intended to make a public record of the basic facts
of a particular copyright. However, registration is not a condition of
copyright protection. Even though registration is not a requirement for
protection, the copyright law provides several inducements or advantages
to encourage copyright owners to make registration. What
does Registration do for me? Among
these advantages are the following: 1. Registration establishes a
public record of the copyright claim. 2. Before an infringement suit
may be filed in court, registration is necessary for works of U. S. origin.
3. If registration is made within 3 months after publication of the work
or prior to an infringement of the work, statutory damages and attorney's
fees will be available to the copyright owner in court actions. Otherwise,
only an award of actual damages and profits is available to the copyright
owner. 4. Registration allows the owner of the copyright to record
the registration with the U. S. Customs Service for protection against
the importation of infringing copies. Registration may be made
at any time within the life of the copyright. Unlike the law before 1978,
when a work has been registered in unpublished form, it is not necessary
to make another registration when the work becomes published, although
the copyright owner may register the published edition, if desired.
What can be copyrighted? Copyright protects "original works
of authorship" that are fixed in a tangible form of expression. The fixation
need not be directly perceptible so long as it may be communicated with
the aid of a machine or device. Copyrightable works include the following
categories: 1. literary works; 2. musical works, including any
accompanying words 3. dramatic works, including any accompanying
music 4. pantomimes and choreographic works 5. pictorial, graphic,
and sculptural works 6. motion pictures and other audiovisual works
7. sound recordings 8. architectural works These categories
should be viewed broadly. For example, computer programs and most "compilations"
may be registered as "literary works"; maps and architectural plans may
be registered as "pictorial, graphic, and sculptural works."
What can not be copyrighted? Several categories of material are
generally not eligible for federal copyright protection. These include
among others: " Works that have not been fixed in a tangible form
of expression (for example, choreographic works that have not been notated
or recorded, or improvisational speeches or performances that have not
been written or recorded) " Titles, names, short phrases, and slogans;
familiar symbols or designs; mere variations of typographic ornamentation,
lettering, or coloring; mere listings of ingredients or contents.
" Ideas, procedures, methods, systems, processes, concepts, principles,
discoveries, or devices, as distinguished from a description, explanation,
or illustration. " Works consisting entirely of information that
is common property and containing no original authorship (for example:
standard calendars, height and weight charts, tape measures and rulers,
and lists or tables taken from public documents or other common sources)
What is a derivative work? A typical example of a derivative
work received for registration in the Copyright Office is one that is
primarily a new work but incorporates some previously published material.
This previously published material makes the work a derivative work under
the copyright law. How is
derivative work for copyright decided? To
be copyrightable, a derivative work must be different enough from the
original to be regarded as a "new work" or must contain a substantial
amount of new material. Making minor changes or additions of little substance
to a preexisting work will not qualify the work as a new version for copyright
purposes. What is the cost
for a copyright and what other things do I send in? For
art which is what this article is about you would fill out and file:
1. A properly completed application form. Which would be Form VA: for
published and unpublished works of the visual arts (architectural, pictorial,
graphic, and sculptural works) 2. A nonrefundable filing fee of $30
for each application. 3. A no returnable deposit of the work being
registered. The deposit requirements vary in particular situations. The
general requirements follow. Also note the information under "Special
Deposit Requirements." If the work was first published in the United States
on or after January 1, 1978, two complete copies or phonorecords of the
best edition. In the case of works reproduced in three-dimensional copies,
identifying material such as photographs or drawings is ordinarily required.
Other examples of special deposit requirements (but by no means an exhaustive
list) include many works of the visual arts such as greeting cards, toys,
fabrics, oversized materials. How
long after I have turned in all of the above will it take for me to receive
the copyright certificate?
1. The time the Copyright Office requires to process an application varies,
depending on the amount of material the Office is receiving. 2. A
certificate of registration indicating that the work has been registered,
or if the application cannot be accepted, a letter explaining why it has
been rejected. It takes an average of 5 months before you
will here on your application unless the work is obviously not able to
be copyrighted. What is
prima facie and how could it affect my copyright? If
made before or within 5 years of publication, registration will establish
prima facie evidence in court of the validity of the copyright and of
the facts stated in the certificate. If done after 5 years the person
claiming copyright has a much harder burden of proof. The
definition of Prima facie is: Latin meaning first sight, literally
means "at first sight" or "on the face of it." "Prima facie evidence"
is evidence that is good and sufficient on its face. A plaintiff makes
out a "prima facie case" when he or she presents "prima facie evidence,"
which means that the plaintiff is permitted to prevail on that evidence
alone, unless the defendant can put forth sufficient evidence to overcome
it. (Of the minimum evidence needed to support some conclusion of fact
or law). This term is usually used to establish whether the affirmative
has met a minimum burden of proof. How does this help us understand if
Quagmyr owns the copyright for the BDSM emblem? Now
that you have read through all of this, it is obvious that Quaqmyr has
not filed for a trademark (email from Quaqmyr including on this site shows
that). Quagmyr claimes to own the copyright since 1995, but has never applied
for a copyright from the U. S. Copyright Office. Since he did not apply within the first five years
from the time he created it (1995-2000) he would not qualify under Registration prima facie, therefore he would have
to prove he is the original creator. Quagmyr says about the BDSM Emblem he claims copyright
to is copyrightable to him because: 1. 1) The rims and spokes are of a color
indicating metal, in this case gold, iron and silver 2. The rims
and spokes are of uniform width with the arms rotating clockwise.
3. The inner fields are black 4. The holes in the fields are truly
holes and not dots. How
does all of this help us peel this like an onion one layer at a time?
1. In the symbol for the more thoroughly
Celtic the "three legs embowed" of the heraldic triskelion are represented
now in armour, "spurred and garnished or (gold)." Spiral triskele The
Celtic art symbol of three conjoined spirals may well have had triple
significance similar. Thus metal has been used in the Celtic version
for thousands of years and is now public domain. (see foot note on page
one) 2. The triskele design uses Celtic art in Britain, and was
commonly used from the 5th century BC up to the 8th century AD. A potent
good luck symbol, combining the magic number three with the cyclical
movement of nature, newer forms of the Celtic Triskele is made from
lead free pewter. It is made with a uniform width and the motion and
"arms" are rotating clockwise. 3. Many of the triskele ancient
designs have inner fields of black and Quagmyr shows that even on his
own site. 4. He freely states the only change he has made is to
add "holes" where there are "dots" on other symbols. The "holes" are
exactly in the same place as the dots are in other ancient symbols.
Quagmyr says of the triskele that looks like the BDSM emblem the following:
"This symbol, with dots instead of holes, was the coat of arms of an
ancient Okinawan family and has since become the emblem of a form of
Okinawan martial arts. Reverse the direction of rotation to get the
coat of arms of a rival family. With a red rim, arms, and dots, this
triskele is the emblem of a school of Buddhist Drumming".
Thus Quagmyr admits the ONLY change he has made is to put holes where
there were dots. So that would put his design under the copyright of
derivative work. Remember that to be covered as a derivative
work, it "must be different enough from the original to be regarded
as a "new work" or must contain a substantial amount of new material.
Making minor changes or additions of little substance to a preexisting
work will not qualify the work as a new version for copyright purposes."
So is adding holes where there were previous dots "substantial amount
of new material"? I think not, what do you think? Email me
your thoughts to cajunrose
Footnotes: (1)trademark links:
http://www.uspto.gov/main/faq/ http://www.intellectlawgroup.com/u_s__trademark_faq.htm
http://www.sandiegobusinesslawfirm.com/legal_definition www.florida-incorporation.com/glossary.html
www.indiana.edu/~urcp/image/gloss.shtml www.webcomindia.net/web-hosting-glossary/glossary-t.htm
www.wfed.org/resources/glossary/ www.techtransfer.umich.edu/index/glossary.html
www.marklaw.com/trademark-glossary/T-Z.htm www.roadtowealth.com/useagreement.htm
www.cybercitymommies.com/Glossary.html www.leanlegal.com/dictionary/t.asp
www.policy.ilstu.edu/policy/glossary.htm www.clemson.edu/research/ottSite/ottStart_IntelectDefs.htm
naming.com/resources.html www.wipo.org/about-ip/en/studies/publications/ip_definitions.htm
www-personal.umich.edu/~alandear/glossary/t.html cfdccariboo.com/glossary.htm
www.washington.edu/admin/purchstores/glossary/glossary.cgi www.unmc.edu/ethics/words.html
www.powerhomebiz.com/Glossary/glossary-T.htm www.abheritage.ca/abinvents/glossary.htm
www.asmara.com/terminology.htm www.innovation.sa.gov.au/sti/a8_publish/modules/publish/content.asp
www.giagroup.com/terms-of-trade-t.cfm www.123patent.com/definitions.html
www.business-in-asia.com/glossary5.html wordnet.princeton.edu/perl/webwn
en.wikipedia.org/wiki/Trademark (2) How to links: United
States Patent and Trademark Office, an Agency of the United States
Department of Commerce: http://www.uspto.gov/main/faq/ And The
Intellect Law Group: http://www.intellectlawgroup.com/u_s__trademark_faq.htm
(3)Copyright links: http://www.copyright.gov/ http://www.copyright.gov/circs/circ1.html#wwp
wordnet.princeton.edu/perl/webwn en.wikipedia.org/wiki/Copyright
www.brochure-design.com/brochure-design-publishing-terms.html
library.auraria.edu/findit/gen_guides/libterm.html www.osi.hu/cpd/resources/paglossary.htm
www.tripod.lycos.co.uk/support/glossary/C/ www.nzchamber.co.nz/termsandconditions.asp
www.1stworldlibrary.org/Glossary.html aalbc.com/writers/publishing_glossary.htm
www.teako170.com/glossary2.html osulibrary.oregonstate.edu/archives/handbook/definitions/
john.curtin.edu.au/society/glossary/ (4) prima facie www.uri.edu/affirmative_action/definitions.html
www.edgarsnyder.com/resources/terms/p.html www.courts.state.va.us/glossary_of_court_terms.html
www.utcourts.gov/resources/glossary.htm www.sanderco.com/Glossary%20Pages/P.htm
www.creditworthy.com/info/glossary.html www.sands-trustee.com/pq.htm
www.msm.com.au/glossary/ regweb.oit.unc.edu/residency/manual_terms.php
www.ots.treas.gov/glossary/gloss-p.html www.crfonline.org/orc/glossary/p.html
www.tmsdebate.org/main/forensics/glossary.htm www.courts.state.mn.us/districts/fourth/General/LegalTerms6.htm
www.lrc.justice.wa.gov.au/RevCCJS-p92/finalreport/finalreporthtml/glossary.html |
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